O.C.G.A. § 16-6-15 (2019)

Annotations

Cross references. - Actions for childhood sexual abuse, § 9-3-33.1. Affirmative defense to certain sexual crimes, § 16-3-6.

Law reviews. - For article, ‘‘Misdemeanor Sentencing in Georgia,’’ see 7 Ga. St. B. J. 8 (2001). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 32 (2001).

JUDICIAL DECISIONS Constitutionality. - Solicitation of sodomy is speech which advocates the commission of a crime and is not protected by the constitution. Christensen v. State, 266 Ga. 474, 468 S.E.2d 188 (1996). Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998), which struck down O.C.G.A. § 16-6-2, insofar as it applies to private, non-commercial acts between consenting adults, did not impliedly strike O.C.G.A. § 16-6-15. Howard v. State, 272 Ga. 242, 527 S.E.2d 194 (2000). To the extent the solicitation of sodomy statute, O.C.G.A. § 16-6-5, can be narrowly construed to only punish speech soliciting sodomy that is not protected by the Georgia Constitution’s right to privacy, the solicitation of sodomy statute is constitutional. Watson v. State, 293 Ga. 817, 750 S.E.2d 143 (2013). Instructions did not cause prejudicial error. - Trial court’s jury charge on defendant’s charges of enticing a child for indecent purposes and solicitation of sod-

omy for money with a child under 17, in violation of O.C.G.A. §§ 16-6-5 and 16-6-15, respectively, was not prejudicial to defendant, although the indictment against defendant charged defendant with committing acts in the conjunctive and the jury instructions allowed the jury to convict defendant for committing any of the acts, which were stated in the disjunctive, as proof that the crimes were committed in any of the separate ways or methods alleged in the indictment was sufficient to sustain the convictions. Carolina v. State, 276 Ga. App. 298, 623 S.E.2d 151 (2005). Language used to support conviction. - Term ‘‘blow job’’ is not too vague and lacking in definition to support a conviction of soliciting for sodomy. Anderson v. State, 142 Ga. App. 282, 235 S.E.2d 675 (1977). Evidence sufficient for conviction. - Defendant’s convictions for enticing a child for indecent purposes and solicita-

tion of sodomy for money with a child under 17, in violation of O.C.G.A. §§ 16-6-5 and 16-6-15, respectively, were supported by the evidence, as the defendant invited two young victims to defendant’s home, had one of the victims watch a pornographic videotape and propositioned both of the victims by discussing their sexual history and sexual acts; it was clear that the element of asportation was satisfied when defendant invited the victims to defendant’s home in order to entice the victims to engage in sexual acts. Carolina v. State, 276 Ga. App. 298, 623 S.E.2d 151 (2005). Victim’s testimony was sufficient to sustain the defendant’s conviction for solicitation of sodomy in violation of O.C.G.A. § 16-6-15(a) because the victim testified that the defendant offered to give the victim money for oral sex. Davenport v. State, 316 Ga. App. 234, 729 S.E.2d 442 (2012). Evidence that the victim approached the defendant with an offer regarding oral sex on two occasions, following the defendant’s earlier offer to pay the victim if the victim would allow the defendant to perform oral sex on the victim, and that the victim was 14 years old at the time the enticement occurred was sufficient to support the defendant’s convictions for enticing a child for indecent purposes and

solicitation of sodomy. Tezeno v. State, 343 Ga. App. 623, 808 S.E.2d 64 (2017). Evidence insufficient for conviction. - Although the defendant clearly invited the 17-year-old boy to engage in sexual acts falling within the express language of the sodomy statute, O.C.G.A. § 16-6-5, the evidence was insufficient to convict the defendant of solicitation of sodomy as the defendant never suggested that any encounter occur in a public place; the mere fact that the defendant was a public officer, specifically a police officer, did not render public the defendant’s offer to engage in sex in a private residence; no money or anything of commercial value would be exchanged; the defendant’s conduct did not rise to the level of intimidation or coercion that would give rise to a finding of sexual contact by force; and both parties were legally capable of consenting to sexual contact. Watson v. State, 293 Ga. 817, 750 S.E.2d 143 (2013). Cited in Byous v. State, 121 Ga. App. 654, 175 S.E.2d 106 (1970); Fluker v. State, 248 Ga. 290, 282 S.E.2d 112 (1981); McGee v. State, 165 Ga. App. 423, 299 S.E.2d 573 (1983); Allen v. State, 170 Ga. App. 96, 316 S.E.2d 500 (1984); Verble v. State, 172 Ga. App. 321, 323 S.E.2d 239 (1984); Bostic v. State, 184 Ga. App. 509, 361 S.E.2d 872 (1987); In re Jackel, 275 Ga. 568, 569 S.E.2d 835 (2002).

RESEARCH REFERENCES Am. Jur. 2d. - 70C Am. Jur. 2d, Sodomy, § 53. C.J.S. - 81A C.J.S., Sodomy, § 2. ALR. - Validity and construction of statute or ordinance proscribing solicitation for purposes of prostitution, lewdness, or assignation - modern cases, 77 A.L.R.3d 519.

What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280. Validity of statute making sodomy a criminal offense, 20 A.L.R.4th 1009.