Posted on 2/27/17

“But I thought that she was 17!”

When someone is arrested for statutory rape, that is often the first thing that comes out of the accused’s mouth. In Texas, the age of consent is 17, meaning that those under 17 cannot consent. Therefore, if an adult has sex with someone under 17, then the adult committed statutory rape.

Statutory Rape Defined

In statutory rape, the statute considers a sexual act to be rape, even when the adult did not force him or herself upon the underage person. In such an instance, the adult will be facing a harsh prison sentence if convicted of the crime of sexual assault. Moreover, if the underage person was younger than 14, the Texas Penal Code categorizes this as aggravated sexual assault. Aggravated sexual assault comes with a minimum of five years behind bars.

If convicted of statutory rape, the offender will have to register with the


There are two main exceptions to this rule:

  • The adult having sex with the underage person is less than three years older, which is known as the Romeo and Juliet exception. Note that this exception is not applicable for people of the same gender who engage in sex.

  • The two are legally married and living in Texas, which is known as the marital exception.

Mistake of Age is Not a Defense

Often, a mistake of fact will be a valid defense to an accusation of a crime. However, for statutory rape, which is a strict liability crime, mistake of fact is not a defense. Strict liability crimes do not require intent to commit the crime; only that the crime was committed. A mistake of fact negates the intent of a crime, which is not an element of and therefore not a defense to a strict liability crime.

As such, a defendant who claims that he or she did not know that the other person was not 17 is not uttering a defense. Even if the underage person told the defendant explicitly that he or she was 17 or older, the defendant can still face a rape charge.


As mentioned, a mistake of fact is not a defense to statutory rape. The two main defenses to statutory rape would be that the act did not happen or that someone else committed the act. At trial, the prosecution will usually call the underage person to testify against the defendant. In such an instance, the defense will try to impeach the witness, which means that the defense calls the witness’s credibility into question.

If you are accused of statutory rape, you face serious charges. You face significant jail time and the sex registry. You need a lawyer that will fight for you. Contact the law firm of Christopher Abel today.

(image courtesy of Klaus with K)

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