B.L.S., In Interest of

• Decision Date: 21 November 1994
• Docket Number: No. S94A1035,S94A1035
• Court: Georgia Supreme Court
• Parties: In the Interest of B.L.S., a child.

Page 823

449 S.E.2d 823

264 Ga. 643

In the Interest of B.L.S., a child.

No. S94A1035.

Supreme Court of Georgia.

Nov. 21, 1994.

Grady K. Dukes, Conyers, for appellant.

Cheryl Fisher Custer, Dist. Atty., Conyers, Michael J. Bowers, Atty. Gen., Atlanta, James M. Miskell, Asst. Dist. Atty., Conyers, for State.

CARLEY, Justice.

Appellant was found to be delinquent by reason of his commission of an act of statutory rape in violation of OCGA § 16-6-3. He appeals and raises, among his enumerations of error, the juvenile court's denial of a challenge to the constitutionality of OCGA § 16-6-3.

1. Appellant urges that, to adjudge him to be delinquent for engaging in sexual intercourse with an under-age female "merely because [he] happens to be a male, and the [under-age] female ... is not held to any sort of ... responsibility is a clear violation, by state action, of equal protection under the law."

The age of criminal responsibility is 13. OCGA § 16-3-1. For purposes of delinquency, however, a "child" is one who is under the age of 17. OCGA § 15-11-2(2)(A). OCGA § 16-6-4 provides penalties for child molestation identical to those for statutory rape. Thus, a woman of at least 13 years of age who engages in sexual intercourse with a male who is under the age of 14, "while violating a different Code section, is subject to the same penalties as a man who commits statutory rape." Barnes v. State, 244 Ga. 302, 305(1), 260 S.E.2d 40 (1979). A "delinquent act" is "[a]n act designated a crime by the laws of this state...." OCGA § 15-11-2(6)(A). Thus, a female "child" under the age of 17 who engages in sexual intercourse with a male who is under the age of 14 is subject to the same delinquency adjudication as a male "child" who is adjudged to be delinquent by reason of his commission of statutory rape. It follows that OCGA § 16-6-3 "is not invalid as depriving [appellant] of equal protection of the law." Barnes v. State, supra at 305(1), 260 S.E.2d 40.

2. Appellant enumerates the general grounds, urging that the evidence did not show his delinquency "beyond a reasonable doubt" as required by OCGA § 15-11-33(c).

The victim's testimony showed that an act of sexual intercourse occurred. It was not necessary that the victim's testimony be corroborated in every particular and the corroborating evidence here was sufficient. Long v. State, 189 Ga.App. 131(1), 375 S.E.2d 274 (1988). The evidence further showed that appellant and the victim were not cohabiting as husband and wife and that, due to their age, neither appellant nor the victim could have entered into a marriage contract without parental consent. OCGA § 19-3-2(2). There was no evidence that parental consent had ever been given for appellant and the victim to marry. Accordingly, the evidence was sufficient to authorize the juvenile court, as the trier of fact, to find proof beyond a reasonable doubt that, in violation of OCGA § 16-6-3, appellant had engaged in sexual intercourse with an under-age female who was not his spouse and, thus, had committed a delinquent act. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

3. When not sitting, the part-time juvenile court judge engages in the private practice of criminal law in other courts. For this reason, appellant moved to recuse the juvenile court judge. Appellant's motion was denied after it was heard by another juvenile court judge and the denial of the motion is enumerated as error. Appellant's motion stated no viable grounds for the recusal or disqualification of the juvenile court judge. OCGA § 15-11-3(g). Accordingly, it was properly denied.

Judgment affirmed.

All the Justices concur, except SEARS-COLLINS, J., who concurs in part and dissents in part.

SEARS-COLLINS, Justice, concurring in part and dissenting in part.

I bother to write in this case only because this is a statutory rape case, as opposed to a rape case, and because the appellant who has been tried, adjudicated, and incarcerated was 13 years old when the offense occurred.

This Court has long held that the legislative objective forwarded by Georgia's statutory rape law is to protect the virginity of young females, and to ensure that they are protected from the physical and psychological damage resulting from sexual intercourse. Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 (1979). To reach that objective, the statute subjects all males (but no females) to criminal punishment, regardless of their ages. This historically customary statute embodies many valid and important objectives. Yet I believe that in its present form, Georgia's statutory rape law is blatantly discriminatory and manifestly unfair and is, therefore, unconstitutional.

First, I cannot agree with the majority's resolution, based on Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 (1979), of the equal protection challenge to Georgia's statutory rape law. In Barnes, this court held that the statutory rape law does not violate equal protection guarantees because minor males get the same protection as minor females from the harm that can result from sexual intercourse by the state's child molestation statute, OCGA § 16-6-4 (1988). That, however, is simply not the case. In Barnes this court failed to address the lenient sentencing options provided in the child molestation statute, which are not available in the statutory rape statute, and which I believe lessen the penalties that can be imposed on female offenders and the protection available to young boys under the child molestation statute.

Under the statutory rape statute, conviction mandates imprisonment of "not less than one nor more than 20 years." OCGA § 16-6-3(b). The child molestation statute, on the other hand, expressly provides that a first offender may receive important rehabilitative and redemptive probation "upon the special condition that the defendant undergo a mandatory period of counseling administered by a licensed psychiatrist or licensed psychologist." OCGA § 16-6-4(b). No such provision for probation is included in the statutory rape statute. Application of the two statutes could easily result in a harsher penalty being assessed against a male criminal defendant than the penalty imposed against a similarly situated female defendant.

The differences between the two statutes are significant. There is no doubt that young boys are in as much need of protection from premature sexual relations with adults as are young girls. The idea that our young boys will not suffer from even non-forced sexual relations with adults, but that young girls will, is rooted in the tenet that boys (and men) should be strong, fearless, and "macho," and that sexual experience and sexual prowess are evidence of those traits. Such beliefs are immoral, mistaken, and misguided.

In its report published in 1991, this court's own Commission on Gender Bias in the Judicial System ¹ revealed findings which are both enlightening and disturbing. After holding public hearings and hearing testimony from victims, police, prosecutors, attorneys, and members of the public, the Commission found that gender based stereotyping on the part of those working within the criminal justice system in Georgia results in a tendency to ignore the trauma which may be perpetrated upon a male, especially a male under the age of 14, who has been either pressured or forced to engage in sexual conduct. Nationally, between 1973 and 1987, 197,000 boys reported being raped, and rapes of boys are even more severely underreported than rapes of females. L. Glee, When Boys are Raped (1991). Research also shows that depending on just when the sexual activity took place, how long it lasted, and whether it was violent, sexually promiscuous boys can grow up prone to violent tendencies, drug and alcohol addictions, and severe emotional problems. This suffering and pain, which is today shrouded in shame and in silence, cannot be ignored by a democratic society whose future depends on keeping all of its children strong and healthy in body and soul.

In sum, I believe that Georgia's statutory rape law, as written, violates constitutional equal protection guarantees by reason of the underinclusion of male victims and female perpetrators. In choosing whether to strike the gender-bias from the statute or strike the statute in its entirety, a court's task is to discern what course the legislature would have chosen to follow if it had foreseen the court's conclusion that the statute as written is invalid, in this case, underinclusive. I conclude that the legislature, as revealed by its 1950 action of protecting boys and girls from sex abuse in the child molestation statutes, would opt to gender neutralize the statute. I would, therefore, extend the statute's coverage to those formerly excluded.

Additionally, I believe that the statutory rape statute violates due process by including among the potential offenders young boys involved in consensual sexual relations with girls in their age group. The effect of Georgia's statutory rape law is to create an irrebuttable presumption that a female under the age of 14 is incapable of consenting to sex. See Kurtz, Criminal Offenses and Defenses 536 (1991). Such a presumption is reasonable when applied to a relationship between a young girl and an adult male, especially an adult male in a position of authority or control. However, for the following reasons, I do not think that the application of such a presumption is either reasonable or just when applied to relationships between consenting peers.

An irrebuttable presumption precludes any opportunity for the production of contrary evidence,...