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Under the Texas Penal Code,
A person commits [the felony of Indecency With a Child] if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:
(B) causes the child to expose the child’s anus or any part of the child’s genitals.
“Sexual contact,” for purposes of that statute, means, among other things, “any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child” with the intent to arouse or gratify the sexual desire of any person.
There’s a reason we have this statute: we don’t want our young children to be touched sexually. We think it harms them. So indecent exposure by contact is a second-degree felony, with a maximum sentence of 20 years in prison (unless the actor does it two or more times in 30 days, in which case it might be Continuous Sexual Abuse of Young Child or Children, in which case the punishment is 25 years to life).
The harm that sexual contact might do doesn’t depend on whether the child knows the intent behind it; a child can’t necessarily tell the difference between an inappropriate touch and an appropriate one. A young child might be as traumatized by socially permissible contact as by sexual assault. But we don’t want the pediatrician or the parent going to the pen for doing her job. So we impose a specific-intent element: touching a child’s genitals is sexual contact, but it’s only a felony if done with the intent to arouse or gratify someone’s sexual desire.
With me so far? We require proof of specific intent, not because that intent increases harm but because it increases culpability.
Children can’t consent to sexual contact, and normal parents will consent only very rarely to allowing people to touch their children’s genitals. Other than a) carefully selected caregivers for children too young to bathe themselves; and b) doctors, no examples come immediately to mind of people whom I would allow to touch my kids’. Their intentions might be pure, and there might be some good reason that I’m not considering for a stranger to touch my children’s genitals, but they would be ill-advised to try without my explicit consent, which I’m probably not going to give. Which is why my kids aren’t flying commercial anywhere until TSA stops letting Al-Qaeda call the tune.
But some passengers are allowing these TSA mallcops to either take photographs of or grope the passengers’ children. Serious question (inspired by LawDog’s post, Meditations on a Father’s Duty): Why? What is at the other end of that airplane ride that is worth the unchoice of having someone you don’t know and don’t trust either taking naked pictures of your kids, or groping them?
Now, I should probably stop there and let the TSA mallcops take care of themselves. But I’m a criminal-defense lawyer, so let’s help the TSA mallcops look at their possilbe criminal liability.
Specific intent is a slippery thing. If Houston TSO Joseph Joblin (to pick a screener at random) were to go around in his off hours feeling up children’s legs until he “felt the resistance,” he would have a hard time convincing a Harris County jury that he didn’t have the intent to arouse or gratify his own sexual desire. He’d better have a really good explanation, or he’d be staring down the barrel of a double-digit sentence in TDCJ.
If all of the groping took place at work, “I work for the TSA” would be a really good explanation. But all it would take to ruin Joseph Joblin’s whole year would be for one parent with some influence to see Joblin do something or hear Joblin say something inappropriate that suggested that Joblin got some sexual charge out of groping passengers. Joblin might be stone-cold innocent, and the parent might have seen or heard something that didn’t happen, but the reality of criminal defense work is that often people hear and see things that didn’t happen, or misinterpret the things that did.
That one influential parent could trigger an investigation that would put Joblin under a microscope. His coworkers would be interrogated, and they might also have seen or heard things that didn’t happen (indeed, they would be more likely to, since a. they’re mallcops; and b. people naturally look for facts that fit the stories they believe). The more things that people saw or heard that didn’t happen, the more Joblin would have to explain, until at some point he would have a Bennett’s Chainsaw problem.
This might never happen. But I think it’s self-evident that one’s chances of going to prison for child molestation increase dramatically when one spends every day groping strangers.