Summary
In Cooper v. State, 256 Ga. 631 (352 S.E.2d 382) (1987), the defendant committed aggravated sodomy on a five year old child.
Summary of this case from Collins v. StateOpinion
43780.
DECIDED JANUARY 28, 1987.
Certiorari to the Court of Appeals of Georgia — 180 Ga. App. 37.
William Rhymer, for appellant.
Timothy G. Madison, District Attorney, T. David Motes, John G. Wilbanks, Jr., Assistant District Attorneys, for appellee.
James Wallace Cooper was found guilty of aggravated sodomy and sentenced to a term of twenty years in the penitentiary. The Court of Appeals affirmed his conviction. Cooper v. State, 180 Ga. App. 37 ( 348 S.E.2d 486) (1986). We granted Cooper's application for certiorari to consider the elements of the crime of aggravated sodomy, as defined by OCGA § 16-6-2, in light of the holding in Drake v. State, 239 Ga. 232 ( 236 S.E.2d 748) (1977).
The victim in this case was a five-year-old female who had been left with Cooper at the home of her grandmother. Cooper was eighteen years of age. From the evidence it could be found that Cooper placed his penis in the victim's anus, and that as a result of this contact, the victim became infected with a venereal disease. The testimony of the victim fails to indicate that she resisted Cooper, or that Cooper used physical force to accomplish the act.
1. Cooper contends that, under the authority of Drake, supra, his conviction must be reversed, as there was no evidence that he employed physical force to overcome resistance from the five-year-old victim.
Drake, supra, was a forcible rape case, the victim being the nine-year-old daughter of the defendant. In that case we upheld a conviction because the element of force was supplied by the child's fear that her father would beat either her or her mother if she resisted his advances.
2. A five-year-old child cannot consent to any sexual act. See McFall v. State, 235 Ga. 105, 106 ( 218 S.E.2d 839) (1975); Drake, supra. Sexual acts directed to such a child are, in law, forcible and against the will. Carter v. State, 122 Ga. App. 21 ( 176 S.E.2d 238) (1970).
3. Cooper assigns as error the trial court's refusal to charge on request, as a lesser-included offense, the elements of child molestation as defined by OCGA § 16-6-4. Under the evidence in this case, such a charge would have been inappropriate, as the victim testified that Cooper did the act, and Cooper denied it. There was no error.
Judgment affirmed. All the Justices concur.