Georgia Court of Appeals Upholds Molestation Conviction for Act of Public Indecency

The Georgia Court of Appeals has affirmed a child molestation conviction where a man allegedly exposed himself to a 13 year-old in Cobb County.

Philip Evans was convicted by a Cobb County jury of pressing his genitals against the glass of a passenger window of a car parked in a shopping center parking lot.  A 13 year-old girl was in the passenger seat.  Evans was arrested at the store and convicted of charges of public indecency, a misdemeanor, as well as child molestation, a felony.

The case is an example of how the offense of child molestation under Georgia law does not require the actual touching of a child. Under O.C.G.A. § 16-6-4, the offense of child molestation includes:

“… any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”

Therefore, conduct that would have historically been considered “indecent exposure” or “public indecency” may now be prosecuted as felony child molestation if it is witnessed by anyone under the age of 16.

While the facts of this case may not raise too many concerns over the reach of the statute, many individuals in Georgia have been convicted of child molestation for acts committed in the privacy of their own home. For example, if a person commits an indecent act (i.e., masturbation) in an area of the home that is visible to others (i.e., near a window), he or she can be prosecuted for child molestation if the act is observed by a minor.

If you are a criminal defense attorney in Georgia and are representing a client in this situation, the defense must prove either (1) that the client was not aware of the child’s presence; or (2) that the “indecent act” was not committed with the intent to arouse the client’s sexual desires. In recent years, these cases have been aggressively prosecuted in Georgia and the consequences if convicted (mandatory prison sentence, lifetime sex offender registration) are just as severe as any other child molestation case.