When it comes to charges of indecency with a child Dallas sex crime lawyer John Helms explains the reasoning behind why intent or the lack thereof matters
I have tried a lot of cases in Texas involving charges of indecency with a child by contact and continuous sexual abuse of a child based on indecency. One defense I have used successfully is lack of intent. Specifically, I have successfully defended clients based on a lack of intent to touch the child and/or a lack of intent to touch the child for the purpose of sexual gratification.
Some people think that any touching of a child’s genitals, breast, or buttocks is a crime. In fact, in one of my recent trials, a police investigator testified, under oath, that he believed that unintentionally touching a child’s genital area, over their clothes, while the person doing the touching was asleep is a crime. It is not.
Under Texas law, touching a child’s genital area, breast, or buttocks, with a hand or other parts of the body, is not a crime unless the touching is intentional and for the purpose of sexual arousal or gratification. Specifically, in the pertinent part, Texas Penal Code section 21.11(c) defines “sexual contact” as “any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child,” but only “if committed with the intent to arouse or gratify the sexual desire of any person.” (emphasis added).
This definition means that the touching must be intentional. Therefore, it is not a crime for a person to touch a child’s prohibited area if it is by accident or while the person doing the touching is asleep. In a recent trial, for example, I successfully defended a person who was accused of touching a child over the clothes covering the child’s genital area, by showing that the accused was likely asleep, probably rolled over, and did not intend to touch the child on that area. See State of Texas v. J.J., in the 32nd Judicial District Court of Mitchell County, Texas.
Moreover, even if a touching of a child’s genital area is intentional, it is not a crime unless it was for the purpose of sexual arousal or gratification. For example, if the touching is intentional, but for a medical purpose, it is not a crime. I also successfully defended another accused person in trial by showing that the touching of his step-daughter’s genital area was solely to apply medicine to treat a rash on that area of the body. See State of Texas v. H.C., in the 203rd Judicial District Court of Dallas County, Texas.
The defense of lack of intent can often be particularly persuasive because it can allow the jury to find the defendant not guilty without calling the alleged victim a liar. In my experience, juries are often reluctant to reach a verdict that means the alleged victim is a liar, especially if the alleged victim generally seems credible. The defense of lack of intent can avoid this by pointing out that a “not guilty” verdict does not mean that the jury thinks the alleged victim lied about being touched. Rather, it just means that the touching was unintentional or without sexual intent.
In some cases, the defense of lack of intent is simply not realistic. Certain types of contact are, by nature, intentional and sexual. For example, inserting a finger or a genital inside of the vaginal area of a child cannot be defended as unintentional or not sexual. If this type of contact occurred, the defendant is guilty. However, there may be a serious question about whether it did, in fact, occur. I have successfully tried cases in which defendants accused of this type of conduct have denied that the contact occurred at all. This kind of defense requires calling the alleged victim a liar, and it requires showing why the alleged victim would make such a horrible false accusation.
Any allegation of indecency with a child by contact is extremely serious. It becomes even more serious if the charge involves two or more alleged acts separated by thirty days or more. In Texas, this is a charge of continuous sexual abuse of a child, which carries a minimum sentence of twenty-five years in prison, without the possibility of parole. See Tex. Penal Code §21.02(h).
The stakes in these cases could not be much higher. If you or a loved one is accused in Texas of indecency with a child by contact or continuous sexual abuse of a child, you should retain a Dallas sex crime lawyer with experience in defending these specific types of cases and taking them to trial.
Recent case result:
Dallas Child Sex Crimes Defense Lawyer John Helms Gets Not Guilty Verdict
About John Helms: John Helms is a leading criminal defense attorney based in Dallas who specializes in State and Federal Criminal Defense.
“When I was a federal criminal prosecutor for the Northern District of Texas, I never lost a trial or an appeal.” John Helms Dallas Child Sex Crimes Attorney
Because of his background in prosecuting criminal cases against defendants who were facing serious jail time in Federal and State penitentiaries for sexual crimes, John Helms is uniquely positioned to evaluate and assess both sides of a criminal defense case.
Over the course of his career, he has found that many of his clients truly appreciate the time, effort, and creativity Mr. Helms put into every case.
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