A recent opinion issued by the Texas Court of Criminal Appeals serves as a reminder of a particular quirk of Texas criminal law: For sexual assault offenses, married defendants are subject to more severe criminal penalties than those who are unmarried.

In Estes v. Texas, the defendant, a married adult, was arrested for having sexual relations with one of his son’s friends, a 14-year-old girl. Texas Penal Code § 22.01(f) provides that sexual assault of a minor, typically a second-degree felony, may be a first-degree felony “if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under” the section relating to bigamy. Because the defendant in Estes was married to someone else, the prosecution alleged that the victim satisfied § 22.01(f)--namely, that she was a person to whom the defendant could not be married.

Texas Court of Criminal Appeals Holds Marital Status Enhancement Constitutional

Estes was found guilty of all charges. Over his objection, the court permitted the enhancement of his conviction under § 22.01(f) to a first-degree felony, and he received a 12-year prison sentence. On appeal, the defendant argued that the application of § 22.01(f) was unconstitutional as applied. The statute, he argued, triggered strict scrutiny because it infringed on his constitutional right to marry and would also fail rational basis review because the statute was meant to apply to bigamy, not to all married defendants, and thus the application in his case went against the intent of the legislature. The State argued it had an interest in preventing offenders from using their married status as a “cloak of trustworthiness” to gain access to sexual assault victims. The court of appeals overturned the conviction, finding the state lacked even a rational basis in applying the enhancement so broadly and thus had violated the defendant’s equal protection rights.

The Court of Criminal Appeals reversed and upheld the conviction. The Court acknowledged that the law reflects that “the Legislature apparently wished to provide higher penalties for polygamists ‘who sexually assault their purported spouses’” and that “the resulting statute has the potentially unintended effect of punishing married offenders more harshly than unmarried offenders.” But, the Court concluded, the plain text covered the defendant’s conduct, and the State has a rational interest in punishing those who would exploit the “cloak of trustworthiness” provided by married status; the Court was “unwilling . . . to discard as ‘irrational’ the idea that marriage bestows upon its participants a certain aura of trustworthiness, specifically in regard to children.” Because the court of appeals had rested its decision on rational basis review, the Court of Criminal Appeals declined to address the defendant’s arguments for strict scrutiny, and remanded for further proceedings.