Sodomy Laws in Georgia: Is Oral and Anal Sex Legal?

By: Larry Kohn, Criminal Defense Attorney Atlanta and Sex Crimes Lawyer

Over a decade and a half ago, our nation’s highest court declared sodomy laws unconstitutional. This landmark case from a Texas appeal overturned an earlier 1986 case from Georgia, by a 6-3 vote.

The Supreme Court decision in Lawrence was tied to due process of law (Fifth Amendment) and a person’s right to privacy between consenting adults.

Such acts with an underage child can also be charged as sexual assault or (at some ages) statutory rape.

The consensual sodomy case ruled upon by the U.S. Supreme Court was Lawrence v. Texas, 539 U.S. 558 (2003).

Our nation’s highest court had ruled [in an earlier GA sodomy laws case, Bowers v. Hardwick, 478 U.S. 186 (1986)] that, “the Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.”

This rule was applicable even though the Hardwick case involved two willing, receptive partners.

So, vaginal sex was the only "legal" type of sex in 1986. This ruling meant that Georgia justice (at that time) needed the Georgia Bureau of Investigation to oversee what happens in the privacy of citizens’ homes, according to the attorney general! Oral sex and anal sex were crimes in Georgia.

As with most criminal laws in America, a biblical origin existed for such laws, which was often cited as crimes against nature. State lawmakers often invoked the Bible’s story of the sinful cities of Sodom and Gomorrah.

The reality is that sexual intercourse and “activity” is conducted in private, and sodomy has been happening since history was recorded. The Greeks chronicled anal penetration sex between men long before Christ was born.

Prior to the Lawrence v. Texas case, sodomy laws across America (typically defined as being either blow jobs, anal intercourse, or both) remained a crime in many states, even when the acts were performed in private, between two consenting adults.

Controversy remains in Virginia, Georgia, Alabama, Kansas, and other states as legislators seek to reimpose their religious teachings on their voters.

Statistically, since the Lawrence case, prosecutions for acts of anal intercourse or fellatio performed in private, have been rare.

But much like state laws prohibiting a person of color from marrying a white person, sodomy laws have been used to justify and perpetuate discrimination against gay men and women.

The first step to take is hiring an experienced sex offender attorney near me.

Once the Lawrence case was decided, Georgia sex offenders in prison for such crimes could file habeas corpus petitions to be released from custody. Plus, they could be removed from the sex offender registry GA posting in sheriff’s departments across the State of Georgia.

In short, our United States Supreme Court ruled that such acts are legal and protected as rights of privacy.

Georgia jurists are still heavily involved in adjudicating anti-sodomy laws. The 11th Circuit Court of Appeals, based out of Atlanta, recently reversed a District Court ruling [Green v. Georgia, 882 F.3d 978 (2018)] that would have freed Charlton Paul Green, who had pleaded guilty to violating Georgia sodomy laws in 1997.

Originally, he was given a probated sentence. However, Green did not obtain legal counsel before assuming that his sodomy conviction was void after the Lawrence decision. Then, he was twice arrested for failing to register as a sex offender in the county of his residence.

Years later, after hearing about the Lawrence case, Green moved to a new county and did not register as a sex offender in his new county of residence, thinking that the U.S. Supreme Court decision had “cleared” him.

Predictably, in the Bible Belt, news of his new residence relocation in Cherokee County from nearby Pickens County resulted in a simple Georgia sex offender registry search, which showed that he had not complied with a separate Georgia law.

He should have gone back to the public defender or private legal counsel to revisit his old conviction.

The District Court [51 F.Supp.3d 1304] framed the legal issue this way: “[t]he State of Georgia demands that Mr. Green register as a sex offender for this sodomy violation.

Mr. Green failed to do so, and in May 2009, he was convicted in the Superior Court of Cherokee County for failing to register as a sex offender. He now petitions this Court for a writ of habeas corpus, to release him from his sentence for failing to register as a sex offender.”

After being arrested for moving to a new county and not complying with the sex offender registry GA laws, Green asked for a new trial, saying the U.S. Supreme Court’s 2003 ruling had freed him from having to register as a sex offender. The Eleventh Circuit overturned the lower court’s finding of ineffective assistance of counsel.

The current sodomy definition in Georgia depends on several factors that must be determined. The following excerpts from Georgia’s current state sodomy laws on sodomy and aggravated sodomy set forth what is illegal under the current sodomy statute in the Peach State:

O.C.G.A. 16-6-2 (2017)

TITLE: O.C.G.A. Section 16-6-2. Sodomy; aggravated sodomy; medical expenses

(a)

(1) A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.

(2) A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age. The fact that the person allegedly sodomized is the spouse of a defendant shall not be a defense to a charge of aggravated sodomy.

(b)

(1) Except as provided in subsection (d) of this Code section, a person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years and shall be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.

(2) A person convicted of the offense of aggravated sodomy shall be punished by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life. Any person convicted under this Code section of the offense of aggravated sodomy shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.

(c) When evidence relating to an allegation of aggravated sodomy is collected in the course of a medical examination of the person who is the victim of the alleged crime, the Georgia Crime Victims Emergency Fund, as provided for in Chapter 15 of Title 17, shall be financially responsible for the cost of the medical examination to the extent that expense is incurred for the limited purpose of collecting evidence.

(d) If the victim is at least 13 but less than 16 years of age and the person convicted of sodomy is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.

Car sex laws do not exist, separate from Georgia sex laws in general. But, as for the question, “can you get arrested for having sex in your car?” the answer is “unless your car is inside your closed garage at home, YES.”

Because public sex laws are just part of not showing any private “parts” in a public place, oral sodomy sex (very common) and copulation are both going to be a possible source of arrest when others can see you.

GA sex laws are based on keeping sex behind closed doors, and not in a publicly viewable area. Parking decks are public and not private, so don’t think limited traffic means it is okay to take the risk of an embarrassing arrest.

Call GA attorney Larry Kohn at 404-567-5515 for a FREE lawyer consultation. Why not talk to a Georgia Super Lawyer who has also been named to Super Lawyers as an Atlanta criminal defense lawyer multiple times? With a FREE consultation, what are you waiting for?

Georgia sodomy law is one of the crimes in the Peach State that immediately conjures up harsh punishment, for any conviction.

Being convicted of any sex offense will be life-changing by virtue of sex offender registry GA mandates. Sex offender registry laws are both national and state-by-state, with Georgia sex registry laws being among the nation’s toughest.

Any conviction. Being convicted of any sex offense will be life-changing by virtue of sex offender registry GA mandates. Sex offender registry laws are both national and state-by-state, with Georgia sex registry laws being among the nation’s toughest.

Aggravated criminal sodomy brings the potential of a mandatory, devastating prison sentence that (of all sex crimes cases) our state sodomy laws rank very high on the most draconian of punishments, if convicted.

If convicted at trial of aggravated sodomy in GA, the sentencing judge can’t give the defendant the minimum 25-year sentence, and then order only 12 years to serve, with the balance on probation.

The sentence on aggravated sodomy in GA must be a mandatory 25-to-serve or life in prison. In our history in America, and from our English roots, homosexual sex was punishable by death

Very little imagination is needed for anyone to comprehend that a sex crime is a topic for which jury selection can be a nightmare. In a Bible belt state like Georgia, well over half of the jurors will have a visible revulsion to hearing about anal sex.

Our sodomy lawyers in Georgia know that being able to eliminate biased potential jurors can be the key to winning some sodomy cases. For any trial, fighting to assure that ultra conservative jurors won’t be on the jury, since many will equate being accused with being guilty.

The law in Georgia under O.C.G.A. 16-6-2 (a) comprehensively prohibits the crime of sodomy with this language: “A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.”

Notice that the general statutory language for a sodomy crime in GA does not discuss whether male-male or female-female or male-female. Nor does the current wording talk about consenting adults, or any ages of the participants in subsection (a)(1).

The constitutionality of this part of Georgia law is questionable, if the sexual activity occurred between two consenting adults who have their full faculties, and neither of them was assaulted after being too drunk to consent or after being drugged by the other.

However, subsection (b) relating to aggravated sodomy does add the element of force. when he or she commits sodomy with FORCE and AGAINST THE WILL of the other person or when he or she commits sodomy with a person who is less than ten years of age. Like our state’s statutory rape law, children of a certain age are legally deemed to not be able to consent at all, and that age (for this statute) is 10 years old. Plus, other subsections pertain to consenting teen “victims” when an alleged teen perpetrator is the focus of the accusation or indictment.

One Georgia case, Evans v. State (2004) outlined how tough it is to face trial involving young victims (agers 14 and 17) when both alleged victims testified about how the accused used coercive and threatening words promising harm to them or their family members or both.

Plus, mental coercion alone can intimidate and can supply the element of “force.” Brewster v. State (2003). No physical battery nor assault needs to have taken place. The modern-day solicitation of sodomy law applies to making requests to any person under age 18, as found in OCGA 16-6-15.

A person convicted of aggravated sodomy GA (which is one of Georgia’s “seven-deadly -sins” law, which are the most serious of felonies) shall be punished by a life term in prison. In the alternative, the judge can split sentence by requiring no less than 25 years to serve of a life sentence in prison, followed by probation. If ever out of custody, the rest of his or her life will be on probation.

In addition to prison or a fine, a defendant convicted of aggravated sodomy in Georgia is required to register as a sex offender. Georgia’s General Assembly found that the State has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity. Therefore, the State requires sex offenders to register and provide the public notice of the presence of sex offenders.

The consequences of being convicted of aggravated sodomy in Georgia are severe and far-reaching. Specially trained Georgia sex crimes lawyers know what is at stake if a client has a conviction for a felony sex crime. After evaluating all the State’s evidence and witness list, our award-winning attorneys can determine whether the indictment is enough to support a conviction under the Georgia aggravated sodomy law. Our criminal law attorneys have over 77 years of criminal justice experience under our belts.

To try to quash an indictment, various pre-trial motions may be available. For example, if the State can’t establish the child’s age at 10 or younger, then aggravated sodomy may not be maintainable.

Plus, for teen or even pre-teen victims older than age 10 who were young but with whom no force or intimidation by the accused can be proven, this may be a trial defense. Finally, in some modern-day cases, the perpetrator may have been sleep-walking due to the somnambulant effects of drugs like zolpidem (Ambien), Seroquel or other powerful prescribed medications.

Being married to the victim does not allow a coercive spouse to impose his or her will on the unwilling participant by engaging in forced sodomy.

Claiming that no penetration of the victim’s (the other person’s) anus or vagina (with a penis or tongue) is not going to neutralize the criminal charges. This applies to both subsection (a) and (b).

Words that threaten another in a manner that would logically overbear his or her independent will can supply the “force” element. Physically striking or holding a weapon or stating that a weapon would be used is not necessary. Question: Is a sex toy a "weapon?"

If you learn about the possibility of any sodomy or aggravated sodomy charge being investigated by law enforcement, call today on our 24-hour number for a FREE consultation with our law group: 404- 567-5515. After that, say nothing AT ALL until you have a criminal defense attorney from an experienced law firm by your side.

People being accused of any crime naturally want to “explain” their side. Don’t do that, since your words can be a sex crime lawyer’s most problematic evidence. You have the constitutional right to remain silent, so USE IT.