Powell v. State: the Demise of Georgia's Consensual Sodomy Statute - Gregory K. Smith

• Jurisdiction: Georgia,United States
• Citation: Vol. 51 No. 3
• Publication year: 2000
• topic: Constitutional Law,Criminal Law

Powell v. State: The Demise of Georgia's Consensual Sodomy Statute

In Powell v. State,¹ the Supreme Court of Georgia held that section 16-6-2 of the Official Code of Georgia Annotated ("O.C.G.A."),² which criminalizes sodomy, violates the right to privacy guaranteed by the Georgia Constitution.³ The court found that the right to engage in private, unforced, consensual, noncommercial sexual acts is included within the meaning of the Due Process Clause of the Georgia Constitution.⁴

I. Factual Background

The Gwinnett County District Attorney, Daniel J. Porter, charged Anthony San Juan Powell in an indictment with rape and aggravated sodomy. Powell was accused of having sexual intercourse with and engaging in cunnilingus with his wife's seventeen-year-old niece without her consent and against her will. Powell admitted committing these acts; however, he contended that the sexual acts were consensual. Because of his testimony admitting the sexual acts, the Gwinnett Superior Court instructed the jury on the law of sodomy. The jury acquitted Powell of rape and aggravated sodomy but found him guilty of sodomy.⁵

Powell appealed his conviction on two grounds. First, he contended that the trial court erred when it instructed the jury on the law of sodomy sua sponte because that allowed the jury to consider sodomy, which he was not charged with in the indictment. Second, he contended that the statute criminalizing sodomy committed in private by consenting adults was unconstitutional because it violated his right to privacy guaranteed by the Georgia Constitution.⁶

II. Legal Background

In 1784 Georgia adopted the common law of England as the law of Georgia.⁷ Until 1816 sodomy was a crime only in the common law.⁸ Georgia's first sodomy statute was codified in the Penal Code of 1816.⁹ In the 1845 Code, the General Assembly defined sodomy as "the carnal knowledge and connexion against the order of nature by man with man, or in the same unnatural manner with woman."¹⁰ This statute, with the exception of the spelling of "connexion," remained in force until 1968.¹¹ This statute produced a plethora of surprising judicial decisions.

Herring v. State¹² was the first of many decisions interpreting the sodomy statute. The supreme court held that "there is no limitation as to the means by which this crime may be committed."¹³ Thus, the court found that "the abominable crime not fit to be named among Christians" could be committed either per anum (by means of the anus), per os (by means of the mouth), or by any similar means.¹⁴ The supreme court reaffirmed Herring in White v. State.¹⁵ In Jones v. State,¹⁶ the Georgia Court of Appeals reaffirmed Herring and stated that it was '"unwilling to soil the pages of our reports with lengthened discussion of the loathsome subject.' "¹⁷ The court also extended the definition of sodomy to include deviate sexual acts, whether or not supported expressly by the statute (in this case, male to male fellatio).¹⁸ These decisions were unusual because they uncharacteristically read a criminal statute broadly rather than narrowly.¹⁹

The next case of note concerning the sodomy statute was Comer v. State.²⁰ Comer involved cunnilingus, which defendant argued was not encompassed by the sodomy statute.²¹ The court of appeals reaffirmed Herring, White, and Jones and stated that "it follows, as a reasonable, logical, and unescapable deduction," that the sodomy statute should be read broadly to include cunnilingus.²² In dissent Judge Bloodworth stated that the statute, being a criminal statute, must be construed strictly.²³ Though he conceded that sodomy may be committed per anum or per os, he concluded that the statue required penetration of "either end of the alimentary canal" by the male's penis.²⁴ Thus, he found that cunnilingus was not a crime under the statute and that sodomy cannot be "committed under our statute without use of the virile organ of the man."²⁵ Judge Bloodworth suggested that the legislature should amend the statute if it wished cunnilingus to be a crime.²⁶ The legislature did not heed Judge Bloodworth's counsel until 1968.

Though the court of appeals did not overrule Comer, it re-evaluated the position it took in that case in Wharton v. State.²⁷ Relying on Texas authority, the court stated that penetration by the male sex organ was required for a conviction of sodomy.²⁸ The court thus read the statute narrowly. The effect of the decision was to acknowledge that Judge Bloodworth's dissent in Comer was a correct assessment, but the court did not mention Comer in its decision.

The next year, in Thompson v. Aldredge,²⁹ the supreme court was faced with a case involving two women who were convicted of cunnilingus.³⁰ The court found that cunnilingus between two women was not criminalized by the statute: "That the act here alleged to have been committed is just as loathsome when participated in by two women does not justify us in reading into the definition of the crime something which the lawmakers omitted."³¹ The supreme court, following the lead of the court of appeals in Wharton, narrowly interpreted the statute.³² Thus, the court affirmed that sodomy requires the participation of a man.³³

In 1949 the General Assembly revisited the sodomy statute. It reduced the punishment from life in prison to imprisonment from one to ten years (for sodomy committed on a person over sixteen years old) but did not substantively change the definition of the crime.³⁴

In the same year, the court of appeals again addressed the issue of per anum and per os sodomy in Barton v. State.³⁵ Defendant was indicted for "carnal knowledge and connection, against the order of nature, and in an unlawful manner" with another man.³⁶ Defendant demurred on the ground that the indictment did not state in what way and manner defendant had carnal knowledge.³⁷ The court upheld the demurrer.³⁸ The court explained that the history of sodomy laws included only acts committed per anum but that Herring extended that definition to include acts committed per os; therefore, an indictment must specifically describe how the defendant committed the crime.³⁹ In essence the court stated that sodomy has been judicially extended and that the common law crime of sodomy did not include acts committed per os.

In 1963 the supreme court overruled Comer. In Riley v. Garrett,⁴⁰ the court found that a man cannot be punished for a crime that a woman could not be punished for also.⁴¹ Thus, the court found that cunnilingus was not a crime under the sodomy statute.⁴² The court reconciled the seemingly conflicting decisions in Comer and Thompson by expressly adopting Judge Bloodworth's dissent in Comer and holding that the statute must be construed strictly and that sodomy requires penetration by the male sex organ either per anum or per os.⁴³

Following Riley, the General Assembly revised the sodomy statute to read: "A person commits sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another."⁴⁴ The legislature also changed the punishment for sodomy to "imprisonment for not less than one nor more than 20 years."⁴⁵

In Carter v. State,⁴⁶ the court of appeals again addressed the issue of penetration in a case involving cunnilingus. The court conceded that prior cases required penetration by the male sex organ per anum or per os for a sodomy conviction.⁴⁷ However, the court held that the new statute, by its text and plain meaning, did not require penetration.⁴⁸ The court stated, "It does not appear that a jury of reasonable intelligence could construe a sexual act 'involving' the mouth of one person and the sex organs of another as anything other than actual contact."⁴⁹ Thus, cunnilingus was (again?) illegal in Georgia.

The argument that the sodomy statute violates an individual's right to privacy appears to have been raised first in Stover v. State.⁵⁰ In Stover defendant was in a public place when the act of sodomy occurred.⁵¹ Therefore, the court held that defendant did not have standing to raise an issue regarding privacy.⁵²

The privacy argument was again raised in Gordon v. State.⁵³ Defendant contended that the statute did not "differentiate between the sex or marital status of the possible offenders and, therefore, applies equally to homosexual and heterosexual intimate relationships."⁵⁴ The court found that the validity of the statute as applied to the private sexual relations of a married heterosexual couple need not be decided because defendant "failed to show that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity."⁵⁵

In Christensen v. State,⁵⁶ the supreme court finally addressed the privacy issue involved with the sodomy statute. Defendant was convicted of solicitation of sodomy.⁵⁷ Defendant argued that the essential component of solicitation of sodomy was the crime of sodomy and that such crime "infringe[d] upon the privacy rights . . . of adult citizens."⁵⁸ The court observed that Georgia "has long recognized a right of privacy inherent in the due process clause of the Georgia Constitution."⁵⁹

The court in Christensen addressed the privacy issue by stating, "When a privacy interest is implicated, the state must show that the legislation has a 'reasonable relation to a legitimate state purpose.' "⁶⁰ The court stated that the police power of the state includes the power to "enact laws to promote the public health, safety, morals, and welfare of its citizens."⁶¹ The court held that the proscription of sodomy is a legitimate state interest and is in compliance with the police power of the state as upholding the moral welfare of the public.⁶² The court acknowledged that many states have abandoned their sodomy statutes, but in Georgia that would be the responsibility of the people via the legislature.⁶³

Justice Sears delivered a seething dissent in Christensen. She stated that "when the right to privacy is implicated by a state...