In Croft v. State, the Georgia Court of Appeals reversed the defendant’s aggravated sexual battery conviction finding that the instructions to the jury relieved the State of its burden to prove that the alleged act was committed without the consent of the child.
The Defendant was accused of molesting his 15-year-old niece and he was indicted on several counts of child molestation, aggravated sexual battery and other sexual offenses.
At the conclusion of the trial, the jury was instructed that “a child under the age of 16 is incapable of consenting [to sexual acts] as a matter of law.” Although this charge was a correct statement of the law at the time it was given, the Georgia Supreme Court held in Watson v. State that a sexual battery conviction requires “actual proof of the victim’s lack of consent, regardless of the victim’s age.” The Court of Appeals has since held that the Watson decision also applies to an aggravated sexual battery charge.
Since the defense did not object to the jury instruction at trial, the Court of Appeals reviewed the charge under the plain error standard of review. In order to constitute plain error, the Court must determine (1) whether the charge was erroneous, (2) whether the error was obvious, and (3) whether the erroneous instruction likely affected the outcome of the proceeding.
The Court noted that the question of whether the error was obvious is determined by the law at the time of the appeal. So, the fact that this was a correct jury instruction at the time of trial is not fatal to the analysis.
In applying the plain error analysis, the Court concluded that because the instruction relieved the State of proving an essential element of the offense of aggravated sexual battery, the error substantially affected the fairness of the proceedings and thus required reversal.
As a result, the defendant’s conviction for aggravated sexual battery was reversed and the case was remanded for a new trial on that count.