Jailbait

Frank Rodriguez faces a lifetime on Texas’ sex offender registry for having sex with a 16-year-old—who is now his wife. He’s not alone.

"Man, this sucks," Frank told Mike afterward. Mike nodded his head.

In February 1996, Mike and Jenifer had split up. Mike made plans to move from Caldwell back to Seattle, where he'd spent part of his childhood. In April, days before he moved, Jenifer told Mike she was pregnant and about two months along and it was his. Mike didn't believe her: Must be a ploy to get him to stay, he thought. He left for Seattle.

At a rest stop in Utah, Mike checked in with his dad. "Get back to Texas," he said.

Dallas attorney Arch McColl says no defense is available for people like Frank Rodriguez or Mike Brandhuber to the felony charge of sexual assault of a child.
Mark Graham
Dallas attorney Arch McColl says no defense is available for people like Frank Rodriguez or Mike Brandhuber to the felony charge of sexual assault of a child.

Jenifer was indeed pregnant, and while Mike was on the road, Jenifer's father, Jack Tamplin, had pressed charges against him. Mike raced back to Caldwell. His first stop was Jenifer's place. He said he was sorry for leaving and of course he'd raise the baby and if she wanted to get married, he'd do that, too. Mike asked Jack about the charges he faced. "There's nothing I can do," Jack said. "It's going through--unless you don't get indicted."

But he was. In May 1996, the second Burleson County grand jury to hear Mike's case indicted him.

By October, Mike had asked Jack if he would allow his daughter to marry him, despite Mike's mistakes. Jack said yes. On the 14th, one month before Jenifer gave birth to Joseph, Mike pleaded guilty to sexual assault of a child. Jack went to the hearing but, feeling ashamed of what he'd done, left the courtroom when Mike pleaded. Mike got five years' probation and deferred adjudication. One of his terms of probation was to have no contact with his victim.

Today, Mike Brandhuber is one of the 46,000 registered sex offenders in the state of Texas. He'll register for the rest of his life.


"Protect our women and children," says Arch McColl, a Dallas defense attorney. That's the mentality of Texas' sexual assault laws, specifically as they relate to cases like Mike Brandhuber's or cases McColl himself tries. It's an old mentality--older than the sexual revolution, older than the industrial age. As old as Texas itself. "This whole law," McColl said at a recent legislative hearing in Austin, "was from 1836."

McColl's 2003 article "Web Surfers Beware," published in the journal VOICE for the Defense, a Texas Criminal Defense Lawyers Association publication, is a concise yet thorough and quite readable history of sexual assault law in Texas. It explains why no defense is available for people like Frank or Mike to the felony charge of sexual assault of a child. (A defendant like Frank or Mike has the right to a trial. But without a defense for the charge, his attorney will tell him to plea.)

Sexual assault is separated into two offenses. One deals with adult victims. The other deals with victims who are minors. "The major difference between the two sections," McColl writes, "is that sexual assault of a child... does not contain the phrase, 'without the consent of the other person' which is included in [the adult offense statute]." (The emphasis is his.) "This means that Josh"--a fictional 24-year-old McColl created for the article--"is guilty of sexual assault, with or without Jill's consent"--Jill being the fictional minor whose mother brought charges against Josh once she caught Josh and Jill naked in Jill's bedroom. "For more than 100 years, Texas courts have not allowed a defendant to use the [minor's] consent as a defense to sexual assault of a child," McColl writes.

It doesn't matter, either, if Jill pursued Josh or if she suggested sex. Now, prior to 1994, Texas' penal code said Josh had a defense if Jill, before having sex with Josh, "engaged promiscuously in conduct..." But after September 1, 1994, "that statute was amended, eliminating the promiscuity defense," McColl writes.

And what if Jill lied about her age, said she was an adult? In some states that's a defense, but not in Texas, McColl writes.

Nor should it be, says Chris Lippincott. He's the spokesman for the Texas Association Against Sexual Assault. He says for every case where the act was consensual, where the girl lied about her age or was the aggressor, TAASA can find a case where a young man raped a girl. "I don't think we should be throwing blame at the victim's feet," he says.

He cites an August 2003 study by the Institute of Domestic Violence and Sexual Assault at the University of Texas at Austin. Of the 330,000 children and adults sexually assaulted each year in Texas, only 52,800, or 18 percent, report it to law enforcement agencies, the study says. "And only a smaller number are investigated. And a smaller number still go to trial. And a smaller number still earn convictions," Lippincott says.

There's a reason for this, says James Quinn, a professor at the University of North Texas who's written a literature review on sex offender crimes. "Sex cases are weak," he says. Sex cases are two people with conflicting stories who offer no outside evidence and no witnesses at the alleged crime scene. In a lot of cases, "it's real hard to prove evidence," he says.

Which is why the Dallas County District Attorney's Office proceeds cautiously with cases where the punishment is as severe as what Frank Rodriguez or Mike Brandhuber faced. Or so says Rachel Horton, a spokeswoman for the district attorney's office. "We do get these sorts of cases all the time. And we handle them on a case by case basis," Horton says.

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