IN RE BW

• Decision Date: 18 June 2010
• Docket Number: No. 08-1044.,08-1044.
• Parties: In the Matter of B.W.
• Court: Texas Supreme Court

313 S.W.3d 818

In the Matter of B.W.

No. 08-1044.

Supreme Court of Texas.

June 18, 2010.

Michael A. Choyke, Wright Brown & Close, LLP, Annette Elizabeth Johnson, Johnson Law Firm, P.C., Michelle W. Bush, Attorney at Law, Houston, TX, for Petitioner.

Daniel Clark McCrory, Assistant District Attorney, Terrance Windham, Harris District Attorney's Office, Jessica Macklin Milligan, Harris County District Attorney's Ofc., Patricia Rae Lykos, Harris County District Attorney, Helen Jackson, Houston, TX, for Respondent.

Karen Anne Clark, Children at Risk, Houston, TX, for Amicus Curiae Children at Risk.

Justice O'NEILL delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice MEDINA, Justice GREEN, and Justice GUZMAN joined.

In this case we must decide whether the Legislature, by its wholesale incorporation of Penal Code offenses into the juvenile justice provisions of the Family Code, intended to permit prosecution of a thirteen-year-old child for prostitution considering its specific pronouncement that a child under fourteen is legally incapable of consenting to sex with an adult. We conclude that transforming a child victim of adult sexual exploitation into a juvenile offender was not the Legislature's intent, and reverse the court of appeals' judgment.

I. Background

B.W. waved over an undercover police officer who was driving by in an unmarked car and offered to engage in oral sex with him for twenty dollars. The officer agreed. When B.W. entered the officer's car, he arrested her for the offense of prostitution. B.W. was originally charged in criminal court, but when a background check revealed that she was only thirteen the case was dismissed. Charges were then refiled under the Family Code, which governs juvenile proceedings. TEX. FAM. CODE §§ 51.02(2), .04(a).

Before trial, a State psychologist examined B.W. During the examination, B.W. related a history of sexual and physical abuse. The psychologist concluded that B.W. was "emotionally impoverished, discouraged and dependent." The psychologist noted that the report should be viewed with caution given that some of B.W.'s statements were inconsistent with probation records, but expressed concern over B.W.'s untreated substance abuse and her report that she had been living, and having sex, with her thirty-two-year-old "boyfriend" for the last year and a half.

At trial, pursuant to an agreed recommendation, B.W. pleaded true to the allegation that she had "knowingly agreed to engage in sexual conduct ... for a fee." Following her plea, the trial court found that B.W. had engaged in delinquent conduct constituting a Class B misdemeanor offense of prostitution as defined by section 43.02 of the Penal Code, and placed her on probation for eighteen months. The trial court denied B.W.'s motion for new trial and granted her permission to appeal. The court of appeals affirmed. 274 S.W.3d 179. We granted B.W.'s petition for review to consider the challenges she raises to her adjudication of delinquency for the offense of prostitution.

II. Discussion

The statute proscribing prostitution is found in the Texas Penal Code, which does not generally apply to juveniles under the age of seventeen. See TEX. PENAL CODE § 8.07. Instead, the Legislature made a blanket adoption of the Penal Code into the Texas Family Code, which provides that the juvenile justice courts have jurisdiction in all cases involving delinquent conduct of children between the ages of ten and seventeen. TEX. FAM.CODE §§ 51.02(2), .04(a). The Family Code defines "delinquent conduct" as "conduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail." Id. § 51.03(a)(1). One of the purposes of placing such jurisdiction in civil courts under the Family Code is to "provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions." TEX. FAM.CODE § 51.01(3).

The offense of prostitution is punishable by confinement in jail, see TEX. PENAL CODE §§ 12.22(2), 43.02(a), and therefore falls under the Family Code's definition of "delinquent conduct." Under the Texas Penal Code, a person commits prostitution if the person "knowingly offers to engage, agrees to engage, or engages in sexual conduct for a fee." TEX. PENAL CODE § 43.02(a)(1). "A person acts knowingly, or with knowledge, with respect to the nature of his conduct ... when he is aware of the nature of his conduct." TEX. PENAL CODE § 6.03(b). Thus, "knowing agreement" suggests agreement with an understanding of the nature of what one is agreeing to do. B.W. contends the Legislature cannot have intended to apply the offense of prostitution to children under fourteen because children below that age cannot legally consent to sex. See TEX. PENAL CODE § 22.021 (criminalizing sex with a child irrespective of consent). The State, on the other hand, claims that consent by a child under the age of fourteen is a shifting concept designed to protect victims of sex crimes rather than juvenile offenders like B.W. We agree with B.W.

The notion that an underage child cannot legally consent to sex is of longstanding origin and derives from the common law. See, e.g., State v. Hazelton, 181 Vt. 118, 915 A.2d 224, 233-34 (2006) ("The rule that an underage child cannot consent to sex need not derive from statute, as suggested by the dissent, but is a part of common law"); Payne v. Commonwealth, 623 S.W.2d 867, 875 (Ky.1981) ("The conclusive presumption of inability to consent is not of recent vintage. It has been with us at least from the reign of Queen Elizabeth of England (1558-1603)."); see also MODEL PENAL CODE § 213.1, Comment at 276 (1980); WILLIAM BLACKSTONE, 4 COMMENTARIES *212. While at the time of Blackstone this age was set at ten, every state in the United States has raised this age by statute. See Payne, 623 S.W.2d at 875 ("Coming to this country as a part of our common law, the doctrine has universally been spoken to by the state legislative bodies."); MODEL PENAL CODE § 213.1, Comment at 324 ("No state continues the common-law rule of 10 years"). Texas follows the majority of states which have established a two-step scheme that differentiates between sex with a younger child and sexual relations with an older teen. See id. at 325. (citations omitted). See also TEX. PENAL CODE §§ 22.011, .021. The rule's underlying rationale is that younger children lack the capacity to appreciate the significance or the consequences of agreeing to sex, and thus cannot give meaningful consent. See, e.g., Hazelton, 915 A.2d at 234; Collins v. State, 691 So.2d 918, 924 (Miss.1997); Coates v. State, 50 Ark. 330, 7 S.W. 304, 304-06 (1888); see also Anschicks v. State, 6 Tex.App. 524, 535 (Tex. Ct.App.1879); cf. Roper v. Simmons, 543 U.S. 551, 569, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding that as compared to adults, juveniles have a "`lack of maturity and an underdeveloped sense of responsibility'... they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure") (quoting Johnson v. Tex., 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993)); Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (confirming the Court's observations in Roper about the difference between juvenile and adult minds).

Our Legislature has incorporated this rationale into the Texas Penal Code. In enacting the sexual assault statute, section 22.011 of the Texas Penal Code, the Legislature made it a crime to intentionally or knowingly have non-consensual sex with an adult, or sex under any circumstances with a child (a person under seventeen). TEX. PENAL CODE § 22.011. There are defenses available if the child is at least fourteen, such as when the accused is no more than three years older than the child, or when the accused is the child's spouse. TEX. PENAL CODE § 22.011(e). In those instances, the child's subjective agreement or assent becomes the main issue in determining whether or not a crime has been committed. Id. There are no such defenses, however, when the child is under fourteen, irrespective of the child's purported willingness. TEX. PENAL CODE § 22.011,.021. Thus, in Texas, "a child under fourteen cannot legally consent to sex." May v. State, 919 S.W.2d 422, 424 (Tex.Crim. App.1996).

The Legislature has passed a number of statutes providing greater protection against sexual exploitation for underage children. For example, promotion of prostitution involving an adult, without the use of force, threat, or fraud, is a misdemeanor. Compelling a child under eighteen to commit prostitution, however, is treated as a crime equivalent to using "force, threat, or fraud" to compel an adult to commit prostitution, and is a second-degree felony. TEX. PENAL CODE §§ 43.03, .05.¹ Similarly, sexual assault of a child under fourteen is considered "aggravated sexual assault" and is subject to the same consequences as the rape of an adult involving serious bodily injury or other aggravating circumstances. TEX. PENAL CODE §§ 22.011, .021; see also TEX. PENAL CODE § 43.25(e) (imposing harsher penalties for inducing a child under fourteen to engage in sexual conduct or performance); TEX. PENAL CODE § 20A.02 (imposing harsher penalties for trafficking a child under eighteen for purposes of compelling prostitution or sexual performance). In passing these statutes, the Legislature has expressed both the extreme importance of protecting children from sexual exploitation, and the awareness that children are more vulnerable to exploitation by others even in the absence of explicit threats or fraud.

It is difficult to reconcile the Legislature's recognition of the special vulnerability of children, and its passage of laws for their protection, with an intent to find that children under fourteen understand the nature and consequences of...