Tracy, Shane

Tracy had been estranged from his 17-year-old daughter for several years when he arranged a backyard campout with her. He provided her with alcohol and marijuana, and a few weekends later, the two planned a similar get-together. This time, he took her to his bedroom, kissed her (as she turned her head away and kept her mouth closed) and touched her body under her clothes (as she froze and felt unable to do anything). He eventually pulled his hand out from under her clothes. She had covered her face with her hands, and he panicked, said he shouldn’t have done it, and left the room. Tracy was initially charged with both nonconsensual sexual assault and sexual performance by a child, but the State abandoned the sexual assault charge. The jury convicted Tracy of sexual performance of a child by inducing her to engage in sexual conduct, specifically touching her breast and penetrating her sexual organ. 

Tracy challenged sufficiency of the “inducement” element on appeal. The court of appeals agreed the evidence was insufficient. It held that inducement requires the defendant to have influenced the induced party’s conduct and noted that  the sexual performance victims in other cases complied with those defendants’ sexual requests. Tracy, on the other hand, hadn’t urged his victim to engage in sexual conduct; he forced himself on her, which doesn’t constitute an inducement. The court of appeals also rejected the State’s motion for rehearing, which asked that the conviction at least be reformed to attempted sexual performance.

The State argues that a defendant can still commit the offense of sexual performance if the victim does not consent or the defendant forces sexual conduct on the victim. While it might not constitute a “performance,” the statute doesn’t require that; inducement suffices. Further, the jury could have understood inducement to encompass even inducement through force, as is recognized elsewhere in the Penal Code. The State contends that the victim “engaging in sexual conduct” should require no more than the minimum compliance necessary for sexual conduct to occur, which the State asserts is a better standard than that used by the court of appeals. Alternatively, the State argues the court of appeals should have reformed the judgment to attempted sexual performance based on the usual sufficiency standard instead of employing an ambiguous “clearly support” standard.