Indecency with a child is one of the most frequently charged sex offenses in Texas and one of the most misunderstood. Many people facing this charge (and their families) conflate it with sexual assault, assume it requires physical penetration, or don’t understand how the two separate offense types within the statute carry fundamentally different penalties and different probation eligibility rules.
Texas Penal Code §21.11 creates two distinct offenses. Understanding which one is charged, what each requires the prosecution to prove, and where the defense has room to work is the starting point for anyone facing or supporting someone facing an indecency charge.
The Two Offenses: Contact and Exposure
- 21.11(a)(1) — Indecency by Sexual Contact. A person commits this offense by engaging in sexual contact with a child younger than 17, or by causing the child to engage in sexual contact. “Sexual contact” is defined as any touching (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. Physical penetration is not required. The intent element (arousal or gratification) is what distinguishes this offense from innocent physical contact.
This is a second-degree felony: 2 to 20 years in prison and a fine up to $10,000.
- 21.11(a)(2) — Indecency by Exposure. A separate offense occurs when a person, with the intent to arouse or gratify the sexual desire of any person, exposes their own anus or genitals knowing that a child is present, or causes a child to expose the child’s anus or genitals. No physical contact between the actor and the child is required.
This is a third-degree felony: 2 to 10 years in prison and a fine up to $10,000.
Both offenses apply to children under 17 regardless of the gender of either party and, critically, regardless of whether the actor knew the child’s age. The 2017 amendment to §21.11 made knowledge of the child’s age irrelevant. If the child was under 17, the offense is complete whether or not the actor knew that fact.
How These Charges Differ From Sexual Assault
Indecency by sexual contact is frequently charged in cases that involve touching rather than penetration. The line between §21.11 and sexual assault under §22.011 is primarily the nature of the act: touching of covered body parts (without penetration) is the indecency charge; penetration elevates to sexual assault.
Importantly, indecency by contact is charged in many cases involving ambiguous or misinterpreted physical contact (an uncomfortable medical exam, physical assistance with clothing, contact during bathing or caregiving) where the prosecution relies on a child’s disclosure and expert testimony to argue that the touching was sexual in nature. Whether the intent element is met (whether the contact was made with the intent to arouse or gratify) is frequently the central dispute in these cases.
Probation Eligibility: One of the Most Important Distinctions
The difference between the two offense types matters enormously when it comes to who can receive probation, and under what circumstances.
For Indecency by Exposure (§21.11(a)(2)): A judge may place a person on community supervision following conviction. Jury-recommended probation is also available unless the victim was younger than 14.
For Indecency by Sexual Contact (§21.11(a)(1)): A judge cannot place a person on probation following a jury verdict of guilty even for a first offense, even with no criminal history. Only a jury can recommend community supervision for the contact offense, and that option is unavailable if the victim was younger than 14. This means that defendants convicted of the contact offense at trial are going to prison regardless of their background or the circumstances, unless a jury specifically recommends probation on an eligible case.
This probation eligibility structure is one of the most critical pieces of information for anyone evaluating how to handle an indecency by contact charge. The difference between a negotiated plea resolution and a trial conviction can determine whether prison is mandatory.
Deferred Adjudication and Sex Offender Registration
Even if a person receives deferred adjudication (not a formal conviction) on an indecency charge, sex offender registration is still required. Deferred adjudication is a “reportable adjudication” under Chapter 62 of the Texas Code of Criminal Procedure. The person must register as a sex offender for the applicable period regardless of the deferred outcome.
Registration periods under Texas law:
Indecency by Sexual Contact (§21.11(a)(1)): Lifetime registration.
Indecency by Exposure (§21.11(a)(2)): 10-year registration, unless the person has another reportable conviction or adjudication, in which case registration becomes lifetime.
These registration periods impose residency restrictions, employment limitations, periodic reporting obligations, and community notification requirements that follow the registrant for the duration, which in many cases is for the rest of their life.
No Statute of Limitations
Texas eliminated the statute of limitations for indecency with a child offenses effective September 1, 2007. There is no time limit on prosecution. An accusation arising from conduct that allegedly occurred 20 or 30 years ago is legally as viable as one arising from last year. This means that delayed disclosure cases (where an adult comes forward as an adult about alleged childhood conduct) are prosecuted in Texas courts regularly, and the defense cannot argue that the passage of time bars the charge.
Affirmative Defenses
The statute provides two affirmative defenses. The first (applicable to both contact and exposure) requires showing that the actor was not more than three years older than the child, was of the opposite sex, did not use duress or force, and was not required to register as a sex offender for life under another conviction. The second is marriage to the child.
Beyond the statutory affirmative defenses, the defense in most indecency cases focuses on contesting the elements the prosecution must prove: whether the touching occurred as alleged, whether the intent element is established, whether the child’s account is reliable, and whether the investigative process produced trustworthy evidence.
What the Defense Examines
The forensic interview. In virtually every child indecency case, a forensic interview of the child is conducted typically at a child advocacy center using a trained interviewer. The interview methodology, whether leading or suggestive questions were used, whether the child’s disclosure was spontaneous or prompted, and the number and sequence of prior disclosures before the formal interview are all scrutinized. Research on child memory and suggestibility is well-established, and forensic interview standards exist precisely because improper questioning can contaminate a child’s account.
The outcry witness. The first adult the child told about the alleged offense will typically testify under the Article 38.072 hearsay exception. Whether that person qualifies as the proper outcry witness, whether the required notice was given, and whether the reliability hearing produced a proper ruling are all reviewable.
Physical and forensic evidence. Many indecency cases involve no physical evidence because the offense as charged does not require physical injury, and touching through clothing leaves no forensic trace. When physical evidence does exist, its collection, interpretation, and the conclusions drawn from it deserve the same scrutiny applied to forensic evidence in any serious felony.
The context of the accusation. Indecency allegations frequently arise in the context of family conflict (divorce, custody disputes, estrangement). The circumstances under which a child first disclosed, who the child told first, whether adults in the child’s life had reason to fabricate or encourage an accusation, and what the child’s relationship to the accused was before the allegation are all part of the factual investigation.
Speak With Deandra Grant Law
An indecency with a child charge carries life-changing consequences. The mandatory registration requirements, the probation eligibility structure, and the weight these cases carry with juries all require a defense team that understands both the law and the forensic science behind how these cases are built.
Deandra Grant Law brings more than 30 years of criminal defense experience and more than 500 trials to every case. Partner Douglas Huff leads our sex crimes defense practice, bringing ACS-CHAL Forensic Lawyer-Scientist credentials and extensive experience with the forensic interview methodology, outcry witness rules, and digital evidence that appear in these cases.
Call (214) 225-7117 or visit texasdwisite.com for a confidential consultation.