PD-0282-24 & PD-0283-24 08/21/2024
“Did the First Court of Appeals err in holding that a child between the ages of fourteen and seventeen does not, as a matter of law, lack the ability to consent to sex for purposes of committing prostitution?”
Milton was convicted of knowingly transporting a child under eighteen to cause her to become a victim of prostitution under Penal Code § 43.05. For compelling prostitution, “a person commits an offense if the person knowingly . . . causes by any means a child younger than 18 years to commit prostitution, regardless of whether the actor knows the age of the child at the time of the offense.” Tex. Penal Code § 43.05(a)(2). The commission of prostitution requires that the child knowingly committed prostitution. Tex. Penal Code § 43.02(a).
Milton raised a legal sufficiency challenge on appeal, arguing that because the victim was under eighteen, she could not have consented as a matter of law to commit prostitution. In his view, lack of legal consent negates knowingly committing prostitution. Milton, therefore, asked the lower court to extend Turley v. State, which held that a victim under fourteen could not consent to knowingly engage in sex for a fee, to victims under eighteen. 597 S.W.3d 30 (Tex. App.—Houston [14th Dist.] 2020 granted), overruled on other grounds by Turley v. State, 691 S.W.3d 612 (Tex. Crim. App. 2024).
The court of appeals decided Turley was irrelevant and held that children aged fourteen to seventeen could consent, and the victim here was sixteen. The court observed that the statutory schemes distinguish between younger and older teens. For example, it is a defense to prosecution for sexual assault if the child is younger than seventeen but older than thirteen and the accused is no more than three years older than the child, or the accused is the child’s spouse. The court concluded that the existence of such defenses generally refuted “Milton’s blanket assertion that children fourteen to seventeen years of age can never consent to sex as a matter of law.”
Milton urges the Court of Criminal Appeals to extend Turley. Milton contends that none of the defenses that would authorize a child’s consent applied in this case; thus, the child did not fall under the narrow circumstances in which consent can be considered.
