Timothy Hardy, Eric Perdue and Troy Smith, sophomore students and members of the varsity football team at Morris Brown College, were indicted by the grand jury of Fulton County for the offense of rape. At trial the state presented testimony of the complainant-victim and others tending to establish the following facts.
The prosecutrix, who was also a sophomore at Morris Brown and a majorette, had made a very low grade on an accounting test. Her professor advised her to seek tutoring and she asked Perdue, who had made the highest grade in the class, if he would help her with her work. He agreed, if she would pay him, and they decided that the prosecutrix would come to his dormitory room to study at 7 p.m. on Sunday evening. Gaines Hall, where Perdue roomed, was the “football dorm.” Female visitors were allowed during the visiting hours of 7 p.m. to 10 p.m. in all other dorms. Although there were no rules published in the student handbook or posted in the football dorm against female visitors, there was apparently an understanding *855 on campus that such visits were not encouraged during football season. At the appointed time the prosecutrix went to the main desk at Gaines Hall and requested of the housemother to see Perdue. He was paged and finally located by another student, Darron Odums, and came down from his third floor room to meet the prosecutrix. At that time Perdue’s girlfriend also arrived, but when the prosecutrix explained that she was going to study with Perdue, the girlfriend left. Instead of going up the main stairway inside the building to his room, Perdue led the way and the prosecutrix followed him up an outside, dimly-lit stairway. The assignment for the next day was very long and too complicated for the prosecutrix to understand, so she asked to copy Perdue’s completed work to take back to her room to study on her own; he agreed. While she was copying the work, appellant Smith, Perdue’s roommate, came in the room and clicked the overhead light off and on. Smith and Perdue left the room and came back. Perdue told the prosecutrix he did not want her to pay him money, he wanted something else. Before they could finish the conversation, Smith came back in the room, cut off the lights and threw her on the floor. When she fought off his advances, he threw her on Perdue’s bed. She was “screaming, hollering and calling the Lord,” when Perdue came in with appellant Hardy. Someone put a hand over her mouth, turned the music up loud and Smith, then Perdue, then Hardy raped her, the other two holding her arms and legs while each one had his turn. The prosecutrix dressed in a blue jean skirt, plaid blouse and windbreaker had been wearing curlers in her hair which were loosened and knocked off during the struggle. In tears, she rearranged her clothes and picked up her curlers, leaving the room to find a crowd of football players standing in the hall who jeered and mocked her. Darron Odums, however, offered to walk her home and attempted to calm her. Back in her dorm when her friends and roommates inquired why she was upset and crying, she would only say,“They’re going to pay.” After calming down she finally told the whole story, and the police and security were called and the appellants were arrested. A security officer had heard “a scream” during the time the rape was alleged to have occurred but could not determine where it came from. Perdue’s girlfriend told investigators she found bloody “linen” or a towel on Perdue’s bed when she came to his room shortly after the incident. The prosecutrix was taken to the Rape Crisis Center at Grady Hospital, where the examining physician found spermatazoa and bleeding caused by a three centimeter laceration at the posterior end of her vagina which required two sutures to close. In the doctor’s opinion the injury was “caused by forceful entry or excessive force by the entry of the male sexual organ ...” There were no other cuts or bruises or external signs of injury to the prosecutrix.
*856 The appellants and a number of their teammates and fraternity brothers testified that the prosecutrix was known to be sexually active with a predilection for football players. Perdue swore that he was a regular churchgoer, kept a 3.5 grade point average and was offered football and academic scholarships to at least six colleges. He agreed to help the prosecutrix with her accounting homework if she paid him, but when he asked her on the way up to his room how she was going to pay, she said she had no money “and smiled and said we’ll think of something.” He “started asking her about income statements and classified balance sheets and debits and credits and stuff like that and she didn’t understand none of it.” Smith, his roommate, was in their room lying on his bed reading economics when Hardy came in. Smith then moved to Perdue’s bed and asked the prosecutrix to join him there. She did and they began talking “about having sex.” The prosecutrix then lay back on the bed, Smith pulled off her panties and “began having sex” while Perdue and Hardy looked on “shocked.” They both recovered, however, and decided they would like to have sex with her, too. Perdue then “walked over to her and I unbuttoned my pants and she laid there with her legs open and we began to have sex.” Although Perdue withdrew before ejaculation, he agreed that he was “a pretty big guy all over” and “might have been the young man that caused the vaginal laceration.” Hardy also took his turn with no communication between him and the prosecutrix. The three appellants testified that the prosecutrix then walked from the room indicating no signs of distress, but that when she got out in the hall, a crowd of their friends began “joaning” and berating her about her shameful sexual habits, at which time she burst into tears and ran home. Darron Odums said he accompanied her only because he thought he might get her to come to his room, too.
The trial court instructed the jury as to the elements necessary to constitute rape and further charged, pursuant to request by the state and over objection of the defense, that “should you find the defendants not guilty of rape as I have charged you, you would be authorized to consider under the evidence whether or not they'did at the same time and place commit the lesser offense of simple battery. In that connection, I charge you that the law of this state provides that a person commits simple battery when he either intentionally makes physical contact of an insulting or provoking nature with the person of another or intentionally causes physical harm to another.” 1 *857 After announcing twice that they were hung, the jury finally returned a verdict of guilty of simple battery. The appellants moved for judgment of acquittal notwithstanding the verdict which was denied. Appeal is taken from the jury instruction on simple battery and the overruling of the motion for judgment of acquittal n.o.v.
The appellants contend that while simple battery is normally considered a lesser included offense of the crime of rape, any alleged touching of the complainant here was in every instance a part of the alleged rape or was totally lacking in intent to commit a crime. The appellants’ position is that physical contact is unlawful only if it is without valid consent and causes bodily harm to the person of another, or if the physical contact is of an insulting or provoking nature done without the lawful authority to do so. Thus, it is argued, under the standard set forth in
State v. Stonaker,
There is no question that under the definition of rape in Code Ann. § 26-2001, “against her will” is synonymous with “without her consent.”
Gore v. State,
The purpose of the recently adopted Georgia Rape Shield Statute (Code Ann. § 38-202.1) is to eliminate the philosophy “that women of promiscuous sexual reputation are entitled to less protection under the rape laws than women of chaste reputation.”
Singleton v. State,
Proof of present consent in a rape trial, then, is different from
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proof of consent to any other crime. In other crimes the proffered evidence and the inference it supports must logically relate within a particular factual context. For example, it is well established by decisions of both appellate courts that evidence of general character for violence of the victim, or testimony concerning specific acts against another, is impermissible. E.g.,
Black v. State,
Therefore, in the present case the jury was allowed to scrutinize in intimate detail not just the matter of previous sexual intercourse on the part of the prosecutrix, but her use of birth control, her past dates and boyfriends, and the number and circumstances of her prior sexual experiences.
2
Compare
Parks v. State,
Having been acquitted of rape, the crime the appellants were charged with committing, does the evidence support their conviction
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of simple battery as a lesser included offense? “ ‘ “To warrant conviction of a lesser offense on an indictment or information charging a greater offense, it is essential that the allegations describing the greater offense contain all essential averments relating to the lesser offense or that the greater offense necessarily include [s] all the essential ingredients of the lesser.” ’ ”
Tuggle v. State,
We do not agree with the appellants that the evidence in this case shows rape or nothing, and that it was therefore error to charge on simple battery. Even assuming, as we must, that the prosecutrix invited or welcomed the attentions of the three appellants in the manner in which they described the sexual encounters, the state introduced undisputed evidence that such force was used that it caused a three centimeter laceration of her vagina and profuse bleeding. We think this evidence was sufficient to authorize the jury instructions on simple battery as a lesser crime involved in the main crime charged and the verdict of guilty.
The consent which the jury found to the acts of sex was based on proof of the complainant’s unchaste character. That evidence is immaterial and unsupportive of a finding of consent to the physical harm she suffered during sexual intercourse so as to render the injury a lawful touching as urged by the appellants. We agree that the offense of rape necessarily includes a “physical contact of an insulting or provoking nature” as defined by Code Ann. § 26-1304 (a) and that a finding of consent to sexual intercourse would neutralize any insulting or provoking nature of such contact. However, under Code
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Ann. § 26-1304 (b) a simple battery also occurs when a person “intentionally causes physical harm to another.” There is no question that the prosecutrix suffered physical harm caused by the appellants; whether or not it was intentionally caused was a question of fact for the jury. (For discussion of what acts constitute conformance with an indictment charging that the defendant “did intentionally cause physical harm,” see the progressive appeals in
Mize v. State,
“ ‘ “A person will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” Code Ann. § 26-605. Whether the requisite intent is manifested by the circumstances is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous.’ ”
Riddle v. State,
Judgment affirmed.
Notes
The entire charge was repeated at the request of the jury who informed the court that “after four hours of [closing] argument... they were not very attentive when the law was charged.” The same exception to the instruction on simple battery was again taken.
The record before this court is silent as to whether the requisite in camera hearing was held and contains no order stating what evidence was allowed. From the lack of objections by the state to this evidence, we presume that the correct procedures were followed.