Will Gwinnett County Deputy Michael Lomax Get Away With Kid Sodomy?
Nov. 7, 2016 (Fault Lines) – The Atlanta Journal-Constitution’s lede pulls no punches:
A Gwinnett County sheriff’s deputy resigned after he was arrested at his home Wednesday on aggravated child molestation and sodomy charges.
That’s disgusting. Who is it, and what did he allegedly do?
Michael Lomax is accused of engaging in a sex act with a 13-year-old he met on Grindr, a gay social networking app that allows users to meet other users in their area.
That’s a little less bad than the horrors usually implied by the phrase “child molestation,” but it’s still pretty bad. Thirteen-year-olds can’t consent, even if they seek you out on Grindr, and if Lomax did perform an “immoral or indecent act” with an underage boy, he richly deserves to be punished.
Lomax, who for the past two years has worked as a prison screw in Gwinnett County, has already resigned his position. His former boss (and owner of a name perfectly suited to being a Georgia sheriff,) Butch Conway, made the following statement after news of the arrest broke:
While I am extremely disappointed in the actions of Lomax and am glad to see him behind bars, I am also alarmed that minors can access social media apps of this nature and utilize them to meet strangers.
Frankly – and this is a new and upsetting feeling – I agree with the sheriff. It is alarming that thirteen-year-olds are using Grindr, and it’s probably time for the parents of the victim in this case to take their son’s smartphone away. (Though given that it was the mother who alerted police, that and more has probably already happened.)
All in all, from a criminal law perspective, there doesn’t seem to be much of a problem here. It’s even refreshing to note that the sheriff, who’s been in office for nineteen years, didn’t try and equivocate on behalf of his deputy.
Part of the reason may be that Gwinnett County has seen a surprising number of its deputies – six, counting Lomax – arrested in the past five years. Of the six, four were jailers accused of sexual misconduct with inmates. Even more surprisingly, the Butts County District Attorney’s office, to which Gwinnett apparently outsources prosecutions of its police force, has met with success in at least one case: Deputy Duone Clark, who was charged with sexually abusing a transgender inmate, was sent to prison in 2014. Unlike in other places where police departments and prosecutors’ offices vie with each other to scuttle investigations into law enforcement, it seems Gwinnett County has the semblance of a working process for rooting out problem cops.
So I guess we can end this post ea- …wait. According to the Journal-Constitution, Lomax was arrested on a charge of sodomy?
That’s right: Georgia does in fact still have sodomy on its books, even though the state Supreme Court struck down the portion of the law pertaining to consensual acts in Powell v. State (1998), five years before SCOTUS’ decision in Lawrence v. Texas invalidated similar laws across the United States. (Keeping unconstitutional laws on the books is something of a Georgia specialty: in 2004, the state Supreme Court struck down its hate crimes law as unconstitutionally vague, and the lege still hasn’t gotten around to removing it or drafting a replacement).
And it gets better. Lomax wasn’t just charged with sodomy, but with a count of aggravated child molestation. If you look at Georgia’s child molestation statute, OCGA 16-6-4 – something easier said than done, because as Fault Lines contributor Andrew Fleischman points out, Georgia likes to sue to keep its laws from being published online – it turns out the precondition for a charge of aggravated child molestation is either an act that physically injures the child or one that constitutes sodomy.
So at first glance, it seems like we might have a constitutional problem on our hands. If Lomax’s right to privacy, either that conferred by the state Constitution or the one SCOTUS found in the Bill of Rights’ and Fourteenth Amendment’s penumbras in Griswold v. Connecticut (1965), bars prosecuting him for acts of sodomy, do Georgia prosecutors have a case?
Let’s deal with the aggravated child molestation charge first. Nearly sixteen years ago, James Edward Odett, who was found guilty of that offense for sodomizing a thirteen-year-old girl, asked the Georgia Supreme Court to overturn his conviction in light of its decision in Powell. According to Odett, given his right to engage in acts of sodomy, it was a violation of his due process and equal protection rights, whether under the state or federal Constitution, to convict him of aggravated (as opposed to regular) child molestation on the basis of such an act.
In Odett v. State, the Georgia Supremes roundly rejected his claims; as they pointed out, Powell struck down only that part of the sodomy law that regulated acts between consenting people. Because minors can’t give consent, what Odett did wasn’t protected conduct and he was out of luck.
Now, an argument could be made that the Georgia Supremes’ reasoning wasn’t responsive to Odett’s argument. After all, he wasn’t claiming to have a constitutional right to sodomize underage girls, but a right not to be more harshly punished than he would’ve been if he’d molested them another way. Odett’s argument, if anything, is most closely analogous to modern objections to hate-crime enhancements, where constitutionally-protected conduct (like hating on cops or black people) can result in a more severe sentence if the government can link it to a crime.
But regardless of the decision’s merits, there’s clear caselaw here and it means Lomax is screwed. (Lawrence v. Texas, which was decided two years after Odett, doesn’t change anything: it, too, limits itself to consensual sodomy.) On the other hand, he shouldn’t have any trouble wriggling out of the sodomy charge.
Obviously, Lomax can’t be convicted on an unconstitutional and facially inappropriate charge of consensual sodomy. Fortunately for prosecutors, Powell and Lawrence left the part of Georgia’s sodomy law dealing with nonconsensual acts, known as “aggravated sodomy,” O.C.G.A. 16-6-2(a)(2), intact. Unfortunately for prosecutors, the relevant part provides:
A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age.
So Lomax walks on the sodomy charge. But unless he takes a plea, he’s still looking at a minimum of 25 years for aggravated child molestation. He might want to prepare himself for a lengthy stay on the other side of the bars.