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Smith v State, Court of Appeals

2011 WL 4375136

Nature of the case:

Rape, incest, exploitation of a disabled adult.

Facts and Issues on Appeal:

Defendant was convicted of rape, incest and exploitation of a disabled adult for crimes involving his two sisters. The defendant moved to dismiss one charge of incest on the grounds that the first victim, S.A.S., was his adoptive rather than biological sister. The defendant also moved to dismiss one count of exploitation of a disabled adult on grounds that S.A.S. fit the definition of "disabled" only for certain purposes and not as applied to sexual acts. The court mostly agreed and dismissed both indictments, reasoning as follows:

Ruling & Rationale:

The crime of incest occurs when an individual commits sexual penetration with a person to whom he was knowingly related either by blood or through marriage. In the case of siblings, a person is guilty of incest if his or her sibling is of the "whole blood or half blood". The prosecution conceded that S.A.S. was not a whole or half blood sibling of the defendant, but noted that in the past the court had recognized that adopted children enjoy the rights and privileges of biological children, including protection from incest. The court disagreed citing an older case that held that sexual intercourse between two siblings not related by blood was not a violation of the incest statute because the statute expressly applied to siblings only of the "whole or the half blood". Thus, the trial court erred when it denied the defendant's motion to dismiss the charge of incest.

On the charge of exploitation of a disabled adult the defendant made three arguments. First, that S.A.S was not "disabled" under the exploitation statue; second, that the sexual conduct he committed against the victim was not “exploitation” under the language of the statue, and third, that the statue was unconstitutionally vague.

The court declined to address the vagueness issue and ruled that the victim was a disabled adult, but held that the term “exploitation” in the context of the relevant statue did not include "sexual contact". The legislative history and the terms used in the statute had never been applied to a criminal sanction for sexual acts performed on a disabled adult. Also, because the statute’s express purpose was to provide protective services for abused, neglected or disabled adults and elder persons, if the legislature had promulgated the act to regulate sexual contact with disabled individuals it would have said so explicitly. Thus, the trial court erred in denying the defendant’s motion to dismiss.

Editorial Comment

In other circumstances, Georgia’s courts have recognized that adopted children enjoy the same rights and privileges as biological children, including protection from incest. This court declined to follow that line of reasoning, thus exposing a large class of children to an increased risk of victimization. Lawmakers would be wise to respond to this case immediately by amending Georgia's incest laws to ensure that all siblings are protected by incest laws based on the experiential nature of familial relationships rather than formalized issues of blood and marriage. Lawmakers should similarly take action to explicitly provide that sexual contact and sexual crimes are included in the definition of "exploitation" under the statute that protects disabled persons from exploitative harm.

Submitted By: Jeananne Russell -- Law Student

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