Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, July 28, 2009

Georgia teacher may raise consensual sex defense to sex assault charge

Chase v. State, No. S09G0139 (Ga. June 15, 2009), is an interesting case from the Georgia Supreme Court. The Court held a defendant teacher charged with sexually assaulting a student who had reached the age of consent was entitled to raise the defense that their sexual encounter was consensual.

A female teacher became romantically involved with a female student. The relationship culminated in a sexual encounter when the student was 16, the age of consent in Georgia. When the student’s mother learned of the relationship, she reported it to the police, who arrested Chase and charged her with sexual assault of a person enrolled in school. Under a state statute, “A probation or parole officer or other custodian or supervisor of another person referred to in this Code section commits sexual assault when he or she engages in sexual contact with another person ... who is enrolled in a school ... and such actor has supervisory or disciplinary authority over such other person.”

The trial court barred the teacher from raising consent as a defense to the charge brought under this statute. The court convicted her and sentenced her to 10 years in prison and 5 years of probation. The Georgia Court of Appeals affirmed.

The Georgia Supreme Court reversed, finding that “the plain language of the statute does not in any way indicate that the General Assembly intended to remove consent as a defense to a charge of violating subsection (b)” of the state statute. While acknowledging that the General Assembly had eliminated consent as a defense to three crimes under subsection (c) of the same statute, the high court rejected the lower courts’ interpretation that the elimination of this defense applied also to prosecutions brought under subsection (b). The court also rejected the prosecutor’s argument that the conviction should be upheld on public policy grounds because of the state’s “compelling interest in protecting children and the vulnerable status of students involved in secondary education programs.” While applauding the prosecutor’s “passion for protecting school-age children,” the court concluded that accepting this argument would constitute legislating “by judicial fiat, and to do so ex post facto to boot.” Moreover, to accept the argument that the consent defense is unavailable to charges brought under subsection (b) could lead to absurd, unjust, and contradictory results, the court found, such as the conviction of a 30-year-old law school professor who engaged in a fully consensual sexual encounter with a 50-year-old law school student.

Thus, the Court treated prosecutions under this statute different from prosecutions for statutory rape.

Mitchell H. Rubinstein

Criminal Law, Education Law | Permalink

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There seems to be a double standard in America as to when a child is a child and when he or she is an adult. In many instances teens & preteens are judged as adults on the judgments they made, but in other cases they are judged simply the fact that they are under age. Some of your listens state that a teen or preteen mind is not develop enough to make correct decision, but this is never the case when they are charged with a crime. I don’t in anyway believe that it is correct behavior to have a relationship with in under age person by an adult under any circumstances, but as long as we allow them to be held in the middle of the legal system as to when a child is a child!!!

Bob Jordan
Alexandria, LA

Posted by: Bob Jordan | Nov 24, 2009 3:30:23 PM

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