Consent Laws
Texas

Under Texas law, sexual assault “without the consent” of the other person arises when:

• (1) the actor compels the other person to submit or participate by the use of physical force, violence, or coercion;
• (2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person or to cause harm to the other person, and the other person believes that the actor has the present ability to execute the threat;
• (3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
• (4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
• (5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
• (6) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge;
• (7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
• (8) the actor is a public servant who coerces the other person to submit or participate;
• (9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor;
• (10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser;
• (11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under the Texas Family Code; or
• (12) the actor is a health care services provider who, in the course of performing an assisted reproduction procedure on the other person, uses human reproductive material from a donor knowing that the other person has not expressly consented to the use of material from that donor;
• (13) purposes of the crime of sexual battery a victim is incapable of consent if (1) the sexual contact with the victim occurs during the course of a consultation, examination, ongoing treatment, therapy, or other provision of professional services described in (2); and (2) the defendant, whether licensed by the state or not, is a member of the clergy, healthcare professional, or alcohol and drug abuse counselor who was treating the victim for a mental, emotional, or physical condition. Tenn. Code Ann. §39-13-505
• (14) the actor is a caregiver hired to assist the other person with activities of daily life and causes the other person to submit or participate by exploiting the other person’s dependency on the actor.

Texas Penal Code Ann. §22.011(b).

No.

17 years old. Texas Penal Code Ann. §22.011(a) & (c); Texas Penal Code Ann. §21.011.

Yes, it is an affirmative defense if the victim was a child of 14 years of age or older and the actor was not more than 3 years older than the victim at the time of the offense. Texas Penal Code Ann. §22.011(e).

No.

Yes, a sexual assault is considered to occur without the consent of the other person where the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it. Texas Penal Code Ann. §22.011(b)(4).

In considering whether a person is incapable of resisting a sexual act due to mental disease or defect, we focus on whether he has the presence of mind or force of will to resist. Though a person may have the physical capability to resist, the question is whether he has the mental wherewithal to harness that capability. Hopkins v. State, 615 S.W.3d 530, 541 (Tex. App. 2020).

Yes, a sexual assault is considered to occur without the consent of the other person if the actor knows the other person is physically unable to resist. Texas Penal Code Ann. §22.011(b)(3).

Yes, a sexual assault is considered to occur without the consent of the other person if the other person has not consented and the actor knows the other person is unconscious or if the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring. Texas Penal Code Ann. §§22.011(b)(3) & (5).

Yes, a sexual assault is considered to occur without the consent of the other person if the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge. Texas Penal Code Ann. §22.011(b)(6).

Yes, a sexual assault is considered to occur without the consent of the other person where:

• the actor is a public servant who coerces the other person to submit or participate;
• the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor;
• the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser;
• the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under the Texas Family Code;
• the actor is a health care services provider who, in the course of performing an assisted reproduction procedure on the other person, uses human reproductive material from a donor knowing that the other person has not expressly consented to the use of material from that donor;
• the actor is a coach or tutor who causes the other person to submit or participate by using the actor’s power or influence to exploit the other person’s dependency on the actor; or
• the actor is a caregiver hired to assist the other person with activities of daily life and causes the other person to submit or participate by exploiting the other person’s dependency on the actor. Texas Penal Code Ann. §§22.011(b)(8) – (14).

Note that it is an affirmative defense to the offense of sexual assault of a child, which is a person under 17 years old, if the actor was the spouse of the child at the time of the offense. Texas Penal Code Ann. §22.011(e)(1).

An employee of a public or private primary or secondary school commits the felony offense of an Improper Relationship Between Educator and Student if the employee:

• (1) engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works;
• (2) holds a position of teacher, teacher intern, teacher trainee, librarian, educational aide, administrator, educational diagnostician or school counselor and engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person the employee knows is:
  • (A) enrolled in a public or private primary or secondary school, other than a school described in (1) above; or
  • (B) a student participant in an educational activity that is sponsored by a school district or a public or private primary or secondary school, if students enrolled in a public or private primary or secondary school are the primary participants in the activity; or
• (3) engages in online solicitation of a minor (under Texas Penal Code Ann. §33.021) with a person described in (1) above, or a person the employee knows is a person described in (2)(A) or (2)(B) above, regardless of the age of that person. Texas Penal Code Ann. §21.12(a).

Note that it is an affirmative defense to improper relationship between educator and student if the actor was the spouse of the enrolled person at the time of the offense.  Texas Penal Code Ann. §21.12(b).

Generally, yes where consent is an element of the crime such as with sexual assault. Texas Penal Code Ann. §22.011(b).

However, a sexual assault is considered to be without consent where the actor is a public servant, mental health services provider or clergyman, employee of a facility where the other person is a resident, health care service provider performing an assisted reproduction procedure, coach or tutor or a caregiver hired to assist the other person with activities of daily life. Texas Penal Code Ann. §§22.011(b)(8) – (14).

Persons under 14 years of age are legally incapable of giving consent to sexual intercourse. May v. State, 919 S.W.2d 422, 423 (Tex. Crim. App. 1996).

No, voluntary intoxication does not constitute a defense to the commission of crime. Evidence of temporary insanity by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried. Texas Penal Code Ann. §8.04.

For temporary insanity by intoxication the question is whether there is evidence that the defendant was intoxicated to the point that defendant was unable to understand the wrongfulness of the conduct, not whether the conduct was out of character, without precedent, or without rational explanation. McBurnett v. State, 2021 629 W.W.3d 660, 665 (Tex. App. May 6, 2021).