In Watson v. State, the Supreme Court of Georgia overturned the defendant’s conviction for solicitation of sodomy, finding that the evidence was not sufficient to support it.
The defendant was an officer with the City of Nashville Police Department. He responded to a dog attack call and that is where he met the alleged victim who was a 17 year-old boy. According to the boy, Watson gave him a ride home and insinuated that he should get “something to repay for the ride,” grabbing at his genitals and pulling down on his pants as he did so. Later, Watson sent him multiple messages via text, Facebook and MySpace suggesting that he and the boy get together to “have a little fun if u know what I mean.” The boy reported the communications to a tennis coach at the school who contacted law enforcement. In the presence of a law enforcement officer, the boy called Watson, who proposed that the two meet. In a second telephone conversation, Watson explicitly proposed and discussed acts of sodomy, and stated repeatedly that it was up to the boy what would happen, and that he did not have to do anything he did not want to do.
Watson was subsequently charged with solicitation of sodomy, and challenged the validity of the statute on the grounds that it violated his freedom of speech and that it was constitutionally void for vagueness. He also alleged that the evidence was not sufficient to support his conviction.
To support a conviction for solicitation of sodomy, Georgia law requires that a person “solicits another to perform or submit to an act of sodomy.” The Georgia Supreme Court has held that a statute will not be facially invalid if it is construed so as to avoid criminalizing protected speech. The Court has also previously examined the constitutionality of the sodomy statute, holding that in order to withstand a constitutional challenge, the statute must be interpreted so as not to criminalize “private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.”
Thus, the Court found that under this narrow construction, the statute only punishes those who solicit acts of sodomy not protected by the Georgia Constitution. Because the statute was readily subject to an interpretation which criminalized “only such language as creates a clear and present danger of a felony being committed,” the Court upheld the statute’s validity.
The Court also rejected the defendant’s contention that adopting a narrow construction made the statute void for vagueness. The Court held that the crime of soliciting sodomy was defined with sufficient precision so that a person of ordinary intelligence had fair warning of what specific conduct is forbidden.
Nevertheless, the Court found that the evidence was insufficient to convict the defendant for solicitation of sodomy. The Court held that the State failed to prove that the proposed acts of sodomy were not constitutionally protected as there was no suggestion that they were to take place in public, in exchange for money, by force, or with an individual who could not legally consent—since in Georgia, a person may legally consent to sex at the age of 16.
As a result, Watson’s conviction for solicitation of sodomy was reversed.
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