Chapter 21
Sexual Offenses
21.17 Instruction—Sexual Assault of Adult by Force, Violence, or Coercion
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of sexual assault.
Relevant Statutes
A person commits the offense of sexual assault if the person intentionally or knowingly causes the penetration of the sexual organ of another person by any means without that other person’s consent.
Penetration of another person’s sexual organ is without consent if the person compels the other person to submit or participate by the use of physical force, violence, or coercion.
Definitions
Coercion
“Coercion” means a threat, however communicated—
[Include only those types of coercion supported by the evidence.]
- to commit an offense; or
- to inflict bodily injury in the future on the person threatened or another; or
- to accuse a person of any offense; or
- to expose a person to hatred, contempt, or ridicule; or
- to harm the credit or business repute of any person; or
- to take or withhold action as a public servant, or to cause a public servant to take or withhold action.
Intentionally Causing Penetration
A person intentionally causes the penetration of the sexual organ of another person by his sexual organ if the person has the conscious objective or desire to cause that penetration.
Knowingly Causing Penetration
A person knowingly causes the penetration of the sexual organ of another person by his sexual organ if the person is aware that his conduct is reasonably certain to cause that penetration.
[Include if raised by the evidence and requested by the defense.]
State’s Election of a Particular Incident
The state has offered evidence of more than one incident to prove sexual assault as alleged in the indictment. The state is required to choose one of those incidents for you to consider in deciding whether it has met its burden of proof on that particular occasion. The incident that the state has chosen is [insert specific incident, e.g., the first act of intercourse that [name] testified that she remembered]. This is the only incident for which the defendant is on trial [in this case/in count [number]]. You are to confine your deliberations to deciding whether the defendant is guilty or not guilty of sexual assault on that particular occasion. You cannot find the defendant guilty of sexual assault based on an occurrence at any other time or place other than the incident that the state has chosen.
Also, you may not consider evidence of any other incident for any purpose unless you find, beyond a reasonable doubt, that such incident occurred. Even then, you may consider it only for the specific, limited purpose of determining [insert limited purpose, e.g., the defendant’s intent].
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, two elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], intentionally or knowingly caused the penetration of the sexual organ of [name] by [insert specific allegations, e.g., placing his sexual organ in the female sexual organ of [name]]; and
- this penetration was without the consent of [name] because the defendant used physical force, violence, or coercion and by that physical force, violence, or coercion compelled [name] to submit or participate.
[Select one of the following. Choose the second option if incident unanimity has been raised by the evidence and there has been no request for election.]
You must all agree on elements 1 and 2 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or both of elements 1 and 2 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, both of the two elements listed above, you must find the defendant “guilty.”
[or]
The state has presented evidence of more than one incident to prove sexual assault as alleged [in the indictment/in count [number]]. To reach a guilty verdict [in this case/in count [number]], you must all agree that the state has proved elements 1 and 2 listed above, and you must also all agree that these elements occurred in the same incident. While it is permissible for you all to agree on more than one incident, to reach a guilty verdict in the case, you must all agree that these elements occurred in the same incident or incidents.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1 and 2 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, the two elements listed above, and you all agree on the same incident or incidents when these elements occurred, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in >CPJC 2.1, the general charge.]
Definitions of Culpable Mental States. The instruction provides specific definitions of “intent” and “knowledge” as they apply to the one element involved—pene-tration.
Rather than determine whether the penetration element is a “nature of conduct” element or “result” element, the instruction attempts to define the culpable mental states in a way that is consistent with either characterization of the penetration element.
Culpable Mental State Concerning Lack of Consent. A major concern for the Committee was whether the charge should require a culpable mental state regarding either lack of consent or the specific statutory manner in which lack of consent would be proved. Traditional Texas practice of charging juries in the language of the statute obscured this issue. The approach taken by the Committee requires that it be addressed and resolved.
The Committee recognized that this is important not only for purposes of the jury charge on the offense but also because it affects the availability of a charge on mistake of fact. If no culpable mental state is required regarding lack of consent, a defendant’s evidence that the defendant believed the victim consented will never create a right to a charge on mistake of fact.
Mechanically, the question is whether the requirement in Penal Code section 22.011(a)(1) that the accused act intentionally or knowingly applies to the element “without [the other] person’s consent.”
Some case law suggests the offense requires a culpable mental state regarding lack of consent. In Rubio v. State, 607 S.W.2d 498 (Tex. Crim. App. 1980), the court of criminal appeals held that under a prior statute the state may introduce evidence of extraneous sexual assaults against a sexual assault defendant who places the victim’s consent in issue. The court referred to Rubio with approval in Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007).
The Rubio analysis seems to assume that sexual assault requires some awareness regarding the victim’s lack of consent. Evidence of extraneous assaults would be relevant only if the charged crime required proof of awareness of lack of consent.
Rubio did not address how the then-current statute might have imposed such a requirement. Further, of course, it did not address the current statute.
The Committee was split on the matter. A majority, however, concluded that if faced directly with the issue, the court of criminal appeals would hold that no culpable mental state is required regarding lack of consent.
The major consideration in the majority’s reasoning was that some of the specific statutory ways of showing lack of consent, set out in Penal Code section 22.011(b), impose requirements of culpable mental states. Others do not. This suggests that the legislature intended those ways of showing lack of consent not explicitly requiring culpable mental states to have none.
The above charge covers situations in which the state has chosen to prove lack of consent by proving that the accused compelled the victim to submit or participate by the use of physical force, violence, or coercion under section 22.011(b)(1). No culpable mental state is explicitly required by section 22.011(b)(1), so the charge requires none.
Defining “Penetration” and “Sexual Organ.” The Penal Code does not define either “penetration” or “sexual organ.” In assessing sufficiency-of-the-evidence claims, appellate courts have repeatedly found that the requirement of penetration for sexual assault and aggravated sexual assault is met by evidence of touching “beneath the fold of the [female] external genitalia . . . since vaginal penetration is not required, but only penetration of the ‘female sexual organ.’” Steadman v. State, 280 S.W.3d 242, 247–48 (Tex. Crim. App. 2009); Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992); Allen v. State, 37 S.W. 429, 429 (1896) (“The slightest entry, however, even an entry between the labia of the pudendum, would constitute a rape.”). At one time, jurors could be so instructed. Flannery v. State, 117 S.W.2d 1111, 1114 (1938) (approving of instruction “that the slightest penetration of the body of the female by the sexual organ of the male is sufficient; it is unnecessary that the penetration should be perfect; nor that there should be an entering of the vagina or rupture of the hymen; the entering of the vulva or labia is sufficient”).
The court of criminal appeals in 2015, however, held that it was error to define “penetration” and “female sexual organ.” Green v. State, 476 S.W.3d 440 (Tex. Crim. App. 2015). In Green, the trial court defined “penetration” as something that—
occurs so long as contact with the female sexual organ could reasonably be regarded by ordinary English speakers as more intrusive than contact with the outer vaginal lips and is complete, however slight, if any. Touching beneath the fold of the external genitalia amounts to penetration within the meaning of the aggravated sexual assault statute.
Green, 476 S.W.3d at 446–47. The instructions also defined “female sexual organ” to include not just the vagina but also the external structures. In reviewing these definitions, the court of criminal appeals indicated that they “accurately described the common meanings of the terms.” Green, 476 S.W.3d at 446. The court nonetheless held it was error to provide the jury with nonstatutory definitions because nonstatutory definitions are not considered “law applicable to the case” for purposes of Code of Criminal Procedure article 36.14. Green, 476 S.W.3d at 445. While terms that have acquired particular legal meanings should be defined for jurors, the court rejected the state’s argument that the terms penetration and female sexual organ had acquired any technical meaning, reiterating that inclusion of nonstatutory definitions may constitute an improper comment on the weight of the evidence. Green, 476 S.W.3d at 445–46.
Even though some members of the Committee believed that definitions could assist the jurors in clarifying that penetration of the vaginal canal was not required, in light of Green, the Committee agreed that neither “penetration” nor “sexual organ” should be further defined. While the instruction “Penetration, if any, is complete, however slight,” is not as detailed as the one found to be error in Green, the Committee believed that this instruction also lacks a statutory basis in the current Penal Code and should not be given.
First-Degree Sexual Assault under Section 22.011(f). Section 22.011(f) raises sexual assault to a first-degree felony “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 [the offense of bigamy].” Tex. Penal Code § 22.011(f). In Arteaga v. State, the state attempted to invoke this enhancement on the theory that the defendant was “prohibited from marrying” his daughter (the victim) under a Texas Family Code statute prohibiting marriage between close relations. Arteaga v. State, 521 S.W.3d 329, 332–34 (Tex. Crim. App. 2017). The court of criminal appeals rejected this interpretation and held that the words “under Section 25.01” modified each phrase of the statute, meaning that the enhancement applies if the victim is a person whom the actor was prohibited from marrying (under section 25.01), purporting to marry (under section 25.01), or living with under the appearance of being married (under section 25.01). Arteaga, 521 S.W.3d at 336. Thus, under Arteaga, despite the existence of other statutes that prohibit or invalidate certain marriages, the only law the jury should be instructed on for purposes of the section 22.011(f) enhancement is section 25.01. Arteaga governs offenses that occur before September 1, 2019. For offenses that occur after that date, an amendment to the statute abrogates Arteaga and creates a first-degree enhancement when the incest statute (Tex. Penal Code § 25.02) prohibits sexual intercourse between the victim and defendant. Thus, a defendant who sexually assaults his fourteen-year-old daughter or stepdaughter or thirty-five-year-old adopted cousin is eligible for the incest enhancement under section 22.011(f)(2). Acts 2019, 86th Leg., R.S., ch. 738, § 2 (H.B. 667), eff. Sept. 1, 2019.
In Lopez v. State, the court of criminal appeals further clarified that the state does not have to prove the defendant committed bigamy to trigger the enhancement under section 22.011(f). Lopez v. State, No. PD-1382-18, 2020 WL 2049103, at *1 (Tex. Crim. App. Apr. 29, 2020). Instead, it need only prove that marriage (or purporting to marry or living under the appearance of marriage) with the victim is prohibited by the bigamy statute—which occurs whenever the defendant (or the victim) is already legally married to someone else at the time of the sexual assault. Lopez, 2020 WL 2049103, at *3. The opinion occasionally explains this requirement in terms of proving the defendant’s marriage, but this is not surprising given that all three cases consolidated in Lopez involved married defendants. Because bigamy equally applies when the victim is already married to someone else, that circumstance has also been provided for in the recommended instruction set out in the commentary below.
Under a traditional approach to jury charges, an enhancement like section 22.011(f) would be submitted by asking jurors whether the victim was a person the defendant was prohibited from marrying under the bigamy statute and instructing jurors through submission of the bigamy statute that a defendant is prohibited from marrying someone when he is already married. Indeed, Arteaga counsels that “the bigamy statute is ‘law applicable to the case’ and should [be] included in the [jury] charge because the jury had to understand what ‘prohibited from marrying’ meant.” Arteaga, 521 S.W.3d at 338. Such an instruction might read as follows:
Relevant Statutes
A person commits the offense of sexual assault if the person intentionally or knowingly causes the penetration of the sexual organ of another person by any means without the other person’s consent.
Penetration of another person’s sexual organ is without consent if the person compels the other person to submit or participate by the use of physical force, violence, or coercion.
The offense is a first-degree felony if the complainant was a person whom the defendant was prohibited from marrying, purporting to marry, or living with under the appearance of marriage, under the offense of bigamy.
The offense of bigamy prohibits a defendant who—
- is legally married from—
- purporting to marry or marrying a person other than his spouse under circumstances that would, but for the defendant’s prior marriage, constitute a marriage, or
- living with a person other than his spouse in this state under the appearance of being married; or
- knows that a married person other than his spouse is married
from—
- purporting to marry or marrying that person under circumstances that would, but for the person’s prior marriage, constitute a marriage, or
- living with that person in this state under the appearance of being married.
“Under the appearance of being married” means holding out that the parties are married with cohabitation and an intent to be married by either party.
. . .
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, three elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], intentionally or knowingly caused the penetration of the sexual organ of [name] by [insert specific allegations, e.g., placing his sexual organ in the female sexual organ of [name]]; and
- this penetration was without the consent of [name] because [insert specific allegations, e.g., the defendant used physical force, violence, or coercion, and by this physical force, violence, or coercion the defendant forced the other person to submit or participate]; and
- the offense of bigamy prohibited the defendant from marrying [, purporting to marry, or living under the appearance of being married to] [name] because [the defendant/[name of the complainant]] was, at that time, already married to someone else.
The Committee believed this instruction could be streamlined (and resort to a separate definition of bigamy avoided) by asking jurors the only question that matters: was the defendant (or the victim) legally married to someone else at the time of the sexual assault? The case may raise a fact issue that could entitle a party to request an instruction from the Family Code regarding the validity of marriage that would fit a particular fact situation. In a sufficiency review, an appellate court would only consider that same factual issue, not whether the state had proved that the law of bigamy prohibited a married person from marrying someone else. Indeed, in its analysis of the three consolidated cases in Lopez, the court of criminal appeals found each case sufficient based on that limited factual issue—that the defendant was already married to someone else. See, e.g., Lopez, 2020 WL 2049103, at *5 (“[T]he evidence that Lopez was legally married to the victim’s mother at the time of the sexual assault was sufficient for enhancement.”).
Therefore, the Committee recommends a jury instruction like the following:
Relevant Statutes
A person commits the offense of sexual assault if the person intentionally or knowingly causes the penetration of the sexual organ of another person by any means without that other person’s consent.
Penetration of another person’s sexual organ is without consent if the person compels the other person to submit or participate by the use of physical force, violence, or coercion.
The offense is a first-degree felony if the complainant was a person whom the defendant was prohibited from marrying under the offense of bigamy, which prohibits persons from marrying if one or both of them are already legally married to someone else.
. . .
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, three elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], intentionally or knowingly caused the penetration of the sexual organ of [name] by [insert specific allegations, e.g., placing his sexual organ in the female sexual organ of [name]]; and
- this penetration was without the consent of [name] because [insert specific allegations, e.g., the defendant used physical force, violence, or coercion, and by this physical force, violence, or coercion the defendant forced the other person to submit or participate]; and
- [the defendant/[name of the complainant]] was then legally married.
Comment
Sexual assault is prohibited by and defined in Tex. Penal Code § 22.011. The definitions of culpable mental states are derived from Tex. Penal Code § 6.03. Coercion is defined in Tex. Penal Code § 1.07(a)(9).
Lack of Consent. The crime of sexual assault, as defined in the basic statutory provision, requires that the conduct occur “without [the victim’s] consent.” See Tex. Penal Code § 22.011(a)(1). Section 22.011(b) provides that “[a] sexual assault under Subsection (a)(1) is without consent of the other person” in twelve specified situations. See Tex. Penal Code § 22.011(b).
Some members of the Committee believed that the list of situations in subsection (b) is not exclusive. Consequently, they concluded, the state is entitled to rely simply on section 22.011(a)(1) and have the jury told only that the state must prove that the conduct occurred without the victim’s consent.
A majority of the Committee concluded otherwise. In their view, the statute—p-erhaps somewhat awkwardly—means that the prohibited conduct is without the victim’s consent only if the state proves one of the subsection (b) situations applies.