Powell v. State , 270 Ga. 327 ( 1998 )

Benham, Chief Justice.

Anthony San Juan Powell was charged in an indictment with rape and aggravated sodomy in connection with sexual conduct involving him and his wife’s 17-year-old niece in Powell’s apartment. The niece testified that appellant had sexual intercourse with her and engaged in an act of cunnilingus without her consent and against her will. Powell testified and admitted he performed the acts with the consent of the complainant. In light of Powell’s testimony, the trial court included in its jury charge instructions on the law of sodomy. The jury acquitted Powell of the rape and aggravated sodomy charges and found him guilty of sodomy, thereby establishing that the State did not prove beyond a reasonable doubt that the act was committed “with force and against the will” of the niece. See OCGA § 16-6-2 (a). Powell brings this appeal contending the statute criminalizing acts of sodomy committed by adults without force in private is an unconstitutional intrusion on the right of privacy guaranteed him by the Georgia Constitution. Powell also contends that the trial court erred when it offered the jury the opportunity to consider the unindicted charge of sodomy by sua sporite instructing the jury on the law of sodomy.

1. In keeping with the well-established principle that this Court will not decide a constitutional question if the appeal can be decided upon other grounds (Bd. of Tax Assessors v. Tom’s Foods, 264 Ga. 309, 310 (444 SE2d 771) (1994)), we first address the non-constitutional issues raised by the appeal. The first issue is the sufficiency of the evidence. OCGA § 16-6-2 (a) defines sodomy as the performance of or submission to “any sexual act involving the sex organs of one person and the mouth or anus of another.” Appellant’s admission at trial that he placed his mouth upon the genitalia of his wife’s niece, as well as the niece’s testimony similarly describing appellant’s conduct, constitutes sufficient evidence to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant committed sodomy. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Carter v. State, 122 Ga. App. 21 (4) (176 SE2d 238) (1970), overruled on other grounds in Hines v. State, 173 Ga. App. 657 (2) (327 SE2d 786) (1985).

2. Appellant next contends that the trial court erred when, without request by the State or appellant, it instructed the jury on the law of sodomy and permitted the factfinder to return a verdict on that included charge.

In State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976), this Court set forth rules “to clarify for the trial courts what must be charged and what may be charged and what need not be charged in the area of lesser included crimes in criminal trials.” The second rule stated that the trial court could, “of [its] own volition and in [its] discretion, charge on a lesser crime of that included in the indictment and accusation.” Id.; Rodriguez v. State, 211 Ga. App. 256 (2) (439 SE2d 510) (1993). Thus, when the evidence authorizes a charge on an offense included in the offense for which the defendant is being tried, the trial court is authorized to instruct the jury on the included offense sua sponte. Alford v. State, 200 Ga. App. 483, 484 (408 SE2d 497) (1991). Sodomy is an offense included in the crime of aggravated sodomy (Stover v. State, 256 Ga. 515 (2) (350 SE2d 577) (1986)), and the evidence summarized in Division 1 authorized a charge on the law of sodomy as an included offense. Accordingly, the trial court acted within the Stonaker framework when it exercised its discretion and instructed the jury on the included offense of sodomy.

3. Lastly, we address appellant’s constitutional challenge to OCGA § 16-6-2 (a). In so doing, we are mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation “manifestly infringes upon a constitutional provision or violates the rights of the people. . . . [Cit.]” Miller v. State, 266 Ga. 850 (2) (472 SE2d 74) (1996). Appellant contends that the statute criminalizing intimate sexual acts performed by adults in private and without force impermissibly infringes upon the right of privacy guaranteed all Georgia citizens by the Georgia Constitution.¹

The right of privacy has a long and distinguished history in Georgia. In 1905, this Court expressly recognized that Georgia citizens have a “liberty of privacy” guaranteed by the Georgia constitutional provision which declares that no person shall be deprived of liberty except by due process of law. Pavesich v. New England Life Ins. Co., 122 Ga. 190, 197 (50 SE 68) (1905). The Pavesich decision constituted the first time any court of last resort in this country recognized the right of privacy (Katz, The History of the Georgia Bill of Rights, 3 GSU L. Rev. 83, 118 (1986); Gouldman-Taber Pontiac v. Zerbst, 213 Ga. 682 (100 SE2d 881) (1957)), making this Court a pioneer in the realm of the right of privacy. Bodrey v. Cape, 120 Ga. App. 859, 866 (172 SE2d 643) (1969). See also Cox Broadcasting Corp. v. Cohn, 231 Ga. 60 (200 SE2d 127) (1973), rev’d 420 U. S. 469 (95 SC 1029, 43 LE2d 328) (1975), where this Court proudly noted that the right of privacy “was birthed by this court” in Pavesich. Since that time, the Georgia courts have developed a rich appellate jurisprudence in the right of privacy which recognizes the right of privacy as a fundamental constitutional right, “having a value so essential to individual liberty in our society that [its] infringement merits careful scrutiny by the courts.” Ambles v. State, 259 Ga. 406 (2) (b) (383 SE2d 555) (1989).

In Pavesich, the Court found the right of privacy to be “ancient law,” with “its foundation in the instincts of nature [,]” derived from “the Roman’s conception of justice” and natural law, making it immutable and absolute. Id. at 194. The Court described the liberty interest derived from natural law as “embrac[ing] the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common good.” Id. at 195. “Liberty” includes “the right to live as one will, so long as that will does not interfere with the rights of another or of the public” (id. at 196), and the individual is “entitled to a liberty of choice as to his manner of life, and neither an individual nor the public has the right to arbitrarily take away from him his liberty.” Id. at 197. The Pavesich Court further recognized that the “right of personal liberty” also embraces “[t]he right to withdraw from the public gaze at such times as a person may see fit, when his presence in public is not demanded by any rule of law. . . .” Id. Stated succinctly, the Court ringingly endorsed the “right ‘to be let alone’ so long as [one] was not interfering with the rights of other individuals or of the public.” Id.²

In the ensuing years since Pavesich was decided and Georgia’s right of privacy recognized, the Georgia appellate courts have expounded on the right of privacy, describing it as protection for the individual from unnecessary public scrutiny (Athens Observer v. Anderson, 245 Ga. 63 (263 SE2d 128) (1980)); as the right of the individual “to be free from . . . the publicizing of one’s private affairs with which the public has no legitimate concern” (Gouldman-Taber Pontiac v. Zerbst, supra, 213 Ga. at 683); “the right to define one’s circle of intimacy” (Macon-Bibb County Water &c. Auth. v. Reynolds, 165 Ga. App. 348, 350 (299 SE2d 594) (1983)); and the right “to be free of unwarranted interference by the public about matters [with] which the public is not necessarily concerned, or to be protected from any wrongful intrusion into an individual’s private life which would outrage ... a person of ordinary sensibilities.” Georgia Power Co. v. Busbin, 149 Ga. App. 274 (6) (254 SE2d 146) (1979). This Court has determined that a citizen’s right of privacy is strong enough to withstand a variety of attempts by the State to intrude in the citizen’s life. In Zant v. Prevatte, 248 Ga. 832 (286 SE2d 715) (1982), the Court ruled that the State’s assertion of a duty to protect a prisoner’s health and its interest in preserving human life did not amount to the compelling state interest which could override a sane state prisoner’s refusal to eat or submit to medical treatment for the effects of starvation. In State of Georgia v. McAfee, 259 Ga. 579 (385 SE2d 651) (1989), the Court again ruled that a citizen’s constitutional right of privacy and liberty under which he refused medical treatment was not outweighed by any interest the State might have in the preservation of life. In Harris v. Cox Enterprises, 256 Ga. 299, 302 (348 SE2d 448) (1986), Georgia’s strong public policy in favor of open government was required to bend in favor of the individual’s right of privacy when matters about which the public had no legitimate concern were at issue. It is clear from the right of privacy appellate jurisprudence which emanates from Pavesich that the “right to be let alone” guaranteed by the Georgia Constitution is far more extensive that the right of privacy protected by the U. S. Constitution, which protects only those matters “deeply rooted in this Nation’s history and tradition” or which are “implicit in the concept of ordered liberty. . . .” Bowers v. Hardwick, 478 U. S. 186, 191-192 (106 SC 2841, 92 LE2d 140) (1986).³

While Georgia citizens’ right to privacy is far-reaching, that is not to say that the individual’s right to privacy is without limitation. The Pavesich court recognized that the right could be waived by the individual (122 Ga. at 199); could be subsumed when the individual was required to “perform public duties . . .” (id. at 196), and had to yield “in some particulars ... to the right of speech and of the press.” Id. at 204. See also Cox v. Brazo, 165 Ga. App. 888 (303 SE2d 71) (1983) (individual has no right of privacy in information published by another when individual had publicized the information); Cabaniss v. Hipsley, 114 Ga. App. 367 (151 SE2d 496) (1966) (exotic dancer has no right of privacy in a photo which she had permitted others to use for publicity purposes); Cummings v. Walsh Constr. Co., 561 FSupp. 872 (S.D. Ga. 1983) (under Georgia law, a supervisor does not violate a woman’s right of privacy by telling co-workers of their affair when the woman had told other co-workers of the relationship). Nor will an individual’s right of privacy serve as the basis for liability against one who publishes facts which are a matter of public record (Reece v. Grissom, 154 Ga. App. 194 (267 SE2d 839) (1980)), or against one who publishes photographs of the subject matter of a public investigation. Waters v. Fleetwood, 212 Ga. 161 (91 SE2d 344) (1956). See also Tucker v. News Pub. Co., 197 Ga. App. 85 (1) (397 SE2d 499) (1990) (publication of information connected with a matter of public interest or a public investigation does not violate the right of privacy). Through the appeals of defendants convicted of sexual assault who have asserted the constitutional right of privacy on appeal, we have ruled that a defendant may not successfully assert a privacy right when the acts are committed: in a public place (Stover v. State, supra, 256 Ga. 515 (1)); in exchange for money (Ray v. State, 259 Ga. 868 (3) (389 SE2d 326) (1990)); or with those legally incapable of consenting to sexual acts. Id.; Richardson v. State, 256 Ga. 746 (2) (353 SE2d 342) (1987).⁴

Today, we are faced with whether the constitutional right of privacy screens from governmental interference a non-commercial sexual act that occurs without force in a private home between persons legally capable of consenting to the act. While Pavesich and its progeny do not set out the full scope of the right of privacy in connection with sexual behavior, it is clear that unforced sexual behavior conducted in private between adults is covered by the principles espoused in Pavesich since such behavior between adults in private is recognized as a private matter by “[a]ny person whose intellect is in a normal condition. . . .” Pavesich, supra at 194. Adults who “withdraw from the public gaze” (id. at 196) to engage in private, unforced sexual behavior are exercising a right “embraced within the right of personal liberty.” Id. We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than unforced, private, adult sexual activity. See Gryczan v. State, 942 P2d 112 (Mont. 1997); Campbell v. Sundquist, 926 SW2d 250 (Tn. App. 1996); State v. Morales, 826 SW2d 201 (Tex. App. 1992), rev’d on other grounds, 869 SW2d 941 (Tex. 1994). We conclude that such activity is at the heart of the Georgia Constitution’s protection of the right of privacy.

Having determined that appellant’s behavior falls within the area protected by the right of privacy, we next examine whether the government’s infringement upon that right is constitutionally sanctioned. As judicial consideration of the right to privacy has developed, this Court has concluded that the right of privacy is a fundamental right (Ambles v. State, supra, 259 Ga. 406 (b)) and that a government-imposed limitation on the right to privacy will pass constitutional muster if the limitation is shown to serve a compelling state interest and to be narrowly tailored to effectuate only that compelling interest. Phagan v. State, 268 Ga. 272 (1) (486 SE2d 876) (1997); Zant v. Prevatte, supra, 248 Ga. at 833-834. But see Christensen v. State, 266 Ga. 474 (2) (a) (468 SE2d 188) (1996), where the Court’s plurality opinion employed the “legitimate state interest” yardstick to measure the State’s limitation on the defendant’s asserted right of privacy.⁵ Implicit in our decisions curtailing the assertion of a right to privacy in sexual assault cases involving sexual activity taking place in public, performed with those legally incapable of giving consent, performed in exchange for money, or performed with force and against the will of a participant, is the determination that the State has a role in shielding the public from inadvertent exposure to the intimacies of others, in protecting minors and others legally incapable of consent from sexual abuse, and in preventing people from being forced to submit to sex acts against their will. The State fulfills its role in preventing sexual assaults and shielding and protecting the public from sexual acts by the enactment of criminal statutes prohibiting such conduct: OCGA § 16-6-1 (rape); § 16-6-2 (a) (aggravated sodomy); § 16-6-3 (statutory rape); § 16-6-4 (child molestation and aggravated child molestation); § 16-6-5 (enticing a child for indecent purposes); § 16-6-5.1 (sexual assault of prisoners, the institutionalized, and the patients of psychotherapists); § 16-6-6 (bestiality); § 16-6-7 (sexual assault of a dead human being); § 16-6-8 (public indecency); §§ 16-6-9 — 16-6-12 (prostitution, pimping, pandering); § 16-6-15 (solicitation of sodomy); § 16-6-16 (masturbation for hire); § 16-6-22 (incest); §§ 16-6-22.1 and 16-6-22.2 (sexual battery and aggravated sexual battery), and by the vigorous enforcement of those laws through the arrest and prosecution of offenders. In light of the existence of these statutes, the sodomy statute’s raison d’etre can only be to regulate the private sexual conduct of consenting adults, something which Georgians’ right of privacy puts beyond the bounds of government regulation.

Citing Christensen, supra, 266 Ga. 474, the State reminds us that the plurality decision therein held that the proscription against sodomy was a valid exercise of the State’s police power in furtherance of the public’s moral welfare, and that the Georgia Constitution did not deny the General Assembly the right to prohibit such conduct. “Police power” is the governing authority’s ability to legislate for the protection of the citizens’ lives, health, and property, and to preserve good order and public morals. Hayes v. Howell, 251 Ga. 580 (2) (b) (308 SE2d 170) (1983); Ward v. State, 188 Ga. App. 372 (1) (373 SE2d 65) (1988). “To justify the State in thus interposing its authority in behalf of the public, it must appear, first that the interests of the public generally . . . require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.” Lawton v. Steele, 152 U. S. 133, 137 (14 SC 499, 38 LE 385) (1894). Stated another way, the legislation must serve a public purpose and the means adopted to achieve the purpose must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon the persons regulated. Cannon v. Coweta County, 260 Ga. 56 (2) (389 SE2d 329) (1990). In recent years, legislative bodies in Georgia have exercised the “police power” to combat the negative effects of the combination of alcohol and nude dancing (Goldrush II v. City of Marietta, 267 Ga. 683 (482 SE2d 347) (1997)); to limit land usage through zoning restrictions (Cannon v. Coweta County, supra, 260 Ga. 56); to regulate the health professions (Foster v. Ga. Bd. of Chiropractic Exam., 257 Ga. 409 (14) (359 SE2d 877) (1987)); and to impose reasonable regulations on the establishment and operation of cemeteries (Arlington Cemetery Corp. v. Bindig, 212 Ga. 698 (2) (95 SE2d 378) (1956)). That the legislative body has determined that it is properly exercising its police powers “is not final or conclusive, but is subject to the supervision of the courts.” Lawton v. Steele, supra, 152 U. S. at 137. Thus, the suggestion that OCGA § 16-6-2 is a valid exercise of the police power requires us to consider whether it benefits the public generally without unduly oppressing the individual. Since, as determined earlier, the only possible purpose for the statute is to regulate the private conduct of consenting adults, the public gains no benefit, and the individual is unduly oppressed by the invasion of the right to privacy. Consequently, we must conclude that the legislation exceeds the permissible bounds of the police power. See Commonwealth v. Bonadio, 415 A2d 47, 49-50 (Pa. 1980).

The State also maintains that the furtherance of “social morality,” giving “due regard to the collective will of the citizens of Georgia,” is a constitutional basis for legislative control of the noncommercial, unforced, private sexual activity of those legally capable of consenting to such activity. It is well within the power of the legislative branch to establish public policy through legislative enactment. It is also without dispute that oftentimes the public policy so established and the laws so enacted reflect the will of the majority of Georgians as well as the majority’s notion of morality. However, “it does not follow . . . that simply because the legislature has enacted as law what may be a moral choice of the majority, the courts are, thereafter, bound to simply acquiesce.” Gryczan v. State, supra, 942 P2d at 125 (where the Supreme Court of Montana ruled that private consensual, noncommercial sexual conduct is protected by Montana’s constitutional right of individual privacy). “Social morality legislation,” like any legislative enactment, is subject to the scrutiny of the judicial branch under our tripartite system of “checks and balances.” See Cantrell v. State of Ga., 129 Ga. App. 465 (200 SE2d 163) (1973).

In undertaking the judiciary’s constitutional duty, it is not the prerogative of members of the judiciary to base decisions on their personal notions of morality. Indeed, if we were called upon to pass upon the propriety of the conduct herein involved, we would not condone it. Rather, the judiciary is charged with the task of examining a legislative enactment when it is alleged to impinge upon the freedoms and guarantees contained in the Georgia Bill of Rights and the U. S. Constitution, and scrutinizing the law, the interests it promotes, and the means by which it seeks to achieve those interests, to ensure that the law meets constitutional standards. While many believe that acts of sodomy, even those involving consenting adults, are morally reprehensible, this repugnance alone does not create a compelling justification for state regulation of the activity. Post v. State, 715 P2d 1105, 1109 (Okla. Cr. App.) cert. denied 479 U. S. 890 (107 SC 290, 93 LE2d 264) (1986) (where the Oklahoma appellate court held that a statute violated the federal right of privacy when applied to “non-violent consensual activity between adults in private.”) See also Campbell v. Sundquist, supra, 926 SW2d at 266; Commonwealth v. Wasson, supra, 842 SW2d at 498; Commonwealth v. Bonadio, supra, 415 A2d at 50 (where appellate courts in Tennessee, Kentucky, and Pennsylvania concluded that “no sufficient state interest justifies legislation of norms simply because a particular belief is followed by a number of people, or even a majority.”⁶) We agree with our fellow jurists that legislative enactments setting “social morality” are not exempt from judicial review testing their constitutional mettle.

We conclude that OCGA § 16-6-2, insofar as it criminalizes the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent, “manifestly infringes upon a constitutional provision” (Miller v. State, supra, 266 Ga. 850 (2)) which guarantees to the citizens of Georgia the right of privacy. Appellant was convicted for performing an unforced act of sexual intimacy with one legally capable of consenting thereto in the privacy of his home. Accordingly, appellant’s conviction for such behavior must be reversed.

Judgment reversed.

All the Justices concur, except Carley, J, who dissents.

1 Privacy rights protected by the U. S. Constitution are not at issue in this case. Thus, not applicable to this discussion are Bowers v. Hardwick, 478 U. S. 186, 191-192 (106 SC 2841, 92 LE2d 140) (1986), where the U. S. Supreme Court ruled that the right of privacy protected by the U. S. Constitution did not insulate private sexual conduct between consenting homosexual adults from state proscription because the U. S. Constitution did not “extend a fundamental right to homosexuals to engage in acts of consensual sodomy”!;] and King v. State, 265 Ga. 440 (458 SE2d 98) (1995), where this Court was faced with a defendant’s assertion of the federal right of privacy. See also Katz v. United States, 389 U. S. 347, 350-351 (88 SC 507, 19 LE2d 576) (1967), where the Court opined that the protection of a person’s general right to privacy, i.e., the right to be left alone, was left largely to the individual States.

2 The Court saw the right of persons to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures as an “implied recognition of the existence of a right of privacy. . . .” Id. at 198-199.

3 It is a well-recognized principle that a state court is free to interpret its state constitution in any way that does not violate principles of federal law, and thereby grant individuals more rights than those provided by the U. S. Constitution. Nowak, Rotunda & Young, Constitutional Law, § 1.6 (c), p. 21 (3rd ed.). Thus, a state court may interpret a state constitutional provision as affording more protection to citizens than have the federal courts in interpreting a parallel provision of the federal constitution. See Creamer v. State, 229 Ga. 511 (3) (192 SE2d 350) (1972). On several fronts, the Georgia Constitution has been construed as providing greater protection to its citizens than does the federal constitution. State v. Miller, 260 Ga. 669 (398 SE2d 547) (1990) (Georgia Constitution provides broader protection than the First Amendment); Green v. State, 260 Ga. 625 (398 SE2d 360) (1990) (Georgia Constitution grants a broader right against self-incrimination than the federal constitution); Fleming v. Zant, 259 Ga. 687, 690 (386 SE2d 339) (1989) (Georgia Constitution provides a more extensive guarantee against cruel and unusual punishment than does the federal constitution); Colonial Pipeline Co. v. Brown, 258 Ga. 115 (3) (365 SE2d 827) (1988) (Georgia Constitution’s excessive fines clause is more expansive than the Eighth Amendment); D. B. v. Clarke County Bd. of Ed., 220 Ga. App. 330 (1) (469 SE2d 438) (1996) (Georgia Constitution’s guarantee of a free education is broader than that provided by the U. S. Constitution). See also Grissom v. Gleason, 262 Ga. 374, n. 1 (418 SE2d 27) (1992), where this Court observed that Georgia’s equal protection clause might be interpreted to offer greater rights than the equal protection clause found in the federal constitution.

Georgia is not alone in providing its citizens with a broader right of privacy than that provided by the federal constitution. Appellate courts in Montana (Gryczan v. State, 942 P2d 112 (Mont. 1997)); Tennessee (Campbell v. Sundquist, 926 SW2d 250 (Tn. App. 1996)); Kentucky (Commonwealth v. Wasson, 842 SW2d 487 (Ky. 1993)); Texas (Texas State Emp. Union v. Dept. of Mental Health &c., 746 SW2d 203 (Tex. 1987)); and New Jersey (State v. Saunders, 381 A2d 333 (N.J. 1977)), have all interpreted the right of privacy guaranteed by their respective state constitutions as being more extensive than that provided by the U. S. Constitution.

4 In King v. State, 265 Ga. 440 (3) (458 SE2d 98) (1995), we affirmed King’s conviction for an act of sodomy performed with his 16-year-old stepdaughter. We declined to address whether his right to privacy and intimate association, as guaranteed by the federal constitution, was violated because “no factfinder had established that . . . [the] stepdaughter was a willing participant in the acts.” To the extent that the holding can be read as implying that “willing participation,” i.e., consent, must be affirmatively established before one may invoke a right of privacy concerning acts of sodomy, it is overruled. The Georgia sodomy statute does not require an affirmative finding of consent to support a sodomy conviction. Rather, evidence of a lack of consent is necessary to establish aggravated sodomy. OCGA § 16-6-2 (a).

5 As authority for the position that the State need only establish that legislation alleged to intrude upon the right of privacy has a “reasonable relation to a legitimate state purpose!,]” the Christensen plurality cited Blincoe v. State, 231 Ga. 886 (1) (204 SE2d 597) (1974). In that case, this Court stated, “It cannot be questioned that the state has no right, under the guise of exercising the police power, to invade the personal rights and liberty of the individual citizen by legislation which has no reasonable relation to a legitimate state purpose.” This statement in Blincoe sets forth the threshold burden which must be met by legislation alleged “to invade the personal rights and liberty of the individual citizen ...” It does not affirmatively require a rational review test when an individual invokes a fundamental right such as the right to privacy. In that situation, the State must establish that the legislation under attack serves a compelling state interest and is narrowly drawn to achieve that interest. Phagan, supra; Zant v. Prevatte, supra.

6 We are reminded of what Justice Oliver Wendell Holmes said in a dissent in Lochner v. New York, 198 U. S. 45, 76 (25 SC 539, 49 LE 937) (1905): “[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution. . . .”