Jury Charge on Aggravated Sexual Battery Leads to Reversal

The trial court instructed the jury that a person commits the offense of aggravated sexual battery when he intentionally penetrates with a foreign object the sexual organ of another person without the consent of that person. The trial court further charged that “considerations of consent and force are irrelevant in aggravated sexual battery cases against children under 16 years of age, for children under the age of 16 years are legally incapable of consenting to illicit sexual acts.”

Although this charge was a correct statement of the law at the time it was given, the Georgia Supreme Court subsequently 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.”

In Watson, the Supreme Court explained that, because a conviction for sexual battery requires only physical contact with the victim’s intimate body parts – and not sexual contact – to dispense with the lack-of-consent element for underage victims would result in “[criminalizing] a wide range of apparently innocent conduct.”

The Supreme Court reversed Watson’s conviction for sexual battery, holding that “[b]ecause the erroneous jury instruction effectively relieved the State of its burden to prove an essential element of the crime, the instruction cannot be said to have been harmless.”

The Court of Appeals held that the Watson decision also applied to an aggravated sexual battery charge. The Court held that, because the defendant’s case was “in the appellate pipeline at the time Watson was decided, the Watson holding governs our analysis.”

As a result, the Court reversed Duncan’s convictions for aggravated sexual battery.