BROWN v. THE STATE

Supreme Court of Georgia1997-06-30No. S97A0433

268 Ga. 154486 S.E.2d 178

Summary · law.co

Holding. Child molestation constitutes a forcible felony within the meaning of Georgia's justification statute, making evidence of alleged child molestation admissible to support a justification defense. The trial court's judgment is reversed.

James Brown was charged with murder in the fatal shooting of a man Brown claimed was molesting his young daughter. Brown sought to use evidence of the alleged molestation to support a legal defense of justification—arguing he was entitled to use deadly force to prevent the crime. The trial court blocked this evidence, ruling that child molestation does not count as a "forcible felony" under Georgia law because it does not require a separate showing of physical force or violence. Brown appealed this ruling before trial.

The appellate court reversed the trial court's decision. The court reasoned that child molestation is inherently forcible and violent by its nature because children cannot consent to or resist sexual acts directed at them. Therefore, such acts are legally considered forcible regardless of whether additional physical force is separately documented. The court concluded that child molestation qualifies as a forcible felony for purposes of the justification defense. However, the court noted that Brown still carries the burden of proving the alleged molestation under evidentiary standards established in prior cases.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether child molestation qualifies as a forcible felony under Georgia statutory definition
Whether alleged acts of child molestation may be introduced as evidence supporting a justification defense to a murder charge
Nature and scope of the justification defense when deadly force is used to prevent sexual assault of a child

Procedural posture

An interlocutory appeal was granted to review the trial court's pretrial ruling excluding evidence of alleged child molestation in support of a justification defense.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Hines, Justice.

James William Brown is under indictment for malice murder in connection with the fatal shooting of Jeff Clark. The State filed a motion in limine seeking to exclude any reference to allegations that Clark molested Brown’s five-year-old daughter. Brown moved to deny the motion, and filed notice of his intention to use such evidence as grounds supporting his sole defense of justification pursuant to OCGA § 16-3-21 (a). Brown contends that he was justified in using deadly force against Clark to prevent the commission of the forcible felony of child molestation against his daughter. The trial court granted the State’s motion, ruling that the crime of child molestation, without a showing of use or threat of physical force, does not constitute a forcible felony, and, therefore, the defense of justification is unavailable to Brown as a matter of law. The trial court certified its ruling for immediate review, and we granted Brown’s interlocutory appeal application to consider whether the act of child molestation, in and of itself, constitutes a forcible felony for the purposes of OCGA § 16-3-21 (a).

Decided June 30, 1997.

Thompson, Fox, Chandler, Homans & Hicks, Robert L. Chandler, Cheryl H. Kelley, for appellant.

OCGA § 16-1-3 (6), defines a forcible felony as “any felony which involves the use or threat of physical force or violence against any person.” The State argues that in order for child molestation to qualify as a forcible felony an independent showing of use or threat of physical force is required. The argument fails.

Child molestation is, by its very nature, a crime involving a forcible and violent act. See Richardson v. State, 256 Ga. 746 (2) (353 SE2d 342) (1987); Cooper v. State, 256 Ga. 631 (2) (352 SE2d 382) (1987); Luke v. State, 222 Ga. App. 203 (1) (474 SE2d 49) (1996); Huggins v. State, 192 Ga. App. 820 (1) (386 SE2d 703) (1989). Because children do not have the capacity to give consent to or resist a sexual act directed at them, such acts “are, in law, forcible and against the will” of a child. Cooper v. State, supra; Luke v. State, supra. Thus, we find that for the purpose of establishing the defense of justification pursuant to OCGA § 16-3-21 (a), child molestation constitutes a forcible felony. However, this does not relieve Brown of the burden set forth in Chandler v. State, 261 Ga. 402, 407 (3) (405 SE2d 669) (1991), for admission of the alleged acts of violence by the victim. See Laster v. State, 268 Ga. 172 (486 SE2d 153) (1997).

Judgment reversed.

All the Justices concur.

Albert F. Taylor, Jr., District Attorney, Darrell E. Wilson, Assistant District Attorney, for appellee.

OCGA § 16-3-21 (a) provides:

A person is justified in ... using force against another when and to the extent that he reasonably believes that such . . . force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.

Child molestation occurs when “[a] person . . . does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a).