Opinion
61158.
DECIDED JANUARY 20, 1981.
Rape. Tift Superior Court. Before Judge Gray, Senior Judge.
David Perry, Bob Reinhardt, for appellants.
Thomas H. Pittman, District Attorney, Curtis M. French, Assistant District Attorney, for appellee.
The appellants, Henry Singleton and Charles Tabor, appeal their joint convictions for rape. Held:
1. The first enumeration of error is directed to the trial court's refusal to consider evidence of the victim's reputation for promiscuity when offered during the pre-sentencing hearing. Though conceding that the evidence was inadmissible during the guilt/innocence phase of the trial under Code Ann. § 38-202.1 (Ga. L. 1976, p. 741), the appellants argue that the trial court had a duty to consider it in mitigation of punishment. We disagree. The Code section applies by its terms to "any prosecution for rape" making no distinction between the different phases of the trial. Indeed, the philosophy behind the appellants' argument is precisely that which the statute seeks to eliminate, i.e., that women of promiscuous sexual reputation are entitled to less protection under the rape laws than women of chaste reputation. In any event, we must reject this enumeration of error due to the absence of a sufficient offer of proof.
2. The trial court fully and fairly instructed the jury to the effect that the appellants could not be convicted if the prosecutrix consented to engage in intercourse with them. See generally Curtis v. State, 236 Ga. 362 (1) ( 223 S.E.2d 721) (1976).
Judgment affirmed. Deen, C. J., and Carley, J., concur.