What is the age of consent for sexual activity in Texas? Is there a “Romeo and Juliet” law?

The Texas Penal Code does not include a statutory definition of “child” or “minor” that applies throughout the entire Penal Code (see Section 1.07 of the Code). Instead, specific statutes within the code provide definitions. For example, the laws on sexual assault and indecency with a child define a “child” as a person under the age of 17. These and other laws criminalize certain sexual activities regardless of whether the person knows the age of the child at the time of the offense. See:

• Section 22.011 (Sexual Assault) defines “child” as “a person younger than 17 years of age”.
• Section 21.11 (Indecency with a Child) identifies a child as “younger than 17 years of age, whether the child is of the same or opposite sex and regardless of whether the person knows the age of the child at the time of the offense”.
• Section 33.021 (Online Solicitation of a Minor) defines “minor” as “an individual who is younger than 17 years of age” or “an individual whom the actor believes to be younger than 17 years of age”.

However, a few other statutes that address minors and sexual activity set the minimum age at 18 years:

• Section 43.25 (Sexual Performance by a Child) defines “child” as “younger than 18 years of age”.
• Section 43.261 (Electronic Transmission of Certain Visual Material Depicting Minor) defines “minor” as “a person younger than 18 years of age”.

“Romeo and Juliet” Laws

“Romeo and Juliet” laws generally refer to provisions in law that provide an affirmative defense to criminal prosecution in consensual cases where both actors are similar in age. There is no single “Romeo and Juliet” law, but several sections of the Penal Code contain these kinds of provisions. It is important to read these laws carefully because they are very specific about when they apply. For example:

• Section 22.011 (Sexual Assault) provides an affirmative defense for an actor “not more than three years older than the victim”, as long as the victim “was a child of 14 years of age or older”, along with several other requirements.
• Section 21.11 (Indecency with a Child) provides an affirmative defense for an actor “not more than three years older than the victim and of the opposite sex” who “did not use duress, force, or a threat against the victim” and “was not required to register for life as a sex offender”, along with other exceptions and requirements.
• Section 33.021 (Online Solicitation of a Minor) includes a defense for an actor who “was not more than three years older than the minor” if “the minor consented to the conduct”.
• Section 43.25 (Sexual Performance by a Child) provides an affirmative defense for a defendant who is “not more than two years older than the child”.
• Section 43.261 (Electronic Transmission of Certain Visual Material Depicting Minor) provides an affirmative defense for an actor “who is not more than two years older or younger than the actor and with whom the actor had a dating relationship at the time of the offense”, among other provisions.

A “Romeo and Juliet” provision is also found in Section 42.017 of the Texas Code of Criminal Procedure, which offers protection from having to register as a sex offender for a person convicted of an offense under Texas Penal Code Section 21.11 or 22.011. Please note that the age requirements found in this statute are different than those in Section 21.11 or 22.011:

(1) at the time of the offense, the defendant was not more than four years older than the victim or intended victim and the victim or intended victim was at least 15 years of age; and
(2) the conviction is based solely on the ages of the defendant and the victim or intended victim at the time of the offense.

Additionally, a person who was convicted of an offense under Texas Penal Code Section 21.11 or 22.011 and required to register as a sex offender before September 1, 2011, may be able to petition the court for an order exempting them from registration if they are eligible under Article 62.301 of the Texas Code of Criminal Procedure.