By: Larry Kohn, Sex Crimes Lawyer (in Atlanta and other local cities) and an award-winning Georgia Criminal Defense Attorney Since 1998
What’s sodomy? Today, if you are facing the sex crime of committing sodomy, the allegations are very serious. Most cases involve accusations of forcible sexual contact, or sex without “consent” (based either on the complaining witness’s age, infirmity, or age differential). If convicted, the offender will be placed on the GCIC in the state of GA and the NCIC (the federal sex offender registry).
Looking back at history, the word “sodomy” involved engaging in sex acts OTHER THAN vaginal sex between a man and woman. This type of sex ensures that human beings reproduce. Georgia law followed biblical teachings until forced to change, in 2003, when Lawrence versus Texas was handed down.
By comparison, this passage from Wikipedia lets you know how much less Puritanical and conservative the United States was compared to other nations. In excess of two hundred years passed before our nation’s highest court acted to de-criminalize this type of sex between those above the age of consent:
In 1786 Pietro Leopoldo of Tuscany, abolishing death penalty for all crimes, became not only the first Western ruler to do so, but also the first ruler to abolish the death penalty for sodomy (which was replaced by prison and hard labor).
In France, it was the French Revolutionary penal code (issued in 1791) which for the first time struck down “sodomy” as a crime, decriminalizing it together with all “victimless crimes” (sodomy, heresy, witchcraft, blasphemy), according with the concept that if there was no victim, there was no crime. The same principle was held true in the Napoleon Penal Code in 1810, which was imposed on the large part of Europe then ruled by the French Empire and its cognate kings, thus decriminalizing sodomy in most of Continental Europe.
In 1830, Emperor Pedro I of Brazil signed a law into the Imperial Penal Code. It eliminates all references to sodomy. [SOURCE: wikipedia.org/wiki/Sodomy law]
Like many of the laws in the United States, legislators enacted statutes that followed their respective religions, and the teachings from their scriptures or religious tracts. Worldwide, virtually 100% of all religions have laws that dictate against same-sex relationships, with common penalties being felonies with substantial prison time.
Plus, in many nations, the death penalty can be imposed for a person convicted of sodomy and any same sex relationships. Significantly, in January of 2023, Pope Francis was the first to proclaim in a major news broadcast that homosexuality is a sin and not a crime, in a broadcast that has been needed for decades, if not centuries.
Virtually everyone in America understands the legend of the cities of Sodom and Gomorrah. The word is derived from the name of this first city of sin. To get an idea of various religions’ perspectives about the crime, and its origins, click this link.
Both the book of Genesis and the Torah prohibit sexual intercourse between anyone other than a male husband and female wife. Any sexual act involving the sex organs of one person and the mouth or anus of another was a sex crime.
The state of Georgia was an early battleground for constitutional challenges to sodomy laws between consenting parties. Georgia’s law against sodomy dated to 1833, and defined sodomy as ”any sexual act involving the sex organs of one person and the mouth or anus of another.” These words sound “neutral” as to those traditional, man and woman couples and others, but enforcement was not being undertaken except against those who engaged in an alternative lifestyle.
Georgia law has been forced to be changed after being a major battleground for constitutional change in America. However, full justice has not been achieved in Georgia, even decades after the United States Supreme Court overturned these laws, at least between consenting adults.
The 1986 case of Bowers v. Hardwick, 478 U.S. 186 arose in Georgia, and a 5-4 split of the court barely upheld the now-discredited laws of that time. In fact, national change was recommended in 1961, by the legislative advice panel of the American Law Institute’s Model Penal Code advocated the repeal of sodomy laws, but only the State of Illinois moved quickly to undo sodomy statutes.
To its credit, the 11th Circuit Court of Appeals had reversed the federal district court’s upholding of the conviction in the Bowers vs Hardwick case at the Georgia Supreme Court, yet our nation’s highest court dropped the ball, and reinstated the conviction. Later, in Shahar v. Bowers in 1995, the 11th Circuit did overturn Georgia’s sodomy https://www.georgiacriminaldefense.com/blog/age-of-consent-in-ga-in-sex-crimes-statutory-rape-law.
Finality of a national directive to change our laws only came in 2003, after the 6-3 decision of Lawrence v. Texas overturned all laws criminalizing sex between consenting adults. 539 U.S. 558. This case put an end to laws invading the privacy of consenting adults. Now, sodomy convictions are for non-consensual acts, or those with children of tender years.
In general, sodomy laws across America (not too long ago) totally prohibited non-procreative activities between individuals. So, state governments were basing legislation on religious tenets, and passing laws that barred all sex acts (e.g., anal intercourse) other than vaginal intercourse.
A sodomy statute, though, was almost never enforced against opposite sex partners. You could only engage in sodomy by being with a same sex companion. As will be seen below, in 2023 forcible acts are crimes, and certain young people cannot consent to having sex, in the State of Georgia, so these will be criminal acts.
O.C.G.A. 16-6-2 (2021)
TITLE: O.C.G.A. Section 16 6 2. Sodomy; aggravated sodomy; medical expenses
Contact sex crimes attorney Larry Kohn at (404) 567-5515 for a FREE lawyer consultation. Not all sex offender lawyers near me handle these challenging and complex cases.
Why not talk to a Georgia Super Lawyer in criminal defense, who is also part of a 3-person legal team that has been named to Best Law Firms in America by U.S. News & World Report since 2009? Look for a nearby office in the metro Atlanta area or set up a Zoom meeting with Mr. Kohn.