Last edited: November 24, 2007

 

Georgia

  • Statute: Declared unconstitutional 1998 Powell v. State, 16-6-2, Sodomy
  • Penalty: 1 to 20 years
  • Classification: Felony
  • Restrictions: None
  • Statute: 16-6-15, Solicitation of Sodomy
  • Penalty: 1 year/$1000
  • Classification: Misdemeanor
  • Restrictions: None

Statute

16-6-2, Sodomy

(a) A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person. The fact that the person allegedly sodomized is the spouse of a defendant shall not be a defense to a charge of aggravated sodomy.

(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. A person convicted of the offense of aggravated sodomy shall be punished by imprisonment for life or by imprisonment for not less than ten nor more than 20 years. Any person convicted under this Code section of the offense of aggravated sodomy shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.

(c) When evidence relating to an allegation of aggravated sodomy is collected in the course of a medical examination of the person who is the victim of the alleged crime, the law enforcement agency investigating the alleged crime shall be financially responsible for the cost of the medical examination to the extent that expense is incurred for the limited purpose of collecting evidence.

Upheld as to homosexuals on the grounds that there is no fundamental federal constitutional right to "engage in sodomy." Bowers v. Hardwick, 478 U.S. 186 (1986).

16-6-15, Solicitation of Sodomy

(a) A person commits the offense of solicitation of sodomy when he solicits another to perform or submit to an act of sodomy. Except as provided in subsection (b) of this Code section, a person convicted of solicitation of sodomy shall be punished as for a misdemeanor.

(b) A person convicted of solicitation of sodomy when such offense involves the solicitation of a person under the age of 17 years to perform or submit to an act of sodomy for money shall be guilty of a felony and shall be fined not less than $1,000.00 nor more than $5,000.00 or shall be imprisoned for not less than one year nor more than five years, or both fined and imprisoned.

History

            1817     Sodomy first becomes a criminal offense in Georgia, 85 years after its organization as a colony. It is the only one of the 13 colonies in which sodomy was legal throughout the colonial period.

            1833     Georgia enacts a unique sodomy law (later copied by American Samoa) in which sodomy was defined as “carnal knowledge and connection against the order of nature by man with man, or in the same unnatural manner with woman.” Thus, what men and women could legally do or not was determined by what it was possible for two men to do. This law also clearly exempted Lesbians from prosecution.

            1938     A Georgia appellate court publishes the first known case concerning a sodomy prosecution for interfemoral intercourse. The court says that this does not constitute sodomy.

            1939     The Georgia Supreme Court is the first U.S. court to publish a sodomy case involving two women. Because of Georgia’s unique 1833 sodomy law wording, the Court finds that the women can not be prosecuted. The Georgia legislature makes no effort to change the law.

            1953     The Georgia Supreme Court decides the only known case in which a mother sued the employer of a man who engaged in sodomy with her son. She loses the case.

            1968     Georgia becomes the first Southern state to enact a comprehensive criminal code revision following the publication of the Model Penal Code. It does not follow the recommendation to repeal its sodomy law, but instead retains it as a felony and makes it applicable to Lesbians as well.

            1986     It is the Georgia sodomy law that is subject of the U.S. Supreme Court’s decision that homosexual sodomy is not a fundamental right.

Repeal Efforts

SB 442 - Introduced January 15, 1998

Legal

Fornication Law Repeal: In re: J.M., (No. SO2A1432)

Powell v. State of Georgia, 1998
Anthony Juan Powell was charged with the rape and aggravated sodomy of his 17-year-old niece by marriage. He admitted to performing oral sex on his niece as his pregnant wife slept in the next room. The jury acquitted Powell of rape and aggravated sodomy charges but convicted him of consensual sodomy. He was sentenced to five years in prison but was released on bond pending appeal.

In 1998 in Powell v. State Chief Justice Robert Benham in his opinion for the 6-1 majority wrote, "[w]e cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than consensual, private, adult sexual activity."

The majority relied on a 1905 Georgia Supreme Court case which recognized a "liberty of privacy" guaranteed under the state constitution. "Today, Georgia recognizes the right of privacy as a fundamental constitutional right," Benham wrote in the decision. ". . . It is clear that consensual sexual behavior conducted in private between adults is covered by the principles espoused (in the 1905 ruling) since such behavior between adults in private is recognized as a private matter."

State of Georgia v. Christensen, 1996
This was a challenge to Georgia's sodomy law under the Georgia State Constitution. The defendant was arrested after an undercover police officer successfully induced him to ask the police officer to go to a motel for sex. Since the acts were to take place in private, the defendant was charged with soliciting sodomy. The ACLU of Georgia assumed representation in the Georgia Supreme Court. The ACLU argued that the Georgia sodomy statute violates the Georgia constitutional right to privacy, the first constitutional right to privacy to be recognized in America. The court upheld the law over two strong dissents.

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