By: Larry Kohn, Sex Crimes Attorney in Atlanta and Georgia Criminal Defense Attorney Since 1998
Georgia Sodomy Law and the Possible Sodomy Penalty
What’s sodomy? Today, if you are facing the sex crime of committing sodomy, the allegations are very serious. Most cases involve accusations of forcible sexual contact, or sex without “consent” (based either on the complaining witness’s age, infirmity or age differential). If convicted, the offender will be placed on the sex offender registry.
Looking back at history, the word “sodomy” involved engaging in sex acts OTHER THAN vaginal sex between a man and woman. This type of sex ensures that human beings reproduce. Georgia law followed biblical teachings until forced to change, in 2003, when Lawrence versus Texas was handed down.
By comparison, this passage from Wikipedia lets you know how much less Puritanical and conservative the United States was compared to other nations. In excess of two hundred years passed before our nation’s highest court acted to de-criminalize this type of sex between those above the age of consent:
In 1786 Pietro Leopoldo of Tuscany, abolishing death penalty for all crimes, became not only the first Western ruler to do so, but also the first ruler to abolish the death penalty for sodomy (which was replaced by prison and hard labor).
In France, it was the French Revolutionary penal code (issued in 1791) which for the first time struck down “sodomy” as a crime, decriminalizing it together with all “victimless-crimes” (sodomy, heresy, witchcraft, blasphemy), according with the concept that if there was no victim, there was no crime. The same principle was held true in the Napoleon Penal Code in 1810, which was imposed on the large part of Europe then ruled by the French Empire and its cognate kings, thus decriminalizing sodomy in most of Continental Europe.
In 1830, Emperor Pedro I of Brazil signed a law into the Imperial Penal Code. It eliminates all references to sodomy. [SOURCE: wikipedia.org/wiki/Sodomy_law]
Like many of the laws in the United States, legislators enacted statutes that followed their respective religions, and the teachings from their scriptures or religious tracts. Worldwide, virtually 100% of all religions have laws that dictate against same sex relationships, with common penalties being felonies with substantial prison time. Plus, in many nations, the death penalty can be imposed for a person convicted of sodomy and any same sex relationships.
Sex History: Tracking America’s Reluctance to Repeal Sodomy Laws
Virtually everyone in America understands the legend of the cities of Sodom and Gomorrah. The word is derived from the name of this first city of sin. To get an idea of various religions’ perspectives about the crime, and its origins, click this link.
Both the book of Genesis and the Torah prohibit sexual intercourse between anyone other than a male husband and female wife. Any sexual act involving the sex organs of one person and the mouth or anus of another was a sex crime.
Georgia law has been forced to be changed after being a major battleground for constitutional change in America. However, full justice has not been achieved in Georgia, even decades after the United States Supreme Court overturned these laws, at least between consenting adults.
The state of Georgia was an early battleground for constitutional challenges to sodomy laws between consenting parties. Georgia’s law against sodomy dated to 1833, and defined sodomy as ”any sexual act involving the sex organs of one person and the mouth or anus of another.” These words sound “neutral” as to those traditional, man and woman couples and others, but enforcement was not being undertaken except against those who engaged in an alternative lifestyle.
The 1986 case of Bowers v. Hardwick, 478 U.S. 186 arose in Georgia, and a 5-4 split of the court barely upheld the now-discredited laws of that time. In fact, national change was recommended in 1961, by the legislative advice panel of the American Law Institute’s Model Penal Code advocated the repeal of sodomy laws, but only the State of Illinois moved quickly to undo sodomy statutes.
To its credit, the 11th Circuit Court of Appeals had reversed the federal district court’s upholding of the conviction in the Bowers vs Hardwick case at the Georgia Supreme Court, yet our nation’s highest court dropped the ball, and reinstated the conviction. Later, in Shahar v. Bowers in 1995, the 11th Circuit did overturn Georgia’s sodomy law.
Finality of a national directive to change our laws only came in 2003, after the 6-3 decision of Lawrence v. Texas overturned all laws criminalizing sex between consenting adults. 539 U.S. 558. This case put an end to laws invading the privacy of consenting adults. Now, sodomy convictions are for non-consensual acts, or those with children of tender years.
In general, sodomy laws across America (not too long ago) totally prohibited non-procreative activities between individuals. So, state governments were basing legislation on religious tenets, and passing laws that barred all sex acts (e.g., anal intercourse) other than vaginal intercourse.
A sodomy statute, though, was almost never enforced against opposite sex partners. You could only engage in sodomy by being with a same sex companion.
Sodomy Definition: How to Define Sodomy in the Peach State
O.C.G.A. 16-6-2 (2010)
TITLE: O.C.G.A. Section 16-6-2. Sodomy; aggravated sodomy; medical expenses
(1) A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.
(2) A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age. The fact that the person allegedly sodomized is the spouse of a defendant shall not be a defense to a charge of aggravated sodomy.
(1) Except as provided in subsection (d) of this Code section, a person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years and shall be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.
(2) A person convicted of the offense of aggravated sodomy shall be punished by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life. Any person convicted under this Code section of the offense of aggravated sodomy shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.
(c) When evidence relating to an allegation of aggravated sodomy is collected in the course of a medical examination of the person who is the victim of the alleged crime, the law enforcement agency investigating the alleged crime shall be financially responsible for the cost of the medical examination to the extent that expense is incurred for the limited purpose of collecting evidence.
(d) If the victim is at least 13 but less than 16 years of age and the person convicted of sodomy is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.
Defending All Georgia Sex Crimes, from Prostitution to Statutory Rape
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