Court Acknowledges Issues with GA’s Sexual Battery Statute

The defendant argued that with respect to the sexual battery counts, the jury should not have been instructed that a person under the age of 16 is not legally capable of consenting to sex. Georgia’s sexual battery statute, O.C.G.A. § 16-6-22.1, provides that a person commits sexual battery when he “intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.” The defendant argued that a minor’s inability to legally consent removed the “without consent” element from the offense and thus rendered the statute unconstitutional. He argued that, if a minor can never consent to touching of intimate areas, the sexual battery statute would criminalize conduct that was not indecent or sexual, such as putting diaper rash cream on a child or allowing a child to sit on one’s lap.

The Court acknowledged that the sexual battery statute was perhaps problematic as it “could be construed to include non-sexual scenarios such as those proposed by Watson.” However, it did not reach the merits of this issue because the defendant did not raise a constitutional challenge to the statute in the trial court. Appellate courts in Georgia are not permitted to analyze the constitutionality of a statute if the challenge was not “directly and properly made in the trial court and distinctly ruled on by the trial court.” Therefore, the Court held that the defendant was procedurally barred from raising the issue on appeal.

As a result, the Court of Appeals affirmed the defendant’s convictions. The Court recognized, however, that the sexual battery statute may be ripe for a constitutional attack. Criminal defense attorneys in Georgia should take notice of this decision and properly raise this constitutional issue in the trial courts in order to cause the appellate courts to address this issue on the merits in the near future.