RAPE AND SEXUAL BATTERY CHARGES IN GEORGIA

Under Georgia law, the charge of rape (O.C.G.A. § 16-6-1) involves allegations that a male’s sex organ penetrates the sex organ of a female forcibly and against her will or the female is 9 years old or younger. Statutory rape (O.C.G.A. § 16-6-3), on the other hand, occurs when a person has sexual intercourse with someone under the age of 16.

A person can be charged with sexual battery (O.C.G.A. § 16-6-22.1) in Georgia if the person intentionally touches the intimate parts of another without that person’s consent. Aggravated sexual battery charges (O.C.G.A. § 16-6-22.2) involve allegations that a person intentionally penetrates the sexual organ or anus of another person with a foreign object without that person’s consent.

Read about our firm’s success in Georgia criminal cases.

What usually happens in a Georgia criminal case? watch this video.

Want to know how we win appeals in Georgia criminal cases? Watch this video.

We have successfully represented clients in serious criminal cases across the United States. Our firm has offices in Atlanta GA and Brunswick GA, and we frequently travel to other courts across the state to represent people in serious criminal cases.

A person can be charged with rape under very narrow circumstances. The three essential elements of a rape charge the government must prove beyond a reasonable doubt are as follows:

1. Penetration of a female’s sex organ,
2. By a male’s sex organ, and
3. The penetration was done either:
   1. Forcibly and against the female’s will; or
   2. The female is under 10 years of age.

Each of these elements require specific types of proof. Penetration of the female sex organ by the male sex organ is referred to in the statute as “carnal knowledge.” Penetration means the male penis entered the female’s sex organ, no matter how slight or minimal that entrance may be. It is not required that the penis entered the female’s vagina or ruptures her hymen; entering the anterior or front of the female sex organ (known as the vulva or labia) is sufficient proof to show penetration occurred for purposes of the statute. Force means the use of physical force, threats of death or physical bodily harm, or mental coercion. The victim is not required to “fight back” to show the element of force. Lack of resistance brought on by fear is still considered force. If the accused continues penetration after the victim has told him, “no”, “stop”, “don’t do this” or other similar words or phrases, that is sufficient to prove force. These words may also be sufficient to prove that the penetration was against the female’s will, which simply means without her consent. If the victim was under 10 years old at the time of the event, force and lack of consent are presumed and no separate proof is required.

It is important to note that the evidence or proof required to be charged with rape can be very limited or minimal. A female’s testimony that she was raped by a man and a detailed description of what, when and where it happened is enough to bring charges. Physical evidence, corroboration by a third party or DNA is not required to bring charges. Another challenge in defending against a rape allegation is what are known as rape shield laws. These laws oftentimes limit the type of evidence that the defense can introduce to rebut or cast doubt on the victim’s testimony about being raped. There are limited exceptions to these rules but generally speaking, evidence about the sexual history of the victim cannot be introduced.

Punishment if convicted of rape is severe. Punishment can range from the death penalty in the most severe cases, prison for life without the possibility of parole, prison for life, or a split sentence of at least 25 years followed by probation for life. Being sentenced to 25 years or more is a true mandatory minimum. This means that the court has no authority to shorten any part of the 25-year prison sentence. Furthermore, while in prison there is no way to reduce the sentence below 25 years. For most crimes, a person can get days off their sentence or otherwise reduce their time in prison for good behavior, participating in work release, or living in halfway houses for a period, among other programs. None of these programs are available to those convicted of rape. Furthermore, the first 25 years of the sentence cannot be reduced by being released on parole. If a person is sentenced to life imprisonment, they must serve at least 30 years before being eligible for parole. If and when a person is released from prison, they will also be required to register as a sex offender.

A statutory rape charge is very different from a rape charge. A person can be charged with statutory rape if he or she has sexual intercourse with another person who is under 16 years of age. Force is not required for conviction and in most cases, usually the sex is consensual. However, that is not a defense. It is also not a defense that the accused genuinely believed the alleged victim was 16 or older, even if the victim lied and told the accused he or she was at least 16. All that matters is that the minor was in fact under 16 and the accused was over 16 at the time of intercourse. However, there must be some corroborating evidence other than the victim’s testimony to be convicted.

The punishment for a statutory rape conviction varies depending on the age of the accused and the age of the victim. If the accused is 20 years old or younger, the punishment is 1 to 20 years imprisonment. If the accused is 21 or older, he can be sentenced to 10 to 20 years imprisonment. In either case, the accused must also serve at least 1 year on probation and register as a sex offender. If the alleged victim is at least 14 but less than 16, the accused is 18 years old or younger, and the accused is no more than 4 years older than the victim, the accused will be sentenced for a misdemeanor rather than a felony.

A person can be charged with sexual battery (O.C.G.A. § 16-6-22.1) if they touch the intimate parts of another without the other person’s permission. There are 3 essential elements of sexual battery that the state must prove:

1. Intentional physical contact,
2. The physical contact was made to another’s genital area, groin, anus, inner thighs, or buttocks of a male or female or the breasts of a female (i.e., their “intimate parts”); and
3. The contact was made without the consent of that person.

Physical injury is not required to be charged with sexual battery. It is also not required that there be skin on skin contact, meaning touching someone’s intimate parts over their clothing can still result in sexual battery charges. It is important to note that the type of touching the sexual battery statute makes illegal is touching the surface of someone’s intimate parts. If something is inserted into the victim’s intimate parts, the accused can be charged with aggravated sexual battery (discussed below).

If convicted for a first offense of sexual battery and the victim is 16 years or older, the accused will be punished for a misdemeanor. However, if the victim is under 16, the accused will be charged with a felony and may spend 1 to 5 years in prison. If a person is found guilty of a second or subsequent offense of sexual battery, they will be charged with a felony and can be punished by 1 to 5 years in prison. Additionally, the person will have to serve at least 1 year on probation and be required to register as a sex offender.

Aggravated sexual battery charges (O.C.G.A. § 16-6-22.2) are much more severe than sexual battery charges. Oftentimes, the act that escalates sexual battery charges to aggravated sexual battery charges is small. There are 4 essential elements of aggravated sexual battery that the state must prove:

1. Penetration,
2. Of the sexual organ or anus of another person,
3. Intentionally, and
4. Without the consent of that person.

In this context, a foreign object means anything other than the sexual organ of a person, such as fingers or some other object. Full penetration is not required and even the slightest penetration will suffice for purposes of the statute. Because of this, the line between sexual battery and aggravated sexual battery is oftentimes extremely thin. For example, if a person’s fingers touch the surface or area around the female sex organ without the female’s consent, that would be considered sexual battery. But if the person even slightly enters the opening of the female sex organ with their fingers, that would be considered aggravated sexual battery. In this example, instead of facing misdemeanor charges, the person would be facing severe felony charges with a punishment up to life imprisonment. 

As the above example illustrates, the punishment for aggravated sexual battery is much more substantial than sexual battery. If convicted of aggravated sexual battery, a person will be sentenced to imprisonment for life or a split sentence of 25 years to life followed by probation for life after release from prison. Similar to rape charges, the mandatory minimum of 25 years cannot be reduced by the court or by way of parole. The person will also be required to register as a sex offender if and when they are released from prison. 

There are a variety of defenses against rape, sexual battery, and aggravated sexual battery charges. A few common defenses that may apply are:

1. The accused has an alibi. If the accused can prove they were somewhere else when the alleged victim was raped or sexually assaulted, they can use that evidence as an alibi to defeat the allegations and charges.
2. The interaction or sexual conduct was consensual. Consent is one of the most common defenses. All three charges require proof that either the alleged victim did not consent to the sexual touching or, in the context of rape, the intercourse was against her will. The defense can use the alleged victim’s own actions or statements to try to cast doubt on whether the victim actually did consent or there was no way the accused could have known the victim didn’t consent due to his/her words or actions.
3. The accused’s actions were not intentional. This defense comes up most often when sexual battery is the allegation. The statute requires proof that the contact with another’s intimate areas was intentional, not accidental. For example, a person is at a very crowded bar or concert and, while trying to get through the crowd, unintentionally brushes up against or touches a woman’s breast. The accused may be able to defend against sexual battery charges the woman brings by stating it was an accident and resulted from him being pushed around while trying to move through the crowd.
4. There was no penetration. For rape and aggravated sexual battery charges, proof of penetration of the female sex organ (rape) or the sex organ or anus of a person (aggravated sexual battery) is required to be convicted. If there is no proof of penetration, the accused cannot be convicted.
5. In a rape case, there was no force used. Both force and lack of consent are required to be proven in a rape case. Proof of one without the other is not enough to be convicted of rape charges. While proof of active resistance or fighting back by the alleged victim is not required, there must be some other evidence the victim was forced to have sexual intercourse. If, for example, neither the male nor female said a word to each other before or during sexual intercourse or no violence was used to induce the woman into having sex, the defense may be able to these (lack of) actions to prove the man did not force the woman to have sex.

Unfortunately, there are not really any defenses to statutory rape charges. If the accused is 16 years or older and the victim is under 16, that is all that is required to bring statutory rape charges. It is no defense that the accused did not know the age of the victim or thought the victim was at least 16 years old. The only defense is if there is no corroborating evidence or testimony to support the victim’s allegations at trial.

Our criminal trial attorneys have won several serious rape and sexual battery cases. In some cases, we are able to build a strong defense that convinces the lead detective or prosecutor to not charge or dismiss the case before it ever gets to a courtroom.

If you or someone you know has been charged with rape or any type of sexual battery in Georgia, contact us to see if we may be able to help.