By: Lawrence A. Kohn, Sex Crimes Attorney in Georgia Since 1998
Statutory rape in GA is a highly serious crime. Statutory rape Georgia allegations, however, can be defended on many different legal grounds and defense theories.
In reviewing this highly important topic, many may be unaware that no single set of laws apply in all states. Yet, by discussing how similar crimes in other states (with different state laws) may allow a statutory rape in GA case to be defended may help an accused Georgia offender fully understand what defenses are assertable in the Peach State.
First, criminal defense lawyer Larry Kohn must initially clarify an important point: Romeo and Juliet laws in Georgia are exceptions or affirmative defenses to statutory rape charges rather than being one of the nation’s State laws that can be violated.
When someone is charged with statutory rape, that State’s Romeo and Juliet provisions may offer the accused person a defense. However, another factual defense or an “evidential” shortcoming in the Prosecutor’s evidence on such cases may be what a sex crimes attorney will be pursuing for his or her client.
Below is a comprehensive list of possibly defenses and ‘egal theories assertable in statutory rape cases across United States in various jurisdictions. But the reader has to remember that all state crimes are subject to THAT state’s laws, and knowing the prohibited “too young for sexual activity” laws could save a person from unwittingly spending a substantial number of years behind bars.
One more caveat needs to be stated. This OVERVIEW will not disclose all pertinent information about every state’s laws. So, if facing any type of sex crime, depend on targeted legal advice from a top-rated criminal law specialist in sex crimes who is licensed in that state.
The “Close-in-Age” Exception (a Romeo and Juliet Defense) in Some States
The Romeo and Juliet defense protects individuals close in age from statutory rape prosecutions when both parties are near the age of consent. This affirmative defense typically applies when:
- Both individuals are within a specified age range (commonly 2-4 years apart)
- The alleged victim meets a minimum age threshold (often 14 years old)
- The relationship was consensual
- The defendant was not previously a registered sex offender
The specific age gaps and requirements vary significantly by state. For example, the State of Georgia allows a four-year age difference when the victim is at least 14 but under 16, reducing the offense from a felony to a misdemeanor.
Texas permits a three-year age difference when the victim is at least 14. Pennsylvania also uses a four-year threshold for those aged 13 and older. The measurements are calculated by the two participants’ dates of birth.
The Marriage Exemption
Many states provide a complete defense to statutory rape charges when the parties are legally married. This defense historically existed in most jurisdictions, though recent reforms have limited its application:
- The marriage must be legally valid
- Some states only recognize marriages performed before specific dates (Pennsylvania, for example, applies this to couples married before July 7, 2020)
- Marriages from other states with lower age thresholds may be recognized
- Federal law eliminated this defense in 2022 under the Violence Against Women Reauthorization Act, though similar exceptions persist in military law
Marital exemption statutes have faced significant criticism because such laws can incentivize child marriage, which is often not practically or financially sustainable. Plus, others argue that allowing such laws can allow a child predator to use this defense as legal cover for illegal, predatory behavior.
Mistake of Age Defense
The mistake of age defense allows defendants to argue they held a reasonable, good-faith belief that the alleged victim was above the age of consent. This defense’s availability varies dramatically by jurisdiction:
States Allowing this Defense:
- California recognizes reasonable mistake of age following People v. Hernandez (1964)
- Pennsylvania permits this defense
- Alaska allows the defense
- Arizona recognizes it
- Tennessee has codified mistake of fact defenses
States Rejecting the Defense:
- Georgia explicitly prohibits mistake of age as a defense
- Florida bars ignorance of age as a defense, even when minors intentionally mislead defendants
- Texas does not allow this defense
- Plus, many other jurisdictions follow the traditional strict liability approach
To succeed with this Defense where permitted, Defendants typically must demonstrate:
- The belief was both honest and reasonable
- The minor misrepresented her or his age
- The defendant took reasonable steps to verify the minor’s age
- The minor’s appearance and behavior could have reasonably supported the claimed age of the too young participant
- Some jurisdictions only allow this defense for certain age ranges or for a very limited category of sex offense.
Lack of Evidence/Insufficient Evidence
The prosecution bears the burden of proving every element of statutory rape beyond a reasonable doubt. Defense strategies based on insufficient evidence include:
- Challenging the occurrence of sexual conduct: Arguing that no sexual activity took place
- Questioning corroborating evidence: In some jurisdictions, victim testimony alone may be insufficient without corroboration
- Attacking witness credibility: Challenging inconsistencies in testimony
- Highlighting lack of physical evidence: While not required for conviction, absence of forensic evidence can create reasonable doubt
Georgia requires some corroborating evidence beyond victim testimony alone to support statutory rape convictions.
The “False Accusation” Defense
Defendants may argue they were falsely accused due to various motivations:
- Revenge or retaliation: Personal conflicts motivating false reports
- Material gain: Financial incentives for making accusations
- Custody or divorce leverage: Using allegations to gain advantage in family proceedings
- Regret following consensual encounters: Reporting consensual activity as non-consensual after the fact
- Creating an alibi: False accusations to explain pregnancy or cover other circumstances
- External influence or manipulation: Pressure from family members or authority figures to make accusations
To expose false allegations, Mr. Kohn investigate the accuser’s background, motive, colleagues or friends and credibility to expose false allegations.
The “Mistaken Identity” Defense
When physical evidence is lacking or unreliable, defendants may argue they were misidentified as the perpetrator:
- Presenting alibi evidence showing the defendant was elsewhere
- Using DNA evidence to exclude the defendant
- Demonstrating limited visibility or stressful circumstances affecting identification
- Showing the victim had reason to misidentify the defendant
In one Georgia case, Atkins v. State, 304 Ga. 240 (2018) despite DNA testing proving the defendant was not the father of the alleged victim’s child, prosecutors proceeded with charges, highlighting the challenges defendants face even with exculpatory evidence.
Possible Statute of Limitations Defense
If charges are filed after the applicable statute of limitations has expired, defendants have a complete defense:
- Forcible rape: In Georgia, prosecution must commence within 15 years
- Non-forcible statutory rape: Georgia allows 7 years from the offense
- Cases involving minors: Many states extend limitation periods significantly, sometimes up to 7 years or longer
- DNA exceptions: Many states suspend statutes of limitations when DNA evidence exists until a suspect is identified
Statutes of limitations vary widely by state and the specific offense charged. Some jurisdictions have eliminated statutes of limitations for certain sexual offenses involving children.
Various Types of Constitutional Challenges
Defendants may raise various constitutional defenses challenging the statutes themselves:
Equal Protection Challenges:Gender-based statutory rape laws that only criminalize male conduct or only protect female victims have been challenged as violating the Fourteenth Amendment’s Equal Protection Clause. Courts apply intermediate scrutiny, requiring the state to prove the classification serves important governmental objectives and is substantially related to achieving those objectives.
Vagueness Challenges:The Ohio Supreme Court struck down a statutory rape statute as unconstitutionally vague when applied to sexual conduct between two children under 13, finding it “authorizes and encourages arbitrary and discriminatory enforcement” since each child would be both offender and victim.
Due Process Challenges:Defendants have challenged strict liability statutory rape provisions as violating due process by eliminating the mens rea requirement.
Ex Post Facto Challenges:Retroactive extension of statutes of limitations may violate constitutional prohibitions against ex post facto laws.
Police Misconduct and Procedural Defenses
Evidence obtained through constitutional violations may be suppressed:
- Fourth Amendment violations based on illegal searches and seizures
- Coerced confessions through improperly obtained statements
- Chain of custody issues on forensic samples when problems with evidence collection, swabbing & preservation or handling
- Procedural errors: Defects in arrest, charging, or investigation procedures
No Sexual Conduct Defense (Innocence)
Defendants may simply assert innocence, claiming no sexual conduct occurred:
- Presenting alibi evidence
- Using surveillance footage, GPS data, or digital records
- Calling witnesses to establish the defendant’s whereabouts
- Demonstrating impossibility of the defendant’s presence at the alleged time and place
Context-Specific Defenses
Stress or Duress:While unlikely to result in dismissal, showing the act was committed under great duress or mitigating circumstances may help reduce sentencing.
Consent (Limited Applicability):In statutory rape cases, consent is generally not a valid defense because minors cannot legally consent. However, consent may be relevant for:
- Demonstrating the relationship falls within Romeo and Juliet exceptions
- Showing the alleged victim may have had motive to make false accusations after the defendant rejected their advances
- Mitigating sentencing considerations in some jurisdictions
State-Specific Variations in its Sex Crime Laws
Defense availability depends heavily on state law:
- States with broad Romeo and Juliet protections: Texas, Georgia, Pennsylvania, Alaska, Alabama
- States without close-in-age exceptions: California, Arizona (no gap provision)
- States that allow mistake of age to be asserted as a defense: California, Pennsylvania, Alaska, Arizona
- States prohibiting mistake of age: Georgia, Florida, Texas
Strategic Considerations
Effective statutory rape defense requires:
- Early case evaluation: Assessing limitation periods, constitutional issues, and evidence sufficiency
- Thorough investigation: Gathering alibi evidence, witness statements, and digital records
- Expert testimony: Utilizing forensic experts, DNA analysts, and trauma psychologists
- Pre-trial motions: Filing motions to dismiss based on statute of limitations, suppress illegally obtained evidence, or challenge constitutional violations
- Plea negotiations: Exploring reduced charges, alternative sentencing, or avoiding sex offender registration requirements
Understanding these defenses and their jurisdictional variations is essential for mounting an effective defense against statutory rape charges. Given the severe consequences—including lengthy prison sentences, substantial fines, and mandatory sex offender registration—defendants should immediately consult experienced criminal defense counsel specializing in sex crimes.
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