Under Georgia Law, We’re All Sex Offenders (Update)
Sept. 11, 2015 (Mimesis Law) — In Georgia, it is illegal for a mall Santa to allow a child to sit in his lap. It is illegal for parents to bathe their children. And every pediatrician is a felon waiting to be discovered. This, according to a 2014 Georgia Court of Appeals decision, that held that the State is “not required to prove lack of consent to establish sexual battery.”
Before going further into the story, let’s get this out of the way: Patrick Watson’s story probably won’t make you like him.
At points during the interview, Watson stated that he had asked if the girls were sexually aroused; that he had touched M. S.’s vagina (which he claimed was accidental); that he had talked with both girls about shaving their pubic regions; that during the shaving discussion he had pulled M. S.’s shorts to the side, exposed and touched her pubic area, and used two fingers to rub the hair next to her vagina; that he had made sexually explicit comments to the girls; that he had previously told M. S. he wanted to perform oral sex on her; and that he had showed K. P. how to check her breasts for lumps after she complained of breast pain. The jury heard a recording of that interview.
But even unsympathetic defendants need to be convicted of every element of a crime beyond a reasonable doubt. And at trial, although Watson argued that the girls had consented to the contact, the trial court instructed the jury that “under Georgia law a person under the age of sixteen lacks legal capacity to consent to sexual conduct.”
This might not seem so bad, until you read the sexual battery statute, which has only three elements.
A person commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.
So you have to touch someone on purpose without consent. But if children can never consent to an adult touching “the primary genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female,” then a jury could convict Watson of sexual battery even if they chose to believe that he was teaching the girls to check themselves for “lumps.”
Even though “sexual battery” has the word “sex” right in the title, there’s nothing about it that requires any sort of sexual intent. So while Georgia’s child molestation statute at least requires that the defendant act “with the intent to arouse and satisfy [his] sexual desires,” there’s nothing to stop a decent prosecutor from convicting a eunuch of sexual battery.
Watson pointed this out to the Court of Appeals, who dismissed his argument on technical grounds, saying that it was a constitutional challenge that hadn’t been properly preserved below. But it also held that even if his objection was perfect, “the trial court’s charge ‘was an accurate statement of the law.’”
This is a terrifying outcome. Parents and caretakers throughout Georgia have spent the past few decades not realizing that they dangled from the thin thread of prosecutorial discretion. A special education teacher who angered the wrong prosecutor could spend five years in jail and become a registered sex offender for touching the intimate parts of a disabled child while moving her. And God help any baseball coach who failed to resist the congratulatory butt pats.
The case is currently before the Supreme Court of Georgia, and in a rare flash of common sense, the State of Georgia has actually conceded that the Court of Appeals got it wrong. The Supreme Court of Georgia, wanting the issue properly litigated, still held a wildly entertaining oral argument where the Justices discussed the legality of nipple tweaking and the threat of prosecution for diaper changes.
The State, having found itself in a reasonable position, seemed tempted to step back from the precipice of informed legal reasoning at oral argument:
“The concern that I have is creating a situation where you have a child of three years old who cannot consent… how can you prove consent in the case of a three year old?”
In other words, “if the defendant is evil enough, how can we get around having to prove all the elements of a crime without just telling the jury to assume it?” Fortunately, the Supreme Court of Georgia seemed unmoved by this line of argument, pointing out that a stranger who touches someone else’s toddler in a shopping cart is going to have a pretty tough time arguing that the kid was asking for it.
Unfortunately, while the prosecutors in this case proved to be pretty sensible, others are still free to take their own position. Until the Court of Appeals’ decision is overturned, there will be nothing to stop a district attorney from using the law as he sees fit.
Cases like Watson show just how far we’ve let hysteria about child molestation erode our sense of reason and civil liberties. In an effort to make all children perfectly safe, we’ve let legislators, prosecutors, and courts collude to make parenting perfectly impossible.
Update (9/14/15): The Supreme Court of Georgia held that consent is a defense to sexual battery.
The offense at issue here, however – despite its denomination as “sexual” battery – does not require any sexual contact at all. Rather, as already noted, it involves non-consensual, intentional physical contact with a victim’s intimate body parts. That an individual younger than 16 is legally incapable of consenting to sexual contact does not necessarily mean that such individual is legally incapable of consenting to physical contact with her intimate body parts. As Watson points out, were we to hold otherwise, the offense of sexual battery – a felony when perpetrated against victims younger than 16, see OCGA § 16-6-22.1 (d) – could include contacts commonly occurring on an athletic field or school playground, contacts attendant to a physician’s breast examination on a 15-year-old patient, and even the act of changing a baby’s diaper. We decline to construe the sexual battery statute in a manner that would criminalize a wide range of apparently innocent conduct.
It’s once again lawful to change a baby’s diaper in the State of Georgia.