Romeo and Juliet Defenses: How the Law Still Discriminates Against LGBTQIA couples

"Romeo and Juliet" Defenses: How Texas Law Still Discriminates and LGBTQIA People

Texas House Bill 331, filed by Rep. Mary Gonzalez, is a very important bill that would equalize the "Romeo and Juliet" defenses to sex assault and allow it to be utilized by LGBT couples.

I am going to explain what that defense is and how the Penal Code discriminates against LGBT people.

You may have heard of something in the Texas law called a “Romeo and Juliet” exception to sexual assault.

Texas Penal Code Section 22.01 defines sexual assault as non consensual sex or sex with someone under 17 years of age. However, it also creates an exception we call the “Romeo and Juliet” exception that makes it an affirmative defense against the charge of sexual assault of a person under 17 years of age if the person accused was not more than three years older than the complaining witness (example: a couple 15 and 18 years), the complaining witness was not younger than 14, and the person charged is not a registered sex offender.

However, this exception also required that the person not be barred from marrying the complaining witness. This made incest illegal even under the “Romeo and Juliet” exception, but it also made this exception completely unavailable to same-sex couples prior to the Supreme Court’s decision in Obergefell – the case that made same sex marriage legal nationwide.

This meant that opposite sex couples could use this exception but same sex couples would still be prosecuted!

Now that Obergefell is the law of the land, it is possible same sex couples may make use of this exception. However, for those already in prison it is not clear if they will be able to challenge their convictions.


Texas Penal Code Section 21.11 defines indecency with a child as exposure of the genitals or anus of a child under 17 years of age. It is commonly the charge used when an adult has sexual-type conduct with a child but not full intercourse – like fondling of the genitals or breasts that involved removal of the clothing. It makes this conduct a felony.

Section 21.11 also creates a “Romeo and Juliet” exception like the one above – parties not more than 3 years apart in age, the complaining witness not under 14, and the actor not a sex offender.

HOWEVER: 21.11 also makes this exception explicitly available only to opposite sex couples. Same sex couples, in spite of Obergefell and legalization of marriage, cannot – absolutely cannot – take advantage of this exception. That means, until the Legislature amends the law or a court finds it unconstitutional, same sex couples will be prosecuted with crimes under 21.11 (indecency with a child) that opposite sex couples will have a defense to under 21.11!

This is fundamentally unfair to same-sex couples and has no real justification. However, it is unlikely the Texas Legislature is going to amend this law. Any change will have to come from a court.
This is one of the many ways that LGBTQIA people can be treated differently, rather explicitly or subtley, by the criminal justice system. If you are LGBTQIA, you need a lawyer who understands your issues and will defend you competently, with full understanding of the barriers you face because of who you are. I can help.

Call me today.

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