Child Sexual Assault

A psychosexual evaluation is a method utilized by courts, prosecutors, and defense attorneys to provide a scientific basis to determine with a person is likely to be a repeat sexual offender. The evaluation is performed by a state-licensed mental health professional and, if requested by the defense, it is completely confidential for the client and their attorney.

Psychosexual evaluations are routinely performed to:

• Identify deviant sexual behavior patterns
• Evaluate the risk level of sexual and non-sexual recidivism
• Recommend the type of treatment options that will be most beneficial to the client
• Identify specific risk factors that should be targeted during treatment

Explaining the Psychosexual Evaluation Process

How long does the evaluation last?

The evaluation usually lasts a full day, but can sometimes spill over into a second day. However, the entire evaluation can be completed in about six hours. A typical schedule for the evaluation will last from 8:30am – 5:00pm, with breaks between sections of tests.

The Evaluation Consists of Four Parts

1. Clinical interview
2. Psychometric tests
3. Physiological assessment of sexual arousal
4. Risk assessment

Clinical Interview

The clinical interview lasts about one hour and serves to help the therapist and the client get to know each other before the tests begin. It also gives the client an opportunity to talk about the allegation with the therapist. This is the point where the therapist will document their initial impressions and provide detailed notes on the client. It is important that the person is honest and open about the nature of the allegation. If conducted at the request of the individual’s attorney, the evaluation is covered under the attorney-client privilege and the attorney cannot disclose the results or what was said without the client’s permission.

Psychometric Tests

The psychometric tests are comprised of a personality inventory, sexual inventory, and intelligence test. These tests are primarily in written formats, including true or false questions. The personality inventory allows the therapist to evaluate the client’s personality type, which will be factored in throughout the assessment. The sexual inventory is the longest portion, consisting of about 560 items. It is a thorough assessment of the client’s sexual history, background, and development. Again, this portion of the test factors into the therapist’s overall assessment of the client’s situation. The final portion is the intelligence test. This portion only lasts about twenty minutes and is essentially an IQ test. The intelligence test is important because it allows the therapist to effectively advocate that the client can handle the mental demands of treatment.

Physiological Assessment of Sexual Arousal

The physiological assessment helps the therapist understand whether the allegation would be outlier behavior for the client or not. This is primarily achieved by gaining an understanding of the client’s sexual preferences using the penile plethysmograph (PPG). The PPG operates by measuring blood pressure and erectile changes in the penis of the client due to the introduction of different visual stimuli. The PPG also monitors the client’s breathing to determine whether they’re attempting to deliberately falsify the results. Because accurate results are required for the therapist to make a strong evaluation on behalf of the client, the client should not attempt to cheat the PPG. Due to the nature of the visual stimuli and the physical intrusiveness of the PPG, this is considered the most difficult part of the evaluation for individuals being tested.

Rarely, a polygraph will also be performed. The polygraph is only used when the client denies any actual physical contact because the chance of recidivism is greatly diminished if there is no physical contact. If the polygraph is failed, then the results will not be used in the therapist’s evaluation because they do not indicate anything significant about the client’s situation.

Risk Assessment

The risk assessment consists of two parts, general criminality and sexual recidivism. The general criminality portion determines the client’s risk of recommitting crimes, while the sexual recidivism portion determines the client’s risk of recommitting sexual crimes. This part of the psychosexual assessment is extremely important because it allows the therapist to assign the client a risk profile to reoffend, both in general criminality and in sexual criminality. The therapist’s testimony that the client is a low risk to reoffend can be crucial for the defense in asserting that the client does not deserve a harsh punishment for the original allegation.

Confidentiality

When the psychosexual evaluation is obtained as part of the defense case preparation, it is completely confidential. Only the client and his attorney will be provided with it. Neither the client’s spouse nor any government entity can see the evaluation, unless it is used in court, and the defense attorney will only use the evaluation in court if it is beneficial to the client’s case. The evaluation is occasionally used at trial, but it is more often used during the plea-bargaining stage to improve the client’s case or during a sentencing portion of a trial.

Advice for Clients and Attorneys Regarding Psychosexual Evaluations

Clients should be honest with the therapist because it allows for a more reliable and accurate evaluation, which will be more beneficial to the client’s case. If the client lies or attempts to cheat the tests, the therapist will not be able to provide a good evaluation and may not be able to testify as well on behalf of the client.

Attorneys should provide information the therapist regarding the charges being made against the client (within the limits of discovery laws). Not only does this allow the therapist to factor that into the evaluation, but it also bolsters their testimony in court as they have accounted for the charges and facts of the case already. The stronger and more complete the therapist’s evaluation, the more likely that it will stand up in court against tough cross-examination.

"Sexting" has become a very popular activity amongst teenagers and young adults in the last several years. This generation sees it as just another ordinary part of life with cell phones. For parents, prosecutors, and law enforcement officers, however, sexting is a dangerous habit that has wide-ranging effects. While sexting has the potential to severely damage lives and reputations, the very nature of it makes it difficult for authorities to adequately address the problems it causes. This article will explore what sexting is, how common it is, the applicable laws, and the practical implications of applying those laws to common instances of sexting.

What Is Sexting?

Sexting is derived from the words “sex” and “texting.” It means the sending of nude or sexually explicit photos or sexually suggestive text messages by text, email, or instant messenger using a mobile device. Many times, the person depicted in the photographs has either consented to the photo being taken or has taken the pictures of themselves. Typically, the person in the photograph, either on their own initiative or at the request of another, takes the photo and then voluntarily sends it to a significant other or a person they are attracted to. The intent is generally for the picture to be kept private by the initial recipient.

The problem with sexting arises when the photograph is either posted on the internet, usually through a social media platform, or is shared with others through text or email. In many cases, this posting or sharing is not consented to by the person depicted in the picture.

How Common is Sexting?

A study done by Drexel University in 2015 found that over 80% of adults surveyed admitted to sexting within the last year. The study was presented during the American Psychological Association’s 2015 convention. According to GuardChild.com, 20% of all teenagers have sent or posted nude or semi-nude photos or videos of themselves and 39% of teenagers have sent sexually suggestive messages through either email, text, or instant messaging.

Criminal Laws Applicable to Texting in Texas

In the State of Texas, there are several laws which could be used to prosecute instances of sexting, especially if it involves a minor. These laws can range from a Class C misdemeanor to a first-degree felony.

Unlawful Disclosure or Promotion of Intimate Visual Material

Texas law makes it unlawful for a person to intentionally disclose photographs or videos of a person engaged in sexual conduct or with their intimate parts exposed without the consent of the person depicted if the person in the photo/video had a reasonable expectation that the material would remain private, the person depicted is harmed and the identity of the person in the photo/video is revealed through the disclosure. This is a Class A misdemeanor.

Sale, Distribution, or Display of Harmful Material to a Minor

A person who sells, distributes, or shows “harmful material” to a minor, knowing that the material is harmful and the person is a minor, or displays harmful material and is reckless about whether a minor is present who would be offended is guilty of this offense in Texas. This is a Class A misdemeanor unless the person uses a minor to commit the offense, and then it is a third-degree felony.

Sexual Performance by a Child

The offense of sexual performance of a child is committed when a person employs, authorizes, or induces a child under the age of 18 to engage in sexual conduct. In this context, “sexual conduct” includes the lewd exhibition of the genitals, anus or breast. This offense is a third-degree felony, but if the victim was under the age of 14 at the time of the offense, then it is enhanced to a second-degree felony.

Possession or Promotion of Child Pornography

A person commits the offense of possession or promotion of child pornography if he intentionally or knowingly promotes or possesses with the intent to promote material that depicts a child engaged in sexual conduct knowing that the material depicts a child. This is a third-degree felony, but it can be enhanced to a second or first-degree felony.

The Sexting Law - Electronic Transmission of Certain Visual Material Depicting Minor

This is Texas’ “sexting” statute. Under it, a person under the age of 18 commits an offense if he intentionally or knowingly possesses or promotes to another minor visual material that depicts a minor engaged in sexual conduct by electronic means if he produced the material or knows that another minor produced it. This is a Class C misdemeanor, but it can be enhanced to either a Class B or Class A misdemeanor in certain situations.

Practical Implications

An instance of sexting in Texas can be prosecuted under any of the above laws. However, there are problems with each of these statutes that makes it difficult to prosecute sexting cases under them. These problems are what led the Texas legislature to create the sexting law several years ago.

Problems with the Sexting Law

However, there are two major problems with this law. First, the sexting statute only applies to persons under the age of 18. This means that an 18-year-old high school student who shares sexting photos with others in his high school cannot be prosecuted under this law. The second problem with it is that it creates a defense to prosecution if the person in possession of the visual material destroys it. So, the law that makes sexting illegal also allows those who break the law to get away with it by destroying the evidence. Because of these problems, it is almost impossible to prosecute someone under this law.

Problems with Using the Other Laws to Prosecute Sexting

The main issue with using the other laws laid out above to prosecute sexting cases is that they were not created to address this specific behavior. So, it becomes a situation where prosecutors are having to shove a square peg into a round hole to make it work in many cases. For instance, the Unlawful Disclosure or Promotion of Intimate Visual Material law requires that the person in the pictures had a reasonable expectation that the photos would remain private. GuardChild.com found in their compilation of sexting statistics that 44% of teenagers believe it is common for sexually suggestive text messages to be shared with others, and 35-40% of them feel that it is common for nude or semi-nude photos to be shared with others beyond the intended recipient. These beliefs undermine the “reasonable expectation of privacy” prong of the law.

Similarly, the Possession or Promotion of Child Pornography statute is problematic when used in sexting cases because it does not include any protections from prosecution for the victim. This means that when a teen age girl takes a nude photo of herself and sends it to her boyfriend, who then shares it with other students, the girl who took the photo of herself is as guilty of promotion of child pornography as the boy who shared it with others. Most people would agree that the victim shouldn’t face charges for child pornography. Yet, prosecutors must either prosecute both of them or do nothing.

Sex Offender Registration for a Sexting Conviction

Another major practical ramification of sexting is that if a person is convicted or adjudicated for sexting under the possession or promotion of child pornography law, he will be required to register as a sex offender for life if the person is prosecuted in the adult system or for ten years past the end of his sentence if he is adjudicated as a juvenile. Depending on the facts of the case, this can be a very harsh consequence for a behavior that is so common in this modern world we live in. But it is important for anyone who engages in sexting, and their parents, to realize that sex offender registration for life is a very real possibility if prosecuted.

Conclusion

While many parents may not know that sexting even exists, the fact remains that it is much more common than we would like to think. It can have devastating consequences for the person depicted in the photos, and for anyone who shares or possesses these photos. Many teenagers engage in this behavior without realizing what the ramifications can be.

This is one area where the law hasn’t caught up to technology yet. So, the job of protecting our children from the harms associated with sexting still falls primarily to parents. It is important for parents to educate themselves about the practice and then talk to their teenagers and pre-teens about the dangers of sexting.

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Is Sleep Sex a Real Thing and How Can it Apply to Sexual Allegations?

You may have heard of sleepwalking, or sleeptalking, but what about sleep sex? The idea of sleep sex or "sexsomnia" is typically worth a few laughs when you first hear about it, but it is a very real disorder within the parasomnia umbrella of disorders (classified by the DSM-V).  Google it (with caution, of course).  You'll find many articles discussing real people that suffer from sexsomnia.

What is "Sexsomnia?"

Also called "sleep sex," sexsomnia is a type of parasomnia, where the brain is caught in transition between sleeping and waking states. As with other parasomnias -- including sleepwalking, sleep talking, and, sleep driving -- someone who is sleep sexing can seem fully awake and aware, even as he or she is masturbating, or fondling, initiating intercourse with, or even sexually assaulting a bed partner. But he or she truly is asleep.

See Web MD.  There have been several sleep studies and scholarly articles on sleep sex as experts learn more about sexsomnia.

How Does Sleep Sex Apply to a Sex Crime Allegation?

As you can imagine, some criminal defense attorneys have used sexsomnia as a defense to sexual assault allegations. Prosecutors are even being trained on how to overcome the sleep sex defense. But sexsomnia does not apply to every case. The factual allegations often do not support sexsomnia as a viable defense to sexual crimes cases.  But sometimes they do.  An article published in the Journal of Clinical Sleep Medicine in 2014 explored 9 criminal cases in which sexsomnia was used as a defense to sexual allegations.  The jury found the defendant not guilty in 7 of the 9 cases.

To establish a viable sexsomnia defense, the defense should be prepared to present witnesses that can establish a pattern of unusual sleep behaviors for the accused.  Further, the defense should look for other things that are known "triggers" for sleep sex, like alcohol use, sleep deprivation, emotional stress, and certain medications. This is a starting point to consider pursuing such a defense and should be coupled with all other typical defense investigatory avenues.

While a sexsomnia defense may cause the jury to chuckle as they think about a person having sex while the person is asleep, it can carry the day if the facts support the defense.  It should not be used as a gimmick.  With the right experts and the right witnesses, a sleep sex defense might just be the truth that sets a person free.

Treatment without Labels: An Effective Program for Juveniles Charged with a Sex Crime in Tarrant County

Imagine this: You receive a call out of the blue from a detective telling you that he is investigating your 11-year-old son for sexually touching your 6-year-old niece. How do you protect your young son who is being charged with Aggravated Sexual Assault of a Child? How do you choose between helping your son and helping your niece? Is there any way to get them both help without prosecuting your son? Will your son be labeled a sex offender for the rest of his life? Is there any way for your extended family to work this out?

While this may seem far-fetched, it happens more than you think. Fortunately, there is now a program in Tarrant County that can help without destroying the life of either child involved. It is called Project SAFeR.

What is Project SAFeR?

Project SAFeR (which stands for Safety and Family Resiliency) is a program in Tarrant County designed to help youth with problematic sexual behaviors who are between the ages of 7-12. There are three components to the program: legal, supervision, and counseling. The program, which started in July 2015, was created through a collaborative effort of Lena Pope Home, Alliance for Children, Tarrant County District Attorney’s Office, Child Protective Services (CPS), Tarrant County Juvenile Services, and local law enforcement. The purpose of the program is to help the victim, young juvenile, and their families deal with the problem in an effective way so that both children may go on to lead productive lives.

What is Problematic Sexual Behavior?

Problematic sexual behavior is that which is goes beyond what is normal sexual development for a child’s age. It usually involves children who are quite a bit different in age or who are not considered equals due to maturity, size, or other factors. A child with problematic sexual behaviors will act out on another child who is not a willing participant, either through the use of force, threats, bribery, or some other type of coercion or persuasion. Problematic sexual behaviors interfere with normal, nonsexual, childhood interests and behaviors, and usually continue even after a child’s behavior has been discovered and reprimanded.

The Legal Component of Project SAFeR

Because kids under the age of 10 cannot be prosecuted for their actions in Texas, children between the ages of 7-9 who have problematic sexual behaviors, can be referred to the counseling program but will not be required to participate in the diversion or supervision components. For these children, a parent can contact Lena Pope Home in Fort Worth at 817-255-2500 for help (see below for more specifics on the counseling component).

For children between the ages of 10-12, law enforcement and/or CPS will likely be involved to some extent. Many times, these cases will be referred to Tarrant County Juvenile Services and the Tarrant County District Attorney’s Office Juvenile Unit.

In order to be eligible to participate in the legal, or diversion, component of Project SAFeR, the charged juvenile must be between the ages of 10-12. If a juvenile is older than 12, he will be ineligible for the diversion program. Other eligibility requirements for the program are:

• A multi-disciplinary team must decide that the case is appropriate for inclusion in the program based on the totality of the circumstances. This team screens cases for the program while they are still being investigated by CPS and law enforcement.
• The victim’s family must agree to the charged juvenile being in the program. If the victim’s family does not agree, this alone will make the juvenile ineligible.
• A risk assessment, which will be completed by the counselors involved in the program, must show the charged juvenile to be at a low risk to reoffend.

If all of these requirements are met, a juvenile’s case will be filed with the court by the prosecutor. The child will appear before a juvenile court judge and must admit to committing the offense. The judge will make a finding that there is enough evidence to find the juvenile guilty of the offense, but the judge will instead withhold judgement on the issue of delinquency and order the child into Project SAFeR.

If the juvenile successfully completes the supervision and counseling components of the program, the prosecutor will dismiss the case. If, however, the child is kicked out of the program, then he will return to court and will be found delinquent at that time and then will proceed to the disposition, or punishment, stage of the case. A juvenile who successfully completes Project SAFeR will, as a condition of the program, be eligible to have his record sealed upon his 16th birthday.

The Supervision Component of Project SAFeR

The supervision component of Project SAFeR is provided by Tarrant County Juvenile Services. If the child is allowed into the program, he will be assigned a juvenile probation officer who is a part of the Juvenile Offender Unit. The term of supervision will be up to 6 months in length. During that time, the juvenile must complete the counseling component of the program as well as go to school, not commit any new offenses, and obey his parents/guardians. The probation officer will check in on the juvenile, as well as check with his counselor and parents, on a regular basis while in the program.

The Sexual Counseling Component of Project SAFeR

The counseling piece of the program is provided by Lena Pope Home at their Fort Worth location. Both the child charged and at least one caregiver will be required to attend all counseling sessions while in the program. The counseling is once a week (on Monday nights) for 18 weeks.

The juvenile will attend a child’s group at the same time that his caregiver is attending a parents’ group each week. The two groups will be learning the similar material at the same time. So, for instance, during the week that the juvenile is learning the sexual behavior rules, his parent will be learning how to enforce those sexual behavior rules in the home. In addition to learning about sexual behavior rules and appropriate relationships, those in the program will also learn communication skills and stress relief strategies. Both the juvenile and parent must demonstrate that they have learned and are implementing the information taught in order to successfully complete the program. The counseling is provided free of charge to those in the program.

Outcomes and Benefits of Project SAFer

While this program has only been in existence in Tarrant County for a little over a year, it has been implemented in other parts of the country for many years. The program in Omaha, Nebraska, recently completed a 10-year follow-up study on those juveniles who completed their program. They found that of those who successfully completed the program, less than 2% committed a new sexual offense. This is a much lower reoffending rate than traditional sex offending treatment programs.

The majority of those who have been accepted into the Tarrant County Project SAFeR program have graduated. Many of those parents have indicated that the information they learned in the program not only helped them handle their children’s sexual behavior problems, but it also taught them to be better parents in general. The techniques and strategies taught in the counseling component have also been instrumental in helping parents to communicate better and have better relationships with their children. It has brought these families closer together.

Project SAFeR is taking a whole new approach to treating children with problematic sexual behaviors. It starts with NOT labeling or treating them as sex offenders. It approaches the problem from a family-focused point of view and treats it as a serious problem that the family can get through together, as opposed to treating the juvenile as if he is a sex offender who is doomed for the rest of his life. If your child is between the ages of 10-12 and is facing prosecution for a sex crime in Tarrant County, ask your attorney about whether Project SAFeR is the right approach for you and your family.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings. She was part of the multidisciplinary team that created a Project SAFeR.

Is There a Uniform Age of Consent for all 50 States in the United States?

No, there is not a uniform age of consent. The "Age of Consent" is the minimum age at which a person may consent to participation in sexual intercourse. A person younger than the legal age of consent cannot legally consent to sexual activity. The age of consent in the United States ranges from 16 to 18 years old depending on the state, meaning that a person 15 years of age or younger cannot legally consent to sexual contact. Each state enacts its owns laws which set the age of consent.  If someone engages in sexual activity with a person younger than the age of consent in that state, the person could be charged with Statutory Rape or other offenses depending on the nature of the contact.

What follows is a map depicting the age of consent for all 50 states and a chart outlining the same.

*Note: This chart was current as of 2016, but could be subject to change over the years. Please do not rely on this chart to make any decisions that could impact your life. Check your own state's age of consent laws to make sure you are fully informed, because ignorance of the law will not be a defense for you if charged with a child sexual offense.

United States Age of Consent Map

United States Age of Consent Chart

"Romeo and Juliet Law" in Texas | An Exception to the Age of Consent in Texas

As mentioned in the chart above, the age of consent in Texas is 17. Texas, as well as many other states, has created a so-called "Romeo and Juliet" law, an exception to the statutory rape and age of consent law. Romeo and Juliet laws are targeted toward teenagers and young adults who engage in sexual relations with someone under the age of consent (17 in Texas), but who are still close in age to the sexual partner. The Romeo and Juliet provision creates a close in age exemption and keeps these would-be offenders from being classified as sex offenders.

Under Texas law, if a person over the age of 17 has consensual sexual intercourse with someone under the age of 17, but there is also no more than a three-year age difference between the two partners, the Texas Romeo and Juliet law will not allow the older person to be charged with statutory rape or be classified as a sex offender.