The provisions of the bill addressing felony sanctions are the subject of this analysis.  The bill would amend the Penal Code to provide an affirmative defense to prosecution of the offenses of indecency with a child and sexual assault of a child if the actor was not more than five years older than the victim and both were enrolled in a public or private school in grade level nine or above at the time of the offense.  These offenses are punishable as a first degree felony, a second degree felony, or a third degree felony, depending upon the circumstances of the offense. A first degree felony is punishable by confinement in prison for five to 99 years or life, a second degree felony is punishable by confinement in prison for two to 20 years, and a third degree felony is punishable by confinement in prison for two to 10 years.  In addition to confinement, most felony offenses are subject to an optional fine not to exceed $10,000.

Providing an additional defense to prosecution for any criminal offense is expected to result in fewer demands upon the correctional resources of counties or of the State due to a decrease in the number of individuals placed under supervision in the community or sentenced to a term of confinement in state correctional institutions. The bill may have a positive population impact by decreasing the number of people under felony community supervision or incarcerated within state correctional institutions. Whether the bill would result in a significant decrease in correctional populations cannot be determined due to the lack of data or information related to the number of people prosecuted who were not more than five years older than the victim and both were enrolled in a public or private school in grade level nine or above at the time of the offense. In fiscal year 2018, 3,442 people were arrested, 629 were placed under felony community supervision, 1,119 were admitted into state correctional institutions for the offenses of indecency with a child and sexual assault of a child. Data do not exist that would allow for those cases in which the actor was not more than five years older than the victim and both were enrolled in a public or private school in grade level nine or above at the time of the offense to be identified from all other cases.