writing that “sexual battery requires only general intent” when that crime was defined as “intentionally makfing] physical contact with the intimate parts of the body of another person without the consent of that person”
How later courts described this case
- writing that “sexual battery requires only general intent” when that crime was defined as “intentionally makfing] physical contact with the intimate parts of the body of another person without the consent of that person”
- sexual battery can be a lesser included offense of child molestation as a matter of fact
- indictment charging that defendant intentionally touched breast of minor victim included all necessary elements to show sexual battery although it did not allege lack of consent, because victim could not legally consent
- noting that sexual battery requires only general intent
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Watson v. State, 297 Ga. 718 (2015)
223 Ga. App. 772, 776 (1) (b) ( 479 SE2d 125 ) (1996), overruled on other grounds by Watson v. State, 297 Ga. 718
The opinion
Smith, Judge,
concurring specially.
. I concur fully with the conclusion that the trial court did not erroneously refuse to give Strickland’s requested charge. Given this conclusion, I do not agree that this case is an Appropriate vehicle for discussion of whether sexual battery may be a lesser included offense of child molestation as a matter of fact. Had evidence been presented that Strickland committed sexual battery, a discussion of this issue would likely be necessary because our holding then would depend on the issue of whether sexual battery could ever be included in the offense of child molestation. The opinion notes, though, that the evidence demanded one of only two conclusions: Strickland was guilty “of child molestation or nothing.” As in Rash v. State, 207 Ga. App. 585, 588 (6) ( 428 SE2d 799 ) (1993), our holding could be based on the simple fact that the evidence presented could not have supported a charge on sexual battery. Because the issue of whether sexual battery could ever be included as a matter of fact in the offense of child molestation is not dispositive of the issue in this case, the discussion in Division 1 (a) is premature.
Furthermore, I am concerned that the conclusion reached in Division 1 (a) might thwart the statutory scheme, embodied in OCGA §§ 16-6-3, 16-6-4, and 16-6-5, that protects children of tender years against sexual offenses. Although these statutes are mentioned in footnote 1, the opinion does not address and resolve the potential conflict of a holding that sexual battery may be a lesser included *781 offense of child molestation with the special legislative considerations afforded to children under 16.
Decided December 4, 1996
William W. Keith III, Karen E. Luffman, for appellant.
Roger G. Queen, District Attorney, for appellee.
I am authorized to state that Judge Andrews, Judge Johnson and Senior Appellate Judge Harold R. Banke join in this special concurrence.