Is it illegal for a 19 year old male and a 16 year old male to have sexual relations?

Asked on February 14, 2013 under Criminal Law, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

Technically, yes, in Texas it is illegal.  Statutes prohibiting sexual conduct between two males are still "on the books", even though the Supreme Court has declared the statute unconstitutional.  So-- even though illegal-- same sex sexual relations is not likely to be prosecuted under Penal Code 21.06.

However, this conduct can be prosecuted under a different statute-- as sexual assault of a child or indecency with a child.  For both of these statutes, a child is defined as someone under the age of 17 years.  This means the 16 year old is not of legal age to consent.  The 19 year old could be arrested and charged with either sexual assault or indecency.  If the conduct was consensual and they were within three years of age, then the 19 year could assert a defense to the charge-- but that would not save him the embarrassment of being charged and labeled as sex offender.  If this is something that both parties want, they would be better off waiting until the 16 year old reached the age of consent.

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