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Powell v. State

Citation. 510 S.E.2d 18 (1998)
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Brief Fact Summary.

Defendant was convicted of the sodomy of his wife’s seventeen-year-old niece. Defendant appealed.

Synopsis of Rule of Law.

Morality alone is not a compelling justification for state regulation of activity.


Anthony Powell (Defendant) was charged with rape and aggravated sodomy related to sexual conduct involving his wife’s seventeen-year-old niece in Defendant’s apartment. The niece testified that the sexual acts occurred without her consent and against her will, while Defendant stated that he performed the acts with the niece’s consent. When giving the jury charge, the trial court provided instructions on the law of sodomy, O.C.G.A. § 16-6-2(a). The jury acquitted Defendant of the rape and aggravated sodomy charges, but found him guilty of sodomy, indicating that the state did not meet its burden of proving the sexual acts were committed by force and against the niece’s will. Defendant appealed his conviction, arguing that the statute criminalizing acts of sodomy engaged in by adults, in private and without force, is unconstitutional, because it infringes upon his state-granted privacy rights.


Whether morality alone is a compelling justification for state regulation of activity.


No. Defendant’s conviction is reversed. Morality alone is not a compelling justification for state regulation of activity.


(Carley, J.): If someone commits an act that the legislature has found to be immoral, even if it is private, the violation harms society as a whole. Protecting order and morality of communities is an important government interest. Thus, while keeping the prohibition on sodomy may or may not be good public policy, it is a policy determination appropriate only for the legislature.


(Sears, J.): An individual’s right to exercise his liberty does not depend on the moral standards of the majority. Just because most people may consider certain conduct immoral or wrong does not mean it is automatically undeserving of constitutional protection.


In performing its constitutional function, it is improper for the court to make decisions based on individual judges’ personal, moral opinions. Judges are instead supposed to evaluate statutes based on constitutional standards. Just because the legislature has passed a law that might be consistent with the moral views of most citizens does not mean that the court must simply accept it as valid without the required constitutional analysis. Part of this analysis is the notion that a government may not interfere with constitutionally protected conduct unless the limitation is narrowly tailored to serve a compelling state interest. Here, while the court may not condone the conduct at issue, this is not enough to deem it criminal. The proper question is whether the constitutional right of privacy protects a consensual, private, sexual act between adults from governmental interference. The right of privacy is firmly rooted in Georgia’s history. In Pavesich v. New England Life Ins. Co., 50 S.E. 68 (1905), the right of privacy was found to be a fundamental constitutional right, giving a person the right to be let alone, as long as he is not interfering with the rights of other individuals or the public. The privacy right established in Pavesich is even broader than the one protected by the United States Constitution, and while it is far reaching, it does have limitations. This case involves potential governmental interference with a sexual act that occurred without force, in private, between people legally capable of consent. This kind of conduct clearly falls within the principles set forth in Pavesich. It is safe to say that most reasonable people would agree that consensual, private, sexual activity between adults is one of the most private activities of all, certainly deserving of protection from the government’s interference. Therefore, in order to regulate such protected activity, the government must have a compelling interest. The state works to prevent violence and sexual assaults through the enactment of various criminal statutes, prohibiting a wide range of conduct. In contrast to those statutes, the sodomy statute here only regulates the private sexual conduct of consenting adults, something that the right of privacy places outside governmental reach. Therefore, there is no compelling interest. O.C.G.A. § 16-6-2 criminalizes constitutionally protected conduct and impermissibly infringes on the right of privacy rooted in Georgia’s constitution. Defendant was convicted under this invalid statute.

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