The Georgia Supreme Court has unanimously rejected a constitutional challenge to the state’s law making it a misdemeanor to solicit somebody to engage in anal or oral sex, but at the same time reversed a police officer’s conviction for soliciting a 17-year-old high school student, finding that the statute, narrowly construed to avoid constitutional problems, had not been violated. The case is Watson v. State, 2013 Ga. LEXIS 860 (Oct. 21, 2013).
Georgia’s sodomy statute makes it a felony for anybody to engage in anal or oral sex, regardless of the age of the parties, presence or absence of consent, or the place where the conduct occurs. The solicitation statute makes it a misdemeanor to solicit an act that violates the sodomy statute. In 1986, the U.S. Supreme Court rejected a constitutional challenge to the sodomy statute in Bowers v. Hardwick. In 1998, the Georgia Supreme Court found that a right to privacy in the state constitution required a narrow construction of the sodomy statute, in Powell v. State, 510 S.Ed.2d 18 (1998). Under this limiting construction, private acts of anal or oral sex between consenting adults would not be subject to criminal penalty. In 2000, in Howard v. State, 527 S.E.2d 194, the court held that the natural consequence of the limiting construction of the sodomy statute extended to the solicitation statute. Thus, even though the solicitation statute, by its terms, extended to all solicitation for anal or oral sex, the court avoided constitutional free speech issues by narrowing its application to solicitation of acts that would be illegal under the narrowly construed sodomy statute.
This case arose when an adult police officer, James Watson, attempted to interest a 17-year-old high school student in having sex with him. Watson responded to a police call at a house where the boy was a guest, and gave the boy a ride home in his police car. During the ride, Watson made his first solicitation, and followed up with facebook and MySpace messages and phone conversations. Throughout all of this, Watson made clear that nothing would happen unless the boy wanted it to happen, and his suggestions all related to meeting in private. Feeling “very awkward” about the situation because he is not gay, the boy complained to his tennis coach, and school authorities contacted the police department, resulting in the police recording phone conversations between Watson and the boy in which Watson was very explicit in describing the sexual acts he hoped would take place when they met at Watson’s house.
Watson was indicted for misdemeanor solicitation and felony violation of his police officer oath, convicted by a jury that listened to the recording of the conversations, and sentenced to prison time and probation. The Supreme Court took his appeal directly from the trial court. Watson argued, as he maintained throughout the prosecution, that the solicitation statute violated his constitutional free speech rights.
The Supreme Court rejected Watson’s constitutional argument as to the validity of the statute. Since 2000, when the statute was last upheld, the U.S. Supreme Court decided Lawrence v. Texas, extended 14th Amendment due process protection to private consensual gay sex between adults. But Lawrence goes no further than the Georgia Supreme Court’s prior decision in Powell, and the court adhered to its previously stated view that the state may legitimately enforce the solicitation statute, so long as it is narrowly construed to apply only to solicitation of conduct that would violate the sodomy law, as it was itself narrowly construed in Powell.
That said, it was clear that Watson did not violate the statute as narrowly construed. All of his solicitations were verbal, were not coercive, reiterated that it was up to the boy whether anything would happen, and referred to private places for meeting and having sex. The age of consent for sex in Georgia is 16, so the boy was over the age of consent. The court rejected the argument that the situation in which Watson made his initial solicitation took the case out of the consensual sphere. “Though the repeated suggestion that [the boy] owed Watson some thing in exchange for the car ride home was certainly inappropriate, particularly as directed from a uniformed, on-duty police officer to a 17-year-old boy, we do not find that such conduct rises to the level of intimidation or coercion that would give rise to a finding of sexual contact by force.” Although the boy testified that Watson’s repeated solicitations made him feel “very awkward,” he did not testify that he felt threatened or compelled to do anything against his will. “Moreover, [the boy] actually declined Watson’s overture, after which the parties had no further contact until [the boy] contacted Watson while in the presence of law enforcement. And the mere fact that Watson occupied a position of authority with respect to [the boy] is not sufficient to show ‘force’ in this context.”
Having conclude that the solicitation conviction must be reversed, the court also found that the oath conviction must fall, since it was premised on Watson having violated a Georgia law, which he had not.Tags: age of consent, Georgia, Georgia Supreme Court, sodomy law, solicitation law, solicitation of sodomy, Watson v. State