THE STATE v. COLLINS
S98G0496
Supreme Court of Georgia
September 21, 1998; Reconsideration Denied October 26, 1998
270 Ga. 42 | 508 S.E.2d 390
FLETCHER, Presiding Justice.
Aсcordingly, we reverse the Court of Appeals’ holding that the trial court properly precluded Zielinski from using the transcript of the July 30 meeting to impeach Castleberry.
Judgment reversed. All the Justices concur.
DECIDED SEPTEMBER 21, 1998 —
RECONSIDERATION DENIED OCTOBER 26, 1998.
Vincent R. Lauria, Bondurant, Mixson & Elmore, M. Jerome Elmore, Frank M. Lowrey IV, for appellant.
Arrington & Hollowell, Gary W. Diamond, Joni C. Hamilton, Mark W. Wortham, for appellees.
FLETCHER, Presiding Justice.
A jury convicted William Perry Collins of rape, statutory rape, and incest involving a 12-year-old girl. The court of appeals affirmed the convictions of statutory rape and incest, but reversed the rape conviction on the grounds that the state failed to show that the defendant used force.1 We grantеd the writ of certiorari to consider whether the element of force may be presumed as a matter of law to obtain a rape conviction when the victim is a minor. Adhering to our decision in Drake v. State,2 we hold that the state must prove the element of force to obtain a conviction for forcible rape of a victim under the age of consent. Therefore, we affirm.
In enacting a new criminal code in 1968, this state adopted the common-law definition of rape.3
Under the influence of the Model Penal Code, this court has judicially interpreted the remaining terms, “forcibly” and “against her
In that case, we reasoned that presuming force from the victim‘s age in all forcible rape cases would, as a practical matter, eliminate the crime of statutory rape. Instead, we concluded that the element of force was supplied by the nine-year-old child‘s fear that Drake would beat her or her mother if she resisted.6
Since our decision in Drake, we have at least three times stated that sexual acts directed against a child are forcible and against the will as a matter of law. In Cooper v. State,7 we held that the state did not have to show that a defendant used physical force against a five-year-old child or the child resisted to prove force in an aggravated sodomy case. In Richardson v. State,8 a case involving incest and sodomy, we concluded that a stepfather‘s five-year pattern of sexual exploitation against his teenage stepdaughter was forcible, as a matter of law, based on her age and his position of authority in the family. Finally, in Brown v. State,9 we rejected the state‘s contention that child molestation was not a forcible felony. Quoting our decision in Cooper, we stated: “Because children do not have the capacity to give consent to or resist a sexual act directed at them, such acts ‘are, in law, forcible and against the will’ of a child.”10
We granted certiorari in this case to determine whether, as a dissenting judge on the court of appeals asserts, our opinion in Drake is not “good law” in forcible rape cases because our decisions in Cooper, Brown, and Richardson have negated its holding.11 Although there are legitimate arguments for reconsidering our decision in Drake, we choose to reaffirm its holding that the state must prove the element of force as a factual matter in forcible rape cases rather than presuming force as a matter of law based on the victim‘s age.
First, we consider the rationale given in Drake still to be persua-
Second, the crime of rape is unlike any other crime. As the drafters of the Model Penal Code explained:
Rape “is the only form of violent criminal assault in which the physical act accomplished by the offender . . . is an act which may, under other circumstances, be desirable to the victim.” This unique feature [requires distinguishing] between true aggression and desired intimacy. The difficulty of drawing this line is compounded by the fact that there often will be no witness to the event other than the participants and that their perceptions may change over time.13
Due to these peculiarities, rape cases have too often focused on the aсtions of the victim rather than the misconduct of the suspect. Unlike other sexual offenses, rape historically has required corroboration,14 victims have had to show that they physically resisted with all their strength to prove lack of consent,15 and defendants have presented evidence on the prior sexual conduct of the victims.16 Fortunately these evidentiary problems have been addressed, thus allowing rape prosecutions to properly concentrate on the acts of sexual violence by the defendant against the victim. Nevertheless, the uniqueness of the crime justifies treаting it differently from related sexual offenses.
Third, the quantum of evidence to prove force against a child is
Finally, establishing a single rule of law in all forcible rape cases involving underage victims is problematic. If we were to presume that force is shown every time the victim is below the legal age of consent, the same rule would apply to the child entering kindergarten and the sexually active high school student. This single treatment not only ignores the wide variety of factual situations in rape cases, but also runs counter to the trend in the criminal law to create “meаningful grading distinctions among the different forms of the offense.”23
Yet, this case points out a troubling conflict between the way state law deals with forcible rape and other sexual offenses. At common law, rape included consensual relations with a girl under ten years of age.24 “They are plainly incapable of giving any kind of meaningful consent to intercourse and manifestly inappropriate objects of sexual gratification.”25 As the legal age of consent has increased, however, it has become necessary in rape cases to distinguish between different categories of underаge girls. For that reason, this Court in Drake abandoned the presumption that a rape was forcible based solely on the fact that a victim was under the age of consent.
Judgment affirmed. All the Justices concur, except Hunstein, J., who dissents.
HINES, Justice, concurring.
I write separately to explain my decision to join in the majority opinion. While I agree with the dissent that Drake v. State, 239 Ga. 232 (236 SE2d 748) (1977), represents a substantial departure from prior precedent, legislative changes to
The legislature has provided gradients of punishment for statutory rape according to the age of the perpetrator. When the person so convicted is twenty-one years of age or оlder, the person is to be punished by imprisonment for not less than ten nor more than twenty years. When the person is twenty years old or less the sentence may be as little as one year. Further, if the statutory rape victim is fourteen or fifteen years of age and the person convicted is no more than three years older than the victim, then the person will be guilty of only a misdemeanor.
Moreover, unlike forcible rape, statutory rape is gender neutral. Therefore, presuming force as a matter of law based on the victim‘s age could result in disparatе treatment dependent on the gender of the perpetrator. A young male statutory rapist of a 14 or 15-year-old victim could be convicted and alternatively sentenced for forcible rape while a young female statutory rapist of a similarly-aged victim could be punished only for a misdemeanor.
HUNSTEIN, Justice, dissenting.
The majority has chosen to follow the holding in Drake v. State, 239 Ga. 232 (236 SE2d 748) (1977). I do not believe Drake constitutes sound law for the reasons set forth herein and would reject it to hold instead that as a matter of law, sexual intercourse with a female under the age of 16 is both forcible and against the victim‘s will. Accordingly, I must dissent to the majority‘s opinion.
The first reason why I would reject Drake is because it represents an unjustifiable and unsupported break with Georgia case law precedent. To convict a male of rape, the State must prove three essential elements: that the defendant had (1) carnal knowledge of a female (2) forcibly and (3) against her will.
This break with well-established precedent was deеmed necessary in order for the Drake court to create a judicial distinction between rape and statutory rape,
This gives rise to the next reasons why I would reject Drake. The break Drake created with established precedent renders its holding unsound because it thwarts the Legislature‘s acknowledged goal of protecting the children of this State and because it creates a judicial distinction between rape and statutory rape that is not consistent with the legislative intent behind the enactment of the statutory rape statute. I turn first to Drake‘s failure to protect children, a problem that is so critical that it troubles the majority itself. The problem is simply stated: Drake requires the State to prove that the defendant used force even when the victim is under ten years of age (implicitly rejecting case law to the contrary, see footnote 30, supra) and expressly refuses to include infants, toddlers and young children among those helpless victims against whom the use of force to accomplish sexual intercourse is presumed. Since Drake also limits the principle of “constructive force,” i.e., the force necessary to accomplish penetration, only to those helpless victims who are adults, id. at 234-235, when the helpless victim is a child Drake requires the State to adduce evidence to show that the defendant used some type of force other than the penetration into the child‘s sex organ in order to prove this essential element. In situations where the victim is a child too young to comprehend or articulate the events which led to the rape, the State faces an evidentiary standard that can be insurmountable in order to satisfy Drake‘s requirement that force be proved by evidence other than the force used for the penetration itself. Drake‘s requirement also confounds the State in those cases where the young victim has been rendered psychologically incapable of dissenting to intercourse as a result of her prior sexual abuse by a third party. In practical terms, it will be extremely difficult for the State to obtain rape convictions for males who assault very young or very abused children. Rather than construing the law in a manner
Next, Drake is contrary to the legislative intent behind the enactment of the statutory rape statute. Drake justifies its holding on the basis that it was necessary in order to distinguish rape from statutory rape. While Drake does indeed manufacture a judicial distinction between those two offenses, the problem is that Drake‘s distinction runs contrary to statutory construction principles and furthermore creates a distinction other than the one intended by the Legislature. The holding in Drake is based on the rationale that the distinction between rape and statutory rape is eliminated if the presumption of both force and lack of consent is applied and that only by severing the “forcible” element from the “against her will” presumption can a proper distinction be maintained. Drake violates established statutory construction principles by assuming that the Legislature, when it enacted the statutory rape statute in 1918, acted without the knowledge that Georgia case law had for 120 years recognized the presumption of force and lack of consent with underage victims. See Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1 (3) (178 SE2d 868) (1970) (all statutes presumed to be enacted with full knowledge of existing law, including case law). Based on this improperly-assumed legislative ignorance, Drake then rejects prior case law to differentiate rape from statutory rape on the basis of force. But Drake was only attempting to resolve a conceptual conflict that created no actual confusion in the law. Consider the law without Drake: a male who has sexual intercourse with an underage femalе knows in every instance that he is committing rape. If there is evidence that the female possessed the ability to give meaningful consent and consented willingly, then it is within the discretion of the prosecutor to charge the male with statutory rape, but the law is clear that consent or no consent, sex with an underage female is rape. See, e.g., Wright, supra, 184 Ga. at 66 (4). There is no conflict between rape and statutory rape because the Legislature created a distinction which this Court has expressly and repeatedly recognized: the statutory rape statute “was intended to apply only to casеs where the act of intercourse is accomplished with the actual consent or acquiescence of the female, and is to be treated as rape merely because the female is under the age of consent as therein fixed. [Cits.]” Id. at 67. See also Strickland v. State, 207 Ga. 284 (1) (61 SE2d 118) (1950); Swink v. State, 225 Ga. 717, 718 (2) (171 SE2d 304) (1969); Houston, supra, 186 Ga. at 143; Griffith v. State, 176 Ga. 547 (1) (168 SE 235) (1933). Although Drake itself notes that “statutory rape is not really ‘rape’ at
There is another related but equally unpersuasive argument made in support of Drake: the idea is that because statutory rape, unlike rapе, still requires evidence of corroboration, Drake‘s holding that the State must adduce evidence of force has the beneficial effect of discouraging the State from indicting a defendant on the “easier-to-prove” rape charge. Quite aside from the insulting assumption on which this argument is based, the actual and detrimental effect of Drake is that the State will have no choice but to indict a child rapist for statutory rape rather than forcible rape in those instances when proof of force can only be provided by testimony by the victim and the rapist‘s victim is an infant or an inarticulate toddlеr or in situations where force cannot be established because the child victim had been so psychologically damaged by prior abuse that she passively submitted to the sex act. This condemnation of Drake is not based on some exercise in hypothetical reasoning but rather on the actual status of criminal law in Georgia today: only the holding in Drake can explain the numerous “statutory” rape convictions received by defendants who had sexual intercourse with children under the age of ten. See, e.g., Peinado v. State, 223 Ga. App. 271 (477 SE2d 408) (1996) (victims were four and five years old); Walker v. State, 214 Ga. App. 777 (449 SE2d 322) (1994) (victim was six); Gordon v. State, 210 Ga. App. 224 (435 SE2d 742) (1993) (victim was seven); Dupree v. State, 206 Ga. App. 4 (424 SE2d 316) (1992) (victim was eight); Andrews v. State, 200 Ga. App. 47 (406 SE2d 801) (1991) (victim was five); Neese v. State, 183 Ga. App. 773 (360 SE2d 1) (1987) (victim was four).
It is true that Drake has been on the books since 1977 and the Legislature has taken no action in regard to its holding. Hоwever, given that this very Court has ignored Drake‘s holding, it is not surprising that the Legislature has felt no particular need to correct the error that case represents. Less than ten years after Drake was rendered, this Court began issuing opinions recognizing that lack of consent and force are presumed when sexual acts are committed on underage victims. See Richardson v. State, 256 Ga. 746 (2) (353 SE2d 342) (1987) (upholding conviction for incest and sodomy on basis that sexual acts directed at children “are, in law, forcible and against the will” of the child); Cooper v. State, 256 Ga. 631 (352 SE2d 382) (1987) (stating same principle in case upholding conviction for aggravated sodomy); Brown v. State, 268 Ga. 154, 155 (486 SE2d 178) (1997) (stating same principlе in case holding that child molestation is a forcible felony for purposes of
Contrary to the majority‘s statement, Cooper cannot be distinguished on the basis that it has “no strict liability counterpart.”
The error committed by the Court in Drake can be explained very simply: Drake‘s reasoning was so focused on resolving a clever argument raised by the defendant that the Court failed to question the validity of the premise behind that argument. Without looking to the case law or the legislative intent, Drake accepted the presumption that the “against her will” element is “automаtically shown by [the victim‘s] age,” id. at 233, yet without due consideration deviated from established law by rejecting the force element this irrebuttable presumption supplies due to the closely intertwined nature of these
Drake does not constitute sound law because of its dire evidentiary problems, its unsupported rejection of established Georgia precedent, its fallacious reasoning, its construction of statutory law contrary to the Legislature‘s intent, and its abandonment in subsequent opinions of this Court. Most importantly, Drake does not constitute sound law because it hurts children rather than protects them. In short, there is no valid reason for following Drake and every reason to reject it. Accordingly, I cannot join the majority‘s opinion which adheres to and pеrpetuates the errors in Drake. Because I would hold that sexual acts directed to a child under the age of 16 are, in law, forcible and against the victim‘s will, Cooper, supra at 631 (2), and because the evidence adduced by the State established that Collins’ stepdaughter was 12 years old at the time he engaged in sexual intercourse with her, I would reverse the Court of Appeals and affirm the judgment entered on Collins’ rape conviction.
DECIDED OCTOBER 26, 1998.
J. Thomas Morgan, District Attorney, Lee A. Mangone, Robert M. Coker, Assistant District Attorneys, for appellant.
Kendal D. Silas, for appellee.