PD-0262-20 & PD-0263-20 06/17/2020
1. “Did the court of appeals err when it held as a matter of law that selling sexual contact with a four-year-old child could never constitute compelled prostitution?”
2. “Must a child knowingly engage in an act of prostitution for the person who sold sex with her to be guilty of compelling prostitution?”
Turley was convicted of compelling prostitution and trafficking by compelling prostitution, both of which involved his four-year-old daughter. The court of appeals reversed. It held that because the child could not commit prostitution as a matter of law, the evidence was insufficient to support Turley’s convictions. Compelling prostitution and trafficking based on compelling, the court observed, require that the child knowingly committed prostitution. Tex. Penal Code §§ 20A.02 (trafficking), 43.05 (compelling). Here, the child could not have been prosecuted or convicted of prostitution (or found delinquent) because a child under 15 cannot be held criminally liable. Tex. Penal Code § 8.07. Further, the child could not have committed prostitution because she lacked the mental capacity to consent to sexual conduct. In support, the court cited the Texas Supreme Court’s opinion in In re B.W., which held that a child under 14 could not be charged with prostitution because a child under 14 lacks the capacity to knowingly agree to engage in sex for a fee. 313 S.W.3d 818 (Tex. 2010).
The State contends that the lower court’s decision conflicts with the Court of Criminal Appeals’ holding in Davis v. State, which held, contrary to In re B.W., that a completed prostitution offense is not a prerequisite for compelling. 635 S.W.2d 737 (Tex. Crim. App. 1982). The State also argues that the court’s opinion results in absurdity by requiring sexual conduct (i.e., the completed offense of prostitution) in cases in which the child is too young to consent to sex. Compelling’s phrase “causes by any means a child younger than 18 years to commit prostitution,” the State asserts, is intended to penalize the compeller’s acts to engage the child in prostitution. The child is not required to knowingly offer, agree to offer, or engage in sex for a fee because Tex. Penal Code § 7.02 applies party responsibility to prostitution. Turley himself committed prostitution by making the offer or agreement on the child’s behalf. Finally, the State points out that the child’s immunity from prosecution does not provide a defense for Turley. See Tex. Penal Code § 7.03.