Watson v. State

• Decision Date: 14 September 2015
• Docket Number: No. S15G0385.,S15G0385.
• Citation: 297 Ga. 718,777 S.E.2d 677
• Parties: WATSON v. The STATE.
• Court: Georgia Supreme Court

297 Ga. 718

777 S.E.2d 677

WATSON

v.The STATE.

No. S15G0385.

Supreme Court of Georgia.

Sept. 14, 2015.

Noah Howard Pines, Ross & Pines, LLC, Atlanta, for appellant.

Andrew J. Ekonomou, Atlanta, Katie Marie Udy, Asst. Dist. Attys., Woodbine, Jacquelyn Lee Johnson, Dist. Atty., for appellee.

Opinion

HUNSTEIN, Justice.

Appellant Patrick Watson was convicted by a jury on two counts of sexual battery against his daughter, K.P., for acts committed when she was between the ages of 11 and 13. After the Court of Appeals affirmed Watson's convictions, see Watson v. State, 329 Ga.App. 334, 765 S.E.2d 24 (2014), this Court granted certiorari to review the propriety of the trial court's jury charge on sexual battery, to the extent it instructed that a victim under the age of 16 lacks the legal capacity to consent to sexual conduct. We now hold that this particular instruction is improper when given in relation to the offense of sexual battery. Accordingly, the trial court erred in giving the instruction, the Court of Appeals erred in its affirmance thereof, and we reverse the judgment below on this issue.¹

As relevant to the issue presented here, the evidence at trial established that Watson touched victim K.P.'s breasts and public area on several occasions when she was between the ages of 11 and 13. The indictment charged Watson with two counts of child molestation in connection with this conduct, and, in its jury charge, after instructing the jury on the definition of child molestation, the court instructed the jury on sexual battery as a lesser-included offense of child molestation. Following its recitation of the definition of sexual battery, the trial court stated, “And under Georgia law a person under the age of sixteen lacks legal capacity to consent to sexual conduct.” Though Watson's trial counsel objected to the giving of this charge, see OCGA § 17–8–58(a), the objection was overruled. The jury ultimately convicted Watson on the lesser-included offense of sexual battery as to victim K.P.

On appeal, the Court of Appeals held, inter alia, that this jury charge was an accurate statement of the law adjusted to the facts of the case and, thus, was proper. Watson, 329 Ga.App. at 339, 765 S.E.2d 24. In addition, the Court of Appeals declined to consider Watson's argument that eliminating the lack-of-consent element of sexual battery for victims younger than 16 would yield an overbroad statute, viewing such an argument as a constitutional challenge to the statute that was not raised or ruled on below. See Watson, 329 Ga.App. at 340, 765 S.E.2d 24 (citing In re D.H., 283 Ga. 556, 557(3), 663 S.E.2d 139 (2008) (appellate courts of this State “will not pass upon the constitutionality of a statute when the challenge was not directly and properly made in the trial court and distinctly ruled on by the trial court”)).

1. As an initial matter, we disagree with the Court of Appeals' characterization of Watson's overbreadth argument as a constitutional challenge that was waived. As made clear in Watson's appellate brief and at oral argument, Watson does not challenge the constitutionality of the sexual battery statute but simply argues for a construction of the statute that would criminalize a narrower class of conduct than that which is prohibited under the construction adopted by the trial court and the Court of Appeals. Watson's argument that the trial court's construction of the statute would potentially criminalize benign conduct, to support his position favoring a narrower construction of the statute, does not equate to a constitutional challenge on overbreadth grounds. The Court of Appeals thus erred in declining to consider this argument in interpreting the sexual battery statute.

2. The sexual battery statute defines the offense of sexual battery as “intentional[ ] ... physical contact with the intimate parts of the body of another person without the consent of that person.” OCGA § 16–6–22.1(b).² The plain language of this Code section thus prescribes three elements that are required to establish the offense of sexual battery: (1) physical contact with the victim's intimate body parts; (2) intent to have such contact; and (3) lack of consent on the part of the victim. The question presented here is whether the victim's age alone may conclusively establish the lack-of-consent element of sexual battery.

Current Georgia law holds that persons under the age of 16 lack the legal capacity to consent to sexual intercourse, other than with a spouse. OCGA § 16–6–3(a) (defining statutory rape as sexual intercourse with “any person under the age of 16 years and not his or her spouse”); Phagan v. State, 268 Ga. 272, 273, 486 S.E.2d 876 (1997). In prosecutions for forcible rape, we have held that, where the victim was at the time of the alleged crime under the age of consent, the victim's age alone conclusively establishes her lack of consent. Drake v. State, 239 Ga. 232(1), 236 S.E.2d 748 (1977) ; see also State v. Collins, 270 Ga. 42, 43, 508 S.E.2d 390 (1998). We have similarly noted, in the context of a prosecution for sexual assault, that underage victims lack the legal capacity to consent to “sexual contact.” Chase v. State, 285 Ga. 693, 696(2), 681 S.E.2d 116 (2009) ; see also Brown v. State, 268 Ga. 154, 155, 486 S.E.2d 178 (1997) (noting that children lack the capacity to consent to a “sexual act” directed at them). Thus, under current law, a victim under the age of 16 cannot legally consent to sexual intercourse, sexual acts, or other sexual contact, and proof that a victim was younger than age 16 at the time of an alleged offense involving sexual contact—absent any specific statutory language to the contrary—will constitute conclusive proof of the lack-of-consent element of such offense.

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...