1

Statute

(1) Commits sodomy with force and against the will of the other person, or (2) commits sodomy with a person who is less than 10 years of age. O.C.G.A. 16-6-2(a)(2). Marriage is no defense. Id.

2

Distinction between Sodomy

The only distinction between sodomy and aggravated sodomy is the element of force. Melton v. State, 282 Ga. App. 685 (2006).)

3

Caselaw

By enacting the aggravated child molestation statute, the General Assembly negated the applicability of a presumption of force in aggravated sodomy cases involving children, since such a presumption would leave the separate crime of aggravated child molestation with no practical purpose. Therefore, force is a separate essential element which the State is required to prove to obtain a conviction against a victim under the age of consent. The State can no longer prove force by showing only an act of sodomy on an underage victim. "Force" means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. Luke v. Battle, 275 Ga. 370 (2002); Brewer v. State, 271 Ga. 605 (1999). Constructive force cannot be recognized in aggravated sodomy cases involving victims who are above the age of consent, but incapable of consenting due to voluntary intoxication or mental incapacity. Melton Id. No requirement of force if under the age of 10. Id.

4

Penalty

Life imprisonment or split sentence (mandatory minimum of 25Y and probation for life). O.C.G.A. 16-6-2(b)(2).