In Which Texas Sex-Assault Law is Bizarre


Texas Penal Code Section 22.011, Sexual Assault:

(a) A person commits an offense if the person:

(1) intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor…

(f) An offense under this section is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

Texas Penal Code Section 25.01, Bigamy:

(a) An individual commits an offense if:

(1) he is legally married and he:

(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor’s prior marriage, constitute a marriage; or

(B) lives with a person other than his spouse in this state under the appearance of being married; or

(2) he knows that a married person other than his spouse is married and he:

(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person’s prior marriage, constitute a marriage; or

(B) lives with that person in this state under the appearance of being married.

So if you’re single and you rape a single person, it’s a second-degree (2–20) felony.

If you’re single and you rape a married person of the opposite sex, it’s a first-degree (5–life) felony.

If you’re married and you rape your spouse it’s a second-degree felony.

If you’re married and you rape a person of the opposite sex who is not your spouse it’s a first-degree felony.

If you rape a person of the same sex it’s a second-degree felony because you couldn’t marry him regardless of your prior marriage.


11 responses to “In Which Texas Sex-Assault Law is Bizarre”

  1. Looks like the CCA discussed this in State v. Rosseau, 396 S.W.3d 550 558 (Tex.Crim.App. 2013). (“the statute is not facially unconstitutional because it has at least one valid application: the punishment of bigamists who sexually assault their purported spouses.”)

  2. I don’t find the law bizarre. It’s clearly designed to protected the sanctity of marriage. This makes sense because at least in theory it is not only the person being sexually violated but the marriage itself. Note that this does not make the spouse-on-spouse rape anomalous because that situation does not involve a third party. So the legislature is saying that if a marriage is violated in either direction (a spouse being the victim or the perp) that violation deserves an extra dose of punishment on top of the fact a rape is involved.

    (shrug)

    I’m not saying I agree but it isn’t bizarre. It has a logical and rational vision behind it.

  3. Is it true that the law used to not recognize the “crime of marital rape”? Ie, that rape could not exist inside a marriage? If so, when did that change?

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