73R1522 DRH-F
By Greenberg, Park, Danburg, et al. H.B. No. 131
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to eliminating the promiscuity defense for a person who
1-3 sexually assaults a child.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 22.011(d) and (e), Penal Code, are
1-6 amended to read as follows:
1-7 (d) It is a defense to prosecution under Subsection (a)(2)
1-8 of this section that<:>
1-9 <(1) the child was at the time of the offense 14 years
1-10 of age or older and had prior to the time of the offense engaged
1-11 promiscuously in conduct described in that subsection; or>
1-12 <(2)> the conduct consisted of medical care for the
1-13 child.
1-14 (e) It is an affirmative defense to prosecution under
1-15 Subsection (a)(2) of this section that the actor was not more than:
1-16 (1) two years older than a child younger than 14 years
1-17 of age; or
1-18 (2) four years older than a child 14 years of age or
1-19 older <the victim>.
1-20 SECTION 2. Section 22.021(d), Penal Code, is amended to read
1-21 as follows:
1-22 (d) The <defense provided by Section 22.011(d)(1) of this
1-23 code and the> affirmative defense provided by Section 22.011(e)(2)
1-24 of this code does <do> not apply to this section. The defense
2-1 provided by Section 22.011(d) <22.011(d)(2)> of this code <section>
2-2 does apply to this section.
2-3 SECTION 3. Section 21.11, Penal Code, is amended to read as
2-4 follows:
2-5 Sec. 21.11. Indecency With a Child. (a) A person commits
2-6 an offense if, with a child younger than 17 years and not his
2-7 spouse, whether the child is of the same or opposite sex, he:
2-8 (1) engages in sexual contact with the child; or
2-9 (2) exposes his anus or any part of his genitals,
2-10 knowing the child is present, with intent to arouse or gratify the
2-11 sexual desire of any person.
2-12 (b) <It is a defense to prosecution under this section that
2-13 the child was at the time of the alleged offense 14 years or older
2-14 and had, prior to the time of the alleged offense, engaged
2-15 promiscuously in:>
2-16 <(1) sexual intercourse;>
2-17 <(2) deviate sexual intercourse;>
2-18 <(3) sexual contact; or>
2-19 <(4) indecent exposure as defined in Subsection (a)(2)
2-20 of this section.>
2-21 <(c)> It is an affirmative defense to prosecution under this
2-22 section that the actor:
2-23 (1) was not more than two years older than a <the>
2-24 victim who was younger than 14 years of age and of the opposite sex
2-25 or was not more than four years older than a victim who was 14
2-26 years of age or older and of the opposite sex; and
2-27 (2) did not use duress, force, or a threat against the
3-1 victim at the time of the offense.
3-2 (c) <(d)> An offense under Subsection (a)(1) of this section
3-3 is a felony of the second degree and an offense under Subsection
3-4 (a)(2) of this section is a felony of the third degree.
3-5 SECTION 4. Under the terms of Section 22.109(b), Government
3-6 Code, Rule 412(e), Texas Rules of Criminal Evidence, is
3-7 disapproved.
3-8 SECTION 5. (a) The change in law made by this Act applies
3-9 only to an offense committed on or after the effective date of this
3-10 Act. For purposes of this section, an offense is committed before
3-11 the effective date of this Act if any element of the offense occurs
3-12 before the effective date.
3-13 (b) An offense committed before the effective date of this
3-14 Act is covered by the law in effect when the offense was committed,
3-15 and the former law is continued in effect for this purpose.
3-16 SECTION 6. This Act takes effect September 1, 1993.
3-17 SECTION 7. The importance of this legislation and the
3-18 crowded condition of the calendars in both houses create an
3-19 emergency and an imperative public necessity that the
3-20 constitutional rule requiring bills to be read on three several
3-21 days in each house be suspended, and this rule is hereby suspended.