Strengthening Constitutional Self-Government

No Left Turns

The Right to Fornicate in Georgia

I thought that would get your attention. The Georgia Supreme Court struck down a law prohibiting fornication as a violation of the Georgia Constitution’s right to privacy. The case was brought by a sixteen-year-old caught in flagrante delicto with his sixteen-year-old girlfriend in her parents’ house. The court found that because 16-year-olds are old enough to consent to sex under Georgia law, the fact that they were minors did not change the analysis. That said, the court did clarify that "[n]othing in this opinion should be read to address the [girl’s] parents’ rights to regulate what occurs in their home . . . ." The opinion is available online here.

Discussions - 2 Comments

"The case was brought by a sixteen-year-old caught in flagrante delicto with his sixteen-year-old girlfriend in her parents’ house..."

As a parent with four youngin’s approaching this age, I am tempted to shrink with mortal fear, at this point. The parent, while legally responsible for the actions of their children, are, at the same time, hamstrung when it comes to controling what their children do in their own home: a nasty mixture for disaster.

Where am I to go and hide from this assault on good parenting?

Perhaps out of sense of public decency perhaps out of sense of bloggospheric brevity, Alt did not provide us with the detailed facts set forth in the opinion, but I think a couple of interesting issues are illuminated by them.

According to the court:
"G.D. [the juvenile female involved in the case] lived with her parents. Between 2 a.m. and 5 a.m. on September 16, 2001, she brought appellant J.M. [the male juvenile charged in the case] into her bedroom. She placed a stool next to the closed bedroom door, and she and J.M. engaged in sexual intercourse on the floor of her bedroom. When G.D.’s mother walked in and discovered them having sexual intercourse, J.M. jumped out of the bedroom window and ran.
"Although G.D.’s parents did not pursue any charges against J.M., the State
initiated delinquency proceedings. Based on his violation of the fornication statute, the juvenile court adjudicated J.M. delinquent, and this appeal followed."

First, if the girl’s parents did not purusue any charges against the boy, how did this case come to the attention of the State? Also, doesn’t the State of Georgia have something better to do that prosecute this sort of thing, when even the girl’s parents aren’t pushing the case?

Second, one might be surprised that the boy’s right to privacy extends to a room in a house that is owned by his girlfriend’s parents that he has entered sureptiously through a window in the middle of the night. However, the court explains that:

"J.M. and G.D.’s acts were private. The bedroom was G.D.’s personal bedroom, and she invited J.M. to enter the house and her bedroom. J.M. had been to G.D.’s house several times before, and he had never been told that he was not welcome to return to her house. Although G.D.’s mother did not condone her daughter’s behavior, she acknowledged that G.D. could reasonably expect privacy in various parts of the family home at various times, including in G.D.’s bedroom. Before beginning her intimacies with J.M., G.D. ensured the bedroom door was closed and placed a stool against the door, further evidencing her and J.M.’s efforts to keep their acts private. Under these facts, we find that they intended to keep their sexual activity private and took reasonable steps to ensure their privacy. Accordingly, Georgia’s right to privacy encompassed J.M.’s actions."

Am I alone in thinking that J.M.’s expectation of privacy was not particularly reasonable under the circumstances?

Since when is "being sneaky" and "trying not to get caught by your girlfriend’s parents" the legal equivalent of a "reasonable expectation of privacy"?

Also how reasonable were the steps that the couple took to ensure their privacy when the girl’s attempt to bar the door utterly failed and the couple obviously did something (between 2:00 a.m. and 5:00 a.m., no less) to attract the attention of the girl’s mother?

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