GA Court of Appeals Reverses Sodomy Conviction

The trial court instructed the jury that the offense of sodomy is committed if the defendant “perform[ed] a sexual act with the person of [the victim] involving the sex organs of the accused and the mouth of said person.” The defendant asked that the phrase “by force” be added to the instructions, and the trial court denied his request. During deliberations, the jury asked the trial court for the legal definition of sodomy. The court read from the sodomy statute that “a person commits the offense of sodomy when he performs any sexual act involving the sex organs of one person and the mouth or anus of another.”

In 1998, the Georgia Supreme Court decriminalized “private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent” which would otherwise fall under the sodomy statute. Although the use of force is not a statutory element of sodomy, the Court of Appeals held that in light of the case law, the lack of force was a possible defense to the crime of sodomy.

The Georgia Supreme Court has previously held that “when a given instruction fails to provide the jury with the proper guidelines for determining guilt or innocence, it is clearly harmful and erroneous as a matter of law.” The Court noted that even when the jury asked for clarification, the trial court failed to inform the jury that lack of force was a defense. This was especially harmful to the defendant because lack of force was his sole defense.

Thus, the Court of Appeals reversed Jordan’s sodomy conviction and remanded the case for a new trial.