Consent Element Must Now be Proven in Child Sexual Battery Cases

Sexual battery is defined as intentional physical contact with the “intimate parts” of another person without consent. Intimate parts generally include the genital areas, buttocks and breasts. Under Georgia law, a person under the age of 16 cannot consent to sexual acts. Thus, lack of consent would not need to be proven in a case involving alleged sexual acts with a child under 16.

The Court noted, however, that the sexual battery statute does not require “sexual conduct” but merely physical contact with the intimate parts of another. So, the fact that a child cannot consent to sexual acts does not mean that the child cannot consent to physical contact with his or her intimate body parts. It pointed out that, to hold otherwise, the offense of sexual battery (a felony when it involves a child under 16) could encompass many innocent types of contact occurring on athletic fields, playgrounds and by doctors during physical exams.

As a result, the Court construed the statute to require actual proof that the contact was without consent regardless of the alleged victim’s age. Therefore, the Court held that the jury instruction that suggested that a child cannot consent to sexual conduct was misleading and improper in the context of an alleged sexual battery charge. Moreover, the Court found that such an instruction relieved the State from proving an essential element of the offense.