The Scholar: St. Mary's Law Review on Race and Social Justice


In Texas, the State has to show sexual penetration occurred in order to convict a perpetrator of a first degree felony of aggravated sexual assault when the victim is under fourteen years of age. However, sexual assault victims between the ages of fourteen and sixteen years old must show that serious bodily injury occurred as a result of force in order to get a charge of aggravated sexual assault. As a result, the State can only charge perpetrators who sexually abuse family members between fourteen and sixteen years of age with sexual assault, which carries a lower penalty. This comment discusses how intrafamilial sexual abuse typically does not occur as a result of force due to the dynamics of the relationship, resulting in lower penalties. The author explains that the current requirements of aggravated sexual assault are unfair to victims of intrafamilial sexual abuse. This is because courts usually reason that previous sexual activity equates to consent, and if the sexual abuse occurred repeatedly, then the victim was able to consent. If the victim is able to consent, then that victim is required to resist, and the perpetrator must use force for the sexual act to be considered sexual assault. This is unfair to victims of intrafamilial sexual abuse because the perpetrator rarely has to use force to sexually assault a family member. The current policy in Texas does not consider the dynamics of the relationships in intrafamilial sexual abuse, resulting in lesser penalties for these perpetrators. The author proposes that Texas reject the requirement for a showing of force that results in serious bodily injury to prove aggravated sexual assault for victims fourteen to sixteen years of age of intrafamilial sexual abuse. Doing so would offer protection to victims and remove protection that perpetrators find in the current rule.

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