Texas Penal Code 43.25 – Sexual Performance by a Child
(a) In this section:
(1) “Sexual performance” means any performance or part thereof that includes sexual conduct by a child younger than 18 years of age.
(2) “Sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.
(3) “Performance” means any play, motion picture, photograph, dance, or other visual representation that can be exhibited before an audience of one or more persons.
(4) “Produce” with respect to a sexual performance includes any conduct that directly contributes to the creation or manufacture of the sexual performance.
(5) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.
(6) “Simulated” means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks.
(7) “Deviate sexual intercourse” and “sexual contact” have the meanings assigned by § 43.01.
(b) A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.
Terms Used In Texas Penal Code 43.25
- Actor: means a person whose criminal responsibility is in issue in a criminal action. See Texas Penal Code 1.07
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- Conduct: means an act or omission and its accompanying mental state. See Texas Penal Code 1.07
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Felony: means an offense so designated by law or punishable by death or confinement in a penitentiary. See Texas Penal Code 1.07
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Law: means the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute. See Texas Penal Code 1.07
- Person: means an individual or a corporation, association, limited liability company, or other entity or organization governed by the Business Organizations Code. See Texas Penal Code 1.07
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
(c) An offense under Subsection (b) is a felony of the second degree, except that the offense is a felony of the first degree if the victim is younger than 14 years of age at the time the offense is committed, regardless of whether the actor knows the age of the victim at the time of the offense.
(d) A person commits an offense if, knowing the character and content of the material, he produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age.
(e) An offense under Subsection (d) is a felony of the third degree, except that the offense is a felony of the second degree if the victim is younger than 14 years of age at the time the offense is committed, regardless of whether the actor knows the age of the victim at the time of the offense.
(f) It is an affirmative defense to a prosecution under this section that:
(1) the defendant was the spouse of the child at the time of the offense;
(2) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or
(3) the defendant is not more than two years older than the child.
(g) When it becomes necessary for the purposes of this section or § 43.26 to determine whether a child who participated in sexual conduct was younger than 18 years of age, the court or jury may make this determination by any of the following methods:
(1) personal inspection of the child;
(2) inspection of the photograph or motion picture that shows the child engaging in the sexual performance;
(3) oral testimony by a witness to the sexual performance as to the age of the child based on the child’s appearance at the time;
(4) expert medical testimony based on the appearance of the child engaging in the sexual performance; or
(5) any other method authorized by law or by the rules of evidence at common law.
(h) Conduct under this section constitutes an offense regardless of whether the actor knows the age of the victim at the time of the offense.