A decade ago, Texas lawmakers created a new law that was designed to hold the most serious child predators accountable.
Called “super aggravated sexual assault,” the charge created harsher penalties for predators who abuse children age six or younger, requiring them to serve at least 25 years in prison.
But a KVUE Defenders investigation has found prosecutors rarely use the law.
Over the past decade, prosecutors have sent just 91 child predators to prison under the tougher law, even though there have been 26,000 child sex crimes during that time.
The 91 cases include Greg Kelley, who became the first person ever convicted in Williamson County for super aggravated sexual assault of a child. He is now out of prison on bond as officials try to reverse his conviction, which prosecutors now say was the result of a flawed investigation.
A judge is expected to make her recommendations to the state’s highest criminal court, which has the final say, in the next couple of weeks.
Allison Benesch, a former Travis County child sex crimes prosecutor and now an adjunct professor at The University of Texas School of Law, said prosecutors were initially pleased that lawmakers had added a new law to help hold offenders accountable.
“I think the initial reaction from prosecutors is that we were pretty thrilled that this was going to be a good thing, that there was going to be an automatic minimal punishment of 25 years,” she said.
But she said over the years, prosecutors are often reluctant to turn to the law because child sex crimes are often challenging to take to trial.
“There tends to be no eyewitness, they tend to occur in the confines of a relationship between just the perpetrator and the child, very often there is not any medical evidence to corroborate, very often there is not physical evidence to corroborate,” she said. “Those are all things that juries will be looking for.”
Instead of going forward on that charge, prosecutors often elect to proceed on a lesser charge with a less harsh sentence in hopes of getting a guilty plea.
A grandmother, whose granddaughter was sexually assaulted by a man in a case that led to his conviction in Travis County, said she is glad the law is on the books. She said her granddaughter, who was four when the crime happened, still struggles to move forward.
“She suffers from depression and anxiety,” she said. “She is uncomfortable. She can't be seen by a male doctor. She has a problem with male teachers."
“Prison is too good for him in my opinion,” she added.