In the areas of criminal law and procedure, there are easy topics and ones that are somewhat uncomfortable to talk about. Obviously, the area of sex offenses is the most difficult to discuss. That is probably why I rarely write columns on the subject.
However, there is one sex offense law that I have always believed is very important for the public to understand because it can affect children, teenagers and adults. It is the law on statutory rape.
When it comes to sex offenses in Georgia, the law on statutory rape is probably the most misunderstood. From the beginning, when you think of the word “rape,” a forcible sexual encounter comes to mind. However, under the statutory rape provision, force is not required or even mentioned.
In Georgia, a person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years who is not his or her spouse.
It does not matter if the person under the age of 16 consents to the act. Under our law, a person under 16 does not have the legal capacity to consent to sex.
It also does not matter if the underage person lies about their age. Statutory rape is a strict liability criminal offense. Actual knowledge of the victim’s age is not a requirement for a conviction. It is also not a legal defense. There are many people sitting in prisons throughout the country who will tell you, “but she said that she was (17, 18, etc.) years old.”
There are also some rather hefty consequences for a conviction for statutory rape. A person convicted of the offense of statutory rape shall be punished by imprisonment for not less than one nor more than 20 years; provided, however, that if the person so convicted is 21 years of age or older, such person shall be punished by imprisonment for not less than 10 nor more than 20 years.
Also, a conviction for people 21 and over will trigger certain sex offender sentencing provisions which provide for mandatory prison time. In other words, the 10-year mandatory minimum sentence cannot be probated.
There is an exception to this sentencing format when the judge can deviate from the mandatory minimum. This can happen when (1) the defendant does not have a prior conviction for a sexual offense, (2) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense, (3), the judge has not found evidence of a relevant similar transaction, (4) the victim did not suffer any intentional physical harm during the commission of the offense, (5) the offense did not involve the transportation of the victim, and (6) the victim was not physically restrained during the commission of the offense.
Additionally, there is a section in the statutory rape law sometimes called the “Romeo and Juliet scenario.” This applies if the victim is at least 14 but less than 16 years of age and the person convicted of statutory rape is 18 years of age or younger and is no more than four years older than the victim. Under these circumstances, the person would be guilty of a misdemeanor with no mandatory minimum sentence.
As you can see, the law on statutory rape is very clear and very harsh under some circumstances. In these cases, the focus is almost always on the behavior and alleged acts of the accused. That is the main point that I hope I have made.
When a person makes a poor decision that exposes them to prosecution under the statutory rape law, it affects not only the defendant and victim. It significantly affects the families of all involved.
Swindle is a local attorney at law.