Forsyth County Arrest Will Test the Breadth of Georgia’s Child Molestation Statute

According to the Forsyth County Sheriff’s Office, the girls’ mothers dropped them off at the rink on the evening of September 22nd. The girls wanted to buy glow sticks at the concession counter but had lost their spending money. According to one of the girl’s mothers, when the girls asked Westbrooks if they could pay for the glow sticks later, he told the girls he had two blue glow sticks and then said “Show me your boobs.” The girls then ran away.

Under Georgia’s child molestation statute, O.C.G.A. § 16-6-4, a person commits the offense of child molestation when he “[d]oes 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.”

The State has charged Westbrooks with two counts of child molestation. Although the girls do not claim that Westbooks touched them in any way, it is theoretically possible that he can be convicted of child molestation. The statute requires only that the person commit “any immoral or indecent act” to, with, or in the presence of a child. Thus the question becomes whether the statement “Show me your boobs” qualifies as an immoral or indecent act.

In State v. Vines, 226 Ga. App. 779, 487 S.E. 2d 521 (1997), the Georgia Court of Appeals held that speech alone, unaccompanied by other action, is sufficient to satisfy the statutory requirement that the accused perform an immoral or indecent “act.” The court concluded that “the indictment alleging that Vines initiated a conversation with the child about sexual acts including fondling of private parts, intercourse and oral sodomy with the intent to arouse and satisfy his sexual desires alleges an immoral or indecent act which the child molestation statute was enacted to prohibit.”

It could be argued that the sexually explicit content of the conversation in Vines is distinguishable from the rather vague statement made by Westbrooks. The question would be whether Westbrooks’ statement was sufficiently “immoral or indecent” to qualify as child molestation.

Although the majority of child molestation convictions in Georgia have involved some form of physical contact between the accused and the victim, the Georgia appellate courts have affirmed convictions involving speech and other actions in which there was no physical contact. For instance, in Smith v. State, 178 Ga. App. 300, 301 (342 S.E.2d 769) (1986), the defendant was convicted of child molestation for showing and describing the use of a condom to a child. In another count, Smith was convicted for observing the child’s use of a mechanical vibrator. Now, these offenses undoubtedly qualify both immoral and indecent acts. Clearly, Westbrooks’ statement to the girls is much less egregious in nature and clearly distinguishable from the acts in the Smith case.

Westbrooks essentially has four possible defenses here: (1) that he did not make this statement to the girls; (2) that the statement does not constitute an “immoral or indecent act” under the child molestation statute; (3) that the statement was not made to satisfy his sexual desires (i.e., if the statement was made in jest); or (4) that the incident as described by the girls only constitutes criminal attempt to commit child molestation (under O.C.G.A. § 16-4-1, a person commits criminal attempt when “with the intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”). In Wittschen v. State, 259 Ga. 448, 383 S.E.2d 885 (1989). a remarkably similar case, the defendant approached two girls in his van while they were roller skating. He held up several dollar bills and asked the girls if they wanted the money. When they said yes, the defendant said “Let me stick my hand down your pants,” and the girls immediately ran away. The Georgia Supreme Court found that the defendant’s statement constituted criminal attempt to commit child molestation.

This case has the potential to have far-reaching implications in Georgia as the child molestation statute is rarely used to prosecute immoral speech–let alone speech that is only moderately explicit in nature.  If a court determines that this conduct constitutes child molestation, it could truly change the way we interpret the word “molestation” for years to come.