In 2007, the Texas Legislature enacted the "Jessica Lunsford Act" (Acts 2007, 80th Leg. ch. 593, eff. Sept. 1, 2007), creating one of the most severe punishment frameworks in American criminal law. Named after Jessica Lunsford, a Florida child who was kidnapped and murdered by a registered sex offender, the law created a new offense and enhanced an existing one; and in doing so, eliminated virtually every avenue for leniency.
Continuous Sexual Abuse of Young Child or Disabled Individual
Texas Penal Code § 21.02 creates a standalone offense that does not require a single act of aggravated sexual assault or indecency. Instead, it criminalizes a pattern of abuse over time.
Elements of the Offense
The offense is committed when:
- The defendant commits sexual abuse against one or more victims (§ 21.02(b)(1));
- The victim is a child younger than 14 years of age or a disabled individual (§ 21.02(b)(2));
- The offense does not apply to defendants younger than 17 years of age (§ 21.02(b)(2));
- The defendant commits two or more acts of sexual abuse during a period of 30 or more consecutive days (§ 21.02(d)).
"Sexual abuse" is defined broadly and includes contact or penetration of the genitals or anus with intent to arouse or gratify, or contact that is not consensual. The offense does not require proof of penetration or aggravated circumstances, rather it only requires repeated acts over a month-long period.
A Unique Jury Instruction
Section 21.02(d) creates a significant exception to Texas's usual unanimity requirement:
Jury Unanimity Not Required on Specific Acts
The jury is not required to agree unanimously on which specific acts of sexual abuse were committed or the exact dates those acts occurred. The jury must only agree unanimously that the defendant committed two or more acts of sexual abuse during a 30-or-more-day period. This departure from normal unanimity requirements reflects the Legislature's intent to ease the prosecution's burden and focuses the inquiry on pattern rather than individual incidents.
Affirmative Defense
Section 21.02(g) provides an affirmative defense if all of the following conditions are met:
- The only victims were children younger than 14;
- The defendant was not more than 5 years older than the victim;
- No duress, force, or threat was used;
- The defendant was not a registered sex offender.
This affirmative defense is narrowly tailored and rarely applicable in practice.
Punishment for Continuous Sexual Abuse
For a first offense, the punishment range is 25 to 99 years or life in prison (§ 21.02(h)). For a second or subsequent conviction, the sentence is life without parole (Tex. Penal Code § 12.42(c)(4)).
Additionally, there is no statute of limitations for prosecution (Tex. Code Crim. Proc. art. 12.01(1)(D)). A victim may pursue prosecution decades after the abuse occurred.
"Super" Aggravated Sexual Assault
Texas Penal Code § 22.021 defines "super" aggravated sexual assault. This offense operates as an enhancement that escalates the punishment for aggravated sexual assault (§ 22.021(a)) when the victim is extremely young or the defendant's conduct includes specific aggravating factors.
What Qualifies as "Super" Aggravated
An aggravated sexual assault becomes "super" aggravated when:
- The victim is a child younger than 6 years of age; or
- The victim is a child younger than 14 years of age and the
defendant engaged in any of the following aggravating conduct (§ 22.021(a)(2), (f)):
- Caused serious bodily injury or attempted to cause the victim's death;
- Threatened the victim with human trafficking, death, serious bodily injury, or kidnapping;
- Used or exhibited a deadly weapon;
- Acted in concert with another person committing aggravated sexual assault;
- Administered a substance to the victim to impair the victim's ability to resist.
Punishment for "Super" Aggravated Sexual Assault
For a first offense, the punishment is 25 to 99 years or life imprisonment. For a second or subsequent offense, the sentence is life without parole. However, the history of capital punishment for this offense requires explanation.
Historically, Texas law authorized the death penalty for a second or subsequent conviction of "super" aggravated sexual assault (Tex. Penal Code § 12.42(c)(3)). However, this changed following Kennedy v. Louisiana, 554 U.S. 407 (2008), in which the United States Supreme Court held that imposing the death penalty for rape of a child where the death of the victim did not result is unconstitutional under the Eighth Amendment.
Kennedy v. Louisiana and Texas's Response
After Kennedy v. Louisiana, the Texas Court of Criminal Appeals is required to reform any death sentence imposed for "super" aggravated sexual assault (Tex. Code Crim. Proc. art. 44.251(d)). The statute states that if the U.S. Supreme Court finds that the death penalty is unconstitutional for a particular offense, the court shall reform such a sentence to life without parole.
The practical effect is that while Texas law still authorizes life imprisonment for "super" aggravated sexual assault, the maximum sentence for a second or subsequent offense is now life without parole, not death.
Like continuous sexual abuse, there is no statute of limitations for prosecution of "super" aggravated sexual assault (Tex. Code Crim. Proc. art. 12.01(1)(B)).
What's Eliminated: No Leniency Available
For both continuous sexual abuse of a young child and "super" aggravated sexual assault, the Legislature has systematically eliminated every mechanism for reducing punishment or delaying incarceration:
| Leniency Mechanism | Statute | Status |
|---|---|---|
| Deferred Adjudication | Tex. Code Crim. Proc. art. 42A.102(b)(3) | Not available |
| Judge-Ordered Probation | Tex. Code Crim. Proc. art. 42A.053(c)(1) | Not available |
| Jury-Recommended Probation | Tex. Code Crim. Proc. art. 42A.056(1) | Not available |
| Parole Eligibility | Tex. Gov't Code § 508.145(a) | Not eligible |
No Probation, No Parole
To be clear: a person convicted of either continuous sexual abuse of a young child or "super" aggravated sexual assault cannot receive probation from any source, cannot receive deferred adjudication, and will never be eligible for parole. The minimum sentence is 25 years, and the person will serve every day of it.
Cumulative Sentencing
When a defendant is convicted of multiple counts involving a victim younger than 17 years of age, sentences can be stacked and run consecutively rather than concurrently. Under Tex. Penal Code § 3.03(b)(2)(A), when a defendant commits an offense against a child younger than 17, the court may order sentences to run consecutively.
This provision allows courts to impose multiple consecutive 25-to-life sentences for a defendant with multiple counts. For example, a defendant convicted on five counts of continuous sexual abuse could potentially receive five consecutive 25-year sentences, resulting in a cumulative 125-year sentence (far exceeding the life expectancy of most individuals).
Lifetime Sex Offender Registration
Both continuous sexual abuse of a young child and "super" aggravated sexual assault are classified as "sexually violent offenses" under Tex. Code Crim. Proc. art. 62.001(6).
A conviction for either offense triggers a lifetime registration requirement (art. 62.101(a)). The person must register with local law enforcement and verify their registration information every 90 days for the remainder of their life. Failure to register is a separate felony offense.
A Note on Constitutional Limits
The severity of Texas's sex offense provisions, particularly the mandatory minimum of 25 years for offenses involving young children, reflects a legislative judgment about the protection of the most vulnerable victims. However, constitutional constraints do exist.
The most significant of these is Kennedy v. Louisiana, 554 U.S. 407, 413 (2008), discussed above. While Texas has the authority to criminalize conduct and set substantial sentences, the Eighth Amendment's prohibition on cruel and unusual punishment does provide a floor below which punishment cannot fall. The Supreme Court's holding in Kennedy (that the death penalty is unconstitutional for child rape) illustrates that even the most severe offenses have constitutional limits.
Nevertheless, the 25-year mandatory minimum for continuous sexual abuse and "super" aggravated sexual assault, combined with the elimination of all leniency mechanisms, represents one of the harshest sentencing regimes in American criminal law.
For anyone facing charges of continuous sexual abuse of a young child or "super" aggravated sexual assault, the stakes could not be higher. A conviction means a minimum of 25 years in prison, no possibility of probation or parole, and lifetime registration. Understanding these laws (their elements, defenses, and constitutional limits) is essential for anyone navigating the criminal justice system in Texas.
If you or a family member are facing sex offense charges in Texas, seeking experienced legal counsel immediately is critical. The difference between a conviction and an acquittal, or between a conviction for continuous sexual abuse versus a lesser offense, can mean decades of freedom or incarceration.
