For whatever reason, the offense traditionally known as "statutory rape" is not prosecuted very often when the child victim is older than 14 years of age and the sex is consensual. However, the laws prohibiting any form of sex with children under the age of 17 are still on the books, and it is within a prosecutor's discretion as to whether or not he or she wishes to pursue such charges against an individual. A cynical person might argue that such decisions are usually politically motivated.
Section 22.011 (a) (2) of the Texas Penal Code provides that a person who has sexual relations with a child younger than 17 years of age is guilty of Sexual Assault. Under this section of the Penal Code, "sexual relations" may include conventional sexual intercourse, oral sex, anal sex and/or oral-anal sex.
The most important thing to note about this criminal statute is that it does not actually require any assault to take place. Thus, an adult who has consensual sex with a child under 17 years of age is guilty of Sexual Assault, even if the child was the one who initiated the sexual encounter. In addition, it is not a defense to prosecution that the adult mistakenly believed that the child was 17 years of age or older.
This statute does not apply if the adult and child engaging in sexual conduct are legally married. Also, if an adult who has sexual relations with a child can show that the child was 14 years of age or older at the time of the encounter, and that the adult is no more than three years older than the child, he or she cannot be convicted under this statute.
Generally, an offense under this statute is a felony of the second degree, punishable by two to twenty years in prison and a fine of up to $10,000.00. If, however, the child victim is under the age of 14, the offense is enhanced to a felony of the first degree, punishable by imprisonment for life or for a term of not more than 99 years or less than five years, and a fine not to exceed $50,000.00.
21.11. Indecency With a Child
(a) A person commits an offense if, with a child younger than 17 years and not the person's spouse, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:
(A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or
(B) causes the child to expose the child's anus or any part of the child's genitals.
(b) It is an affirmative defense to prosecution under this section that the actor:
(1) was not more than three years older than the victim and of the opposite sex;
(2) did not use duress, force, or a threat against the victim at the time of the offense; and
(3) at the time of the offense:
(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.
(c) In this section, "sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.
Because the "child" involved was "less" than 14, the 16 year old could be charged with "indecency with a child".
HOWEVER ALSO NOTE:
It is an affirmative defense to prosecution under this section that the actor:
(1) was not more than three years older than the victim and of the opposite sex;
(2) did not use duress, force, or a threat against the victim at the time of the offense; and
You can press charges, but getting it to stick may be difficult based on the minimal age difference, that they were of the opposite sex, and that it was "consentual", in that no force or duress was involved.
