O.C.G.A. § 16-6-18 (2019)

Annotations

Law reviews. - For article, ‘‘Shotgun Marriage by Operation of Law,’’ see 1 Ga. L. Rev. 183 (1967). For article, ‘‘Misdemeanor Sentencing in Georgia,’’ see 7 Ga.

St. B. J. 8 (2001). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For note, ‘‘Sharpening the Prongs of the Establishment Clause: Applying Stricter Scrutiny to Majority Religions,’’ see 23 Ga. L. Rev. 1085 (1989). For comment on Rehak v. Mathis, 239 Ga. 541, 238 S.E.2d 81 (1977), see 12 Ga. L. Rev. 361 (1978).

JUDICIAL DECISIONS Constitutionality. - Charges that 13-year-old defendant violated the fornication statute, O.C.G.A. § 16-6-18, by having sexual intercourse with defendant’s 17-year-old step-sibling did not violate Georgia’s right to privacy since defendant did not have the legal capacity to decide whether to engage in sexual intercourse. In the Interest of L.A.N., 276 Ga. App. 477, 623 S.E.2d 682 (2005). Crime of fornication necessarily involves idea of consent. While consent in some instances may be procured by force to a certain degree, where the force is used in the inception of the offense it must be at least shown that consent was finally induced thereby. Nephew v. State, 5 Ga. App. 841, 63 S.E. 930 (1909). Fornication is not included in rape. Speer v. State, 60 Ga. 381 (1878). Indictment for seduction will support conviction for fornication. A plea of not guilty to such an indictment puts in issue both offenses. Barton v. State, 53 Ga. App. 207, 185 S.E. 530 (1936). Proof of fornication includes act of unmarried persons. - It is essential to the conviction of a man indicted for forni-

cation for the state to prove that when the alleged offense was committed both he and the woman with whom the criminal intercourse took place were unmarried persons. Hopgood v. State, 76 Ga. App. 240, 45 S.E.2d 715 (1947). Juvenile could be found delinquent based on the juvenile’s commission of the delinquent act of fornication; the fact that consent is not a defense to statutory rape has no impact on whether a juvenile commits a delinquent act under the separate fornication statute by voluntarily having sex when unmarried. In the Interest of N.A., 246 Ga. App. 204, 539 S.E.2d 899 (2000). Consent to sex by children 16 and over. - Right of privacy under Ga. Const. 1983, Art. I, Sec. I, Para. I prohibited the state from prosecuting defendant for fornication under O.C.G.A. § 16-6-18 since defendant and defendant’s love interest, both age 16 and of legal age to consent to sex under O.C.G.A. § 16-6-3(a), engaged in private, unforced, non-commercial sex. In re J.M., 276 Ga. 88, 575 S.E.2d 441 (2003). Civil suit for contracting venereal

disease not barred. - An unmarried adult who engages in consensual sex in violation of O.C.G.A. § 16-6-18 is not precluded from recovering in a civil action for injury suffered as a result of that criminal activity. Long v. Adams, 175 Ga. App. 538, 333 S.E.2d 852 (1985) (damages for partner’s failure to disclose herpes condition). Sexual intercourse is an element of the offense of fornication. Bridges v. Bridges, 197 Ga. App. 608, 398 S.E.2d 860 (1990). When guilty verdict is contrary to evidence. - When an indictment charges unlawful sexual intercourse and alleges that both parties to the transaction were single at the time of the alleged act, the accused is charged with the offense of fornication only, and when the evidence under such an indictment shows that one of the parties to the transaction was married at the time of the alleged act, a verdict of guilty is contrary to the evidence. Hopgood v. State, 76 Ga. App. 240, 45 S.E.2d 715 (1947). Consecutive sentences affirmed. -

Trial court did not err by sentencing the defendant to three consecutive 12-month sentences on probation with the first 12 months to be served on house arrest following the defendant’s guilty plea to the offenses of statutory rape, fornication, and battery because the sentence was within the statutory limits and whether to impose consecutive or concurrent sentences for multiple offenses was within the trial court’s discretion. Osborne v. State, 318 Ga. App. 339, 734 S.E.2d 59 (2012). Merger properly denied. - Trial court did not err in denying the defendant’s request to merge the defendant’s convictions for statutory rape and fornication for the purpose of sentencing because the defendant waived the issue of whether the offenses should have been merged when the defendant knowingly and voluntarily pled guilty to each of the crimes. Osborne v. State, 318 Ga. App. 339, 734 S.E.2d 59 (2012). Cited in Pace v. City of Atlanta, 135 Ga. App. 399, 218 S.E.2d 128 (1975); Fluker v. State, 248 Ga. 290, 282 S.E.2d 112 (1981).

RESEARCH REFERENCES Am. Jur. 2d. - 2 Am. Jur. 2d, Adultery and Fornication, §§ 5, 6. ALR. - Isolated acts of sexual intercourse as constituting criminal offense of adultery or fornication or illicit cohabitation, 74 A.L.R. 1361. Validity of statute making adultery and

fornication criminal offenses, 41 A.L.R.3d 1338. What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.