It’s illegal in Texas to have sexual contact with a person under 17.
However, if two consenting teens are within three years of age and of the opposite sex, state law provides an “out” for the older party—an affirmative defense to the charge of indecency with a child, otherwise a second-degree felony.
The same affirmative defense is not offered to teens of the same sex, meaning LGBT youth can face prison time for consensual sexual contact, including heavy petting.
It’s unclear whether an LGBT teen has ever been charged under the statute, but House Bill 71, by Rep. Mary Gonzalez (D-El Paso), aims to prevent it from happening in the future. The bill would remove five words—”and of the opposite sex”—from the affirmative defense provision.
“We are trying to make sure all teenagers are treated equally,” Gonzalez told the House Committee on Criminal Jurisprudence during a Monday hearing on HB 71. “This is about policy and not politics, and I know sometimes in this state we struggle to be supportive of LGBT issues, but this isn’t about LGBT issues. This legislation cleans up inconsistencies in statutes that impact teens in some very devastating ways.”
Will Francis, government relations director for the National Association of Social Workers, testified in support of the bill. Francis said currently, a social worker who learns of an intimate same-sex relationship between teens could be required to report it to authorities.
“We believe that’s a discussion that should happen between parents and their children,” Francis said.
Rep. Joe Moody (D-El Paso), a committee member and co-author of HB 71, said he believes if a teen were charged under the current statute, it would be struck down as unconstitutional.
“Why don’t we just save ourselves the trouble? Let’s fix it,” Moody said. “This isn’t a a political deal. This is just a fairness and policy issue.”
The bill cleared the same committee two years ago but never made it to the House floor. Sen. John Whitmire (D-Houston) has introduced a companion this year in the Senate.