Legal Question in Medical Malpractice in Texas

The question is does massaging a person's prostate for therapeutic purposes amount to the definition of sexual contact under the Texas Penal Code Section 43.02. That is, can a massage be considered criminal prostitution? Sexual contact for a fee is illegal. The purpose of the touching is what can change an act from legal to illegal. If the therapist is touching the person to arouse the person or to gratify any sexual desire of any person, for a fee, then this is considered illegal as it fulfills the definition of prostitution.

I imagine that if a prosecutor sought to charge someone with prostitution in this context that the prosecutor would have to show the surrounding circumstances that would prove the intent was indeed sexual.

Because of the fact that people are innately unable to know the intent of one another, and evidence of intent is always vague in a way, I think the most cautious advice is not to engage in the activity. However, there are certain aspects of medicine that require the touching of sensitive areas, and of course, this is completely legal because it is professional and for medical reasons.

To answer your question in sum: It all depends on the intent of the action itself. If you are not a medical doctor, the best bet is don't do it.

I have enclosed the Texas Penal Code on Prostitution, along with the legal definition of Sexual Contact for your reference:

(3) "Sexual contact" means any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.

Sec. 43.02. PROSTITUTION. (a) A person commits an offense if he knowingly:

(1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or

(2) solicits another in a public place to engage with him in sexual conduct for hire.

(b) An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire him or offers to hire the person solicited.

(c) An offense under this section is a Class B misdemeanor, except that the offense is:

(1) a Class A misdemeanor if the actor has previously been convicted one or two times of an offense under this section;

(2) a state jail felony if the actor has previously been convicted three or more times of an offense under this section;

(3) a felony of the third degree if the person solicited is 14 years of age or older and younger than 18 years of age; or

(4) a felony of the second degree if the person solicited is younger than 14 years of age.

(d) It is a defense to prosecution under this section that the actor engaged in the conduct that constitutes the offense because the actor was the victim of conduct that constitutes an offense under Section 20A.02.