‘Jessica’s Law’ comes to Texas
Jessica Lunsford, a 9-year old Florida girl, was kidnapped, raped, and killed by John Couey, a registered sex offender and chronic burglar. He was convicted of capital murder and sentenced to death. Mark Lunsford, Jessica’s father, was motivated by the case to encourage passage of tougher sex offender laws throughout the United States. Although Congress and about 30 state legislative bodies have taken different approaches, the key provisions of those laws have included a 25-year mandatory minimum prison sentence and lifetime electronic monitoring for sex offenders. Texas joined the movement by titling House Bill 8 the “Jessica Lunsford Act” and passing it in the 80th Legislative Session.
The evolution of the Texas version of Jessica’s Law, as it has come to be known in the media, was an amazing thing to watch. Both the House and the Senate had several bills, each claiming to be Jessica’s Law. Many politicians made speeches, each claiming to be tough on sex offenders. Rep. Debbie Riddle (R–Houston) and the House, however, moved first by voting HB 8 out of committee. But when it reached the House floor, so many unanswered questions were raised that the House stopped debate. Over the next weekend, Rep. Dan Gattis (R–Georgetown) helped rework the bill after consulting with prosecutors, defense attorneys, and fellow House members. He then explained the new bill on the House floor. The House approved, and HB 8 moved to the Senate for consideration.
The Senate already had a Jessica’s Law (Senate Bill 5), sponsored by Sen. Bob Deuell (R–Greenville), which had been heard in committee. At that lengthy hearing, Lt. Governor David Dewhurst and Attorney General Greg Abbott testified in favor of the bill. Several groups and individuals, including myself, voiced strong opposition based on the inclusion of excessive mandatory minimum punishments for a broad range of sex offenses and a capital felony for sex offenders. SB 5 was passed out of committee but only with the sponsor’s promise to consider amendments to alleviate concerns raised during the hearing. Those concerns were discussed at numerous meetings, on the Senate floor, and during conference committee meetings. Eventually, those discussions resulted in the final version of HB 8 passing into law.
So, what is Jessica’s Law in Texas?1
Continuous sexual abuse
In 2006, Court of Criminal Appeals Judge Cathy Cochran warned criminal justice officials of a potential “train wreck in Texas law” because of the multiple, conflicting constitutional issues associated with prosecuting sex offenders who commit repeated crimes against children.2 She then suggested, “Perhaps the Texas Legislature can address this conundrum and consider enacting a new penal statute that focuses upon a continuing course of conduct crime—a sexually abusive relationship that is marked by a pattern or course of conduct of various sexual acts.”
Months before the 80th Legislative Session began, Governor Rick Perry’s Deputy General Counsel Mary Anne Wiley solicited ideas for improving prosecution of crimes against children. She called a meeting and invited me, staff members from Sen. Florence Shapiro and Rep. Jerry Madden’s offices, and bill drafters from the Legislative Council to consider such a new law. We proposed language for a new offense of continuous sexual abuse, and each office filed a bill to create the offense. Although those bills did not pass, the language from those bills was added to HB 8 as it made its way through the House and Senate.
The punishment range for this new offense, Penal Code §21.02, is 25 to 99 years or life in prison. There is no provision for early release from the sentence. A subsequent conviction is punished by life in prison without parole.
Continuous sexual abuse involves repeated (two or more) acts of sexual abuse against a child under age 14 over a period of at least 30 days. Acts of sexual abuse include commission of any of these offenses:
• indecency with a child (by contact with genitals or anus but not breast);
• sexual assault;
• aggravated sexual assault;
• aggravated kidnapping with intent to violate or abuse the victim sexually;
• burglary of a habitation with intent to commit a sexual offense; or
• sexual performance by a child.
The sexual abuse may be committed by the defendant against one or more child victims.
Because HB 8 defines this new crime as a continuous course-of-conduct offense, jurors are not required to agree in their guilty verdict on the same acts of sexual abuse that occurred. Instead, the jury must unanimously agree that the defendant committed at least any two of the acts of sexual abuse alleged in the indictment over the minimum period of 30 days. Therefore, the indictment may allege numerous acts of sexual abuse; the child may testify he or she was abused hundreds of times; the prosecutor need not elect specific acts of abuse for isolated consideration by the jury; and the jury may convict without having to agree among themselves as to the particular acts of abuse that occurred, so long as they all agree that at least any two of the acts occurred.
This same approach to defining a continuous course-of-conduct crime has been approved as satisfying the constitutional unanimity requirement in at least five other states.3 By defining the offense in this manner, the trial court can accommodate a child’s more generalized testimony about a history of abuse and dispense with the complications associated with an election as to a specific act, all without offending the requirement that a jury make a unanimous finding that a crime was committed.
To protect against excessively punishing “Romeo and Juliet” relationships, the offense of continuous sexual abuse includes an affirmative defense to prosecution if the defendant was not more than five years older than the victim; did not use duress, force, or a threat; and was not a registered sex offender. This affirmative defense would not apply to any other sex offense, including any lesser-included offenses. (Note: There continues to be a separate three-year “Romeo and Juliet” affirmative defense for indecency with a child and sexual assault of a child.)
Super aggravated sex assault
Early versions of Jessica’s Law, as presented in SB 5, sought to impose mandatory minimum 25-year prison sentences for numerous sex offenses, including the second-degree felony of indecency with a child by contact. After much negotiation, HB 8 focused on only a narrow, particularly violent form of aggravated sexual assault of a child. This mandatory minimum punishment range applies only if:
• the child victim is younger than 6; or
• the child is younger than 14 and the defendant engages in conduct that would elevate a sexual assault of an adult to aggravated sexual assault (e.g., causes serious bodily injury, threatens death, uses or exhibits a deadly weapon, etc.).
As with continuous sexual abuse, the punishment range is 25 to 99 years or life in prison, and there is no provision for early release from confinement. But unlike that new offense, a subsequent conviction for a “super” aggravated sexual assault is punished as a capital felony.
The death penalty
Twenty years ago, the United States Supreme Court held that it was cruel and unusual punishment to execute a defendant for raping an adult woman.4 Louisiana immediately narrowed its law to retain the death penalty for rape of a child. Recently, the Louisiana Supreme Court affirmed the constitutionality of that punishment.5 With the passage of HB 8, Texas joins Louisiana and a minority of states authorizing the death penalty for non-death crimes. HB 8 adds the death penalty or life without parole as the punishment range for a repeat conviction for “super” aggravated sexual assault of a child. Even though the “super” aggravated sexual assault concept is a new law, HB 8 makes the availability of the death penalty for a repeat conviction immediate by not requiring formal affirmative findings of those aggravating circumstances in the prior conviction.6
Anticipating litigation over the extension of the death penalty to a non-death crime, HB 8 authorizes the Court of Criminal Appeals to reform sentences of death to life in prison without parole should the U.S. Supreme Court declare the punishment of death unconstitutional. All of this may be moot, however, given a recent 5-4 opinion by the Texas Court of Criminal Appeals. In Berry v. State, the court held that evidence of future dangerousness (a special issue that must be answered in the affirmative to achieve the death penalty) was insufficient for a defendant who targeted only her own newborn children as victims.7 The majority held that life in prison was sufficient to protect those victims from any future harm.8 Lawyers representing repeat child molesters will no doubt use that same argument to claim that child molesters are no danger to the public when serving life in prison without parole.
For any felony prosecutor handling a sex offense, the most frustrating legal issue has long been the defendant’s eligibility for probation despite the apparent seriousness of the crime. Such eligibility, for example, has made it difficult to qualify citizens to serve on a jury deciding punishment, given the average citizen’s rejection of probation as an appropriate punishment for any sex offense. HB 8 makes three significant changes regarding probation eligibility.
The first change involves the sacred list of crimes contained in article 42.12, §3g, of the Code of Criminal Procedure. Known as the “3g” law, this list has long identified the most serious violent crimes that are ineligible for probation from a judge and, by reference, ineligible for parole until a defendant has served a specific percentage of the sentence. HB 8 adds a new offense to the list: sexual performance by a child.
The second change involves the formula for deciding a defendant’s eligibility for probation from a jury. Until now, that has depended on the length of the sentence (not more than 10 years) and criminal history (no prior felony conviction). To that formula, HB 8 adds a list of sex offenses that are ineligible for probation from a jury as a matter of law. For all of these offenses, except sexual performance by a child, there is an additional condition for ineligibility that the victim be less than 14 years of age:
• indecency with a child (by contact);
• sexual assault;
• aggravated sexual assault;
• aggravated kidnapping (with intent to abuse the victim sexually); and
• sexual performance by a child.
The third change involves the “other” probation: deferred adjudication. HB 8 extends the list of circumstances that disqualify a defendant from deferred adjudication to include one new offense (continuous sexual abuse) and two enhanced punishments (“super” aggravated sexual assault of a child and a repeat sex offender).
In a few more areas, HB 8 increased the punishment for sex offenders. The offense of sexual performance by a child (by producing, directing, or promoting a performance) was increased from a third- to a second-degree felony if the child is younger than 14. The offense of sexual performance by a child (by employing, authorizing, or inducing a child to participate) was increased from a second- to a first-degree felony if the child is younger than 14. Finally, HB 8 expands the repeat sex offender enhancement (life in prison with a 35-year minimum before parole eligibility) by adding indecency with a child (by contact) as an offense that may be enhanced under that provision.
Two years ago, the legislature authorized life without parole for a capital felony, despite warnings that opening the door to no-parole sentences would quickly encourage the expansion of that policy to other offenses, create disciplinary problems in prison, and lead to prison overcrowding. HB 8 fulfills at least one of those predictions by expanding the no-parole policy to include sentences for “super” aggravated sexual assault, continuous sexual abuse, and a repeat sex offender.9
Statutes of limitations
Statutes of limitation for sex offenses have slowly been expanded over the last two decades. HB 8 continues that expansion by adding the following offenses to the list of those offenses, like murder, that have no limitation:
• indecency with a child (by contact or exposure)
• sexual assault (of a child);
• aggravated sexual assault (of a child); and
• continuous sexual abuse of a young child or children.
Limitations also were extended to 20 years after the 18th birthday of a child victim for the following offenses:
• sexual performance by a child;
• aggravated kidnapping (with intent to violate or abuse sexually); and
• burglary of a habitation (with intent to commit certain sexual offenses).
The Texas computerized criminal history database (otherwise known as Texas Crime Information Center or TCIC) maintains detailed information about an offender’s identity, arrests, and case dispositions. Now it will also include the ages of child victims of sex offenses. HB 8, however, provides no clue as to how those people entering this information will obtain it.
In 2000, Texas began a form of civil commitment against sexually violent predators, imposing conditions of supervision as a type of civil probation.10 HB 8 mandates constant electronic tracking of those offenders in real time as a condition of that supervision. That condition was already being applied through agency policy.
Your new office annex
Given all these new laws, you might wonder how you can prosecute them without additional resources. HB 8 provides a controversial solution: the attorney general.
Before HB 8, prosecution assistance was available from the attorney general only upon the request of an elected prosecutor; even then, the attorney general had the discretion to decline to provide the assistance.11 In other words, both parties were required to mutually agree to the assistance, and either party could reject it. HB 8 requires the attorney general, solely upon the request of a county or district attorney, to provide investigative, technical, and litigation assistance in the prosecution of sex offenders who target children. So, it would seem that the county or district attorney, rather than the attorney general working in cooperation with a local elected official, controls the decision regarding assistance. This is a rather radical shift in this constitutional relationship and is likely to challenge past notions of the relationship between the attorney general and elected prosecutors.
ConclusionThere is still much to discover about Jessica’s Law. Given the complexity of the new offense of continuous sexual abuse and the numerous amendments to the sentencing laws, prosecutors would do well to spend lots of time reading HB 8 before heading to court.
Endnotes1 This article does not include footnoted references to each of the new laws. You can get a copy of the bill by going to Texas Legislature Online at www.legis .state.tx.us and entering HB 8 in the bill number search engine for the 80th Legislature list. Then, after clicking the “text” button, download the enrolled bill. Or, you can buy a copy of TDCAA’s updated criminal law book and legislative update, which will be available in August.
2 Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006) (Cochran, J., concurring).
3 State v. Ramsey, 124 P.3d 756 (2005) (Arizona); State v. Johnson, 627 N.W.2d 455 (2001) (Wisconsin); State v. Fortier, 780 A.2d 1243 (2001) (New Hampshire); People v. Calloway, 672 N.Y.S.2d 638 (1998) (New York); People v. Jones, 792 P.2d 643 (1990) (California).
4 Coker v. Georgia, 433 U.S. 584 (1977).
5 State v. Kennedy, No. 05-KA-1981 (La. 5/22/07).
6 Presumably, proof of the existence of those prior aggravating circumstances in the prior offense could be offered during the trial of the new “super” aggravated sexual assault. For a comparable statutory circumstance, see Tex. Pen. Code §22.01(b)(2) (increasing punishment for 2nd family violence assault); Mitchell v. State, 102 S.W.3d 772 (Tex. App.—Austin 2003, pet. ref’d).
7 Berry v. State, No. AP-74,913 (Tex. Crim. App. 5/23/07) (authored by Johnson, J., and joined by Price, Womack, Holcomb, and Cochran, JJ.).
8 For a strong rebuttal to the majority opinion, read the dissent. Berry v. State, No. AP-74,913 (Tex. Crim. App. 5/23/07) (Hervey, J., dissenting, joined by Keller, P.J., Meyer, and Keasler, JJ.)).
9 In a somewhat perplexing addition worthy only of mention in a footnote, HB 8 also mandates that sex offenders serving time for continuous sexual abuse or “super” aggravated sexual assault must participate in and complete sex offender treatment before being released from prison. That should be an interesting trick given the absence of any authority to hold an inmate who discharges a sentence.
10 Tex. Health & Safety Code Chapter 841.
11 See Tex. Gov. Code §402.028; Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002).