In the next few weeks, we will explore the constitutional infirmities of Texas Penal Code §§ 22.011(a)(2) and (c)(1), which are unconstitutionally vague on their face because they fail to specify the necessary mens rea. Under § 22.011(a)(2), it is a crime to “intentionally and knowingly” commit certain sexual acts with a “child.” Section 22.011(c)(1) defines “child” as anyone under 17 years old who is not the alleged actor’s spouse.

In 2014, the Texas Court of Criminal Appeals found that the “Texas Penal Code does not specify that mens rea as to the age of the victim is necessary.” Fleming v. State, 441 S.W.3d 253, 258 (Tex. Crim. App. 2014). Yet as just explained, § 22.011(a)(2) requires the accused to act “intentionally or knowingly,” and a year after the court ruled in Fleming, the Court of Criminal Appeals held that, in a circumstances-of-conduct offense, mens rea attaches to the circumstance making the act illegal. See Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim. App. 2015). A culpable mental state must attach to the circumstance that constitutes “the gravamen of the offense.” See id.

Section 22.011(a)(2) enumerates such a circumstances-of-conduct offense rather than a nature-of-conduct offense. In Fleming, Presiding Judge Sharon Keller dissented. She pointed out the substantive-due-process issues raised in this context by the U.S. Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003). The rationale for holding a defendant strictly liable because they should have at least realized that they were committing the illegal, immoral, or risky conduct of fornication with an adult has been negated entirely by the holding in Lawrence. Fleming, 441 S.W.3d at 281. (Keller, P.J., dissenting). In the wake of Lawrence, sexual activity between consenting adults is not subject to strict legislative regulation; “thus, a defendant does not necessarily act at his peril when he reasonably believes that he is having sexual relations with an adult.” Id. The Lawrence decision “led at least two law professors to contend in published law review articles that due process requires that a defense be available to an individual who engages in sexual intercourse with a person that he non-negligently believes is an adult.” Id.

Courts finding that Lawrence does not apply in cases involving minors “have missed the point,” as Presiding Judge Keller explained. Id. at 282. These courts have taken an overly narrow view of the rights at stake. See id. If a defendant non-negligently believed they were having consensual sex with an adult, they non-negligently believed in the existence of circumstances that would provide constitutional protections from liability under Lawrence. See id. “Such a non-negligent belief would negate the existence of even the most minimal sort of mental culpability.” Id.

Under this reasoning, fornication is no longer considered immoral under Lawrence, so a violation of § 22.011(a)(2) is not a nature-of-conduct offense. Rather, it is a circumstances-of-conduct offense, where the circumstance at issue is the age of the complainant. As such, the decision of the Court of Criminal Appeals in Robinson requires that the relevant mens rea attach to the age of the complainant.

This mens rea related to age, however, would not be apparent to any person reading §§ 22.011(a)(2) and (c)(1). Thus citizens, law-enforcement officers, and prosecutors lack the requisite guidance to comply with or enforce the law. The federal prohibition in 18 U.S.C § 2241(d) provides a useful comparison. Unlike §§ 22.011(a)(2) and (c)(1), § 2241(d) explicitly provides that, “[i]n a prosecution under subsection (c) of this section, the Government need not prove that the defendant knew that the other person engaging in the sexual act had not attained the age of 12 years.” Sections 22.011(a)(2) and (c)(1) simply fail to provide the same warning. Section 22.011 is unconstitutionally vague on its face.