## Facts

- Anthony San Juan Powell was indicted for rape and aggravated sodomy based on alleged sexual acts with his wife’s 17-year-old niece.
- The niece testified that Powell engaged in sexual intercourse and cunnilingus without her consent; Powell admitted the sexual acts but asserted they were consensual.
- Although sodomy was not charged in the indictment, the trial court instructed the jury on simple sodomy under O.C.G.A. § 16-6-2(a) based on Powell’s testimony.
- The jury acquitted Powell of rape and aggravated sodomy but convicted him of simple sodomy, reflecting a failure to prove force and lack of consent beyond a reasonable doubt.
- Powell appealed, challenging the sufficiency of the evidence, the unindicted-offense jury instruction, and the constitutionality of applying Georgia’s sodomy statute to private, consensual adult conduct under the Georgia Constitution.

## Issues

1. Whether the evidence was sufficient to sustain a conviction for sodomy under O.C.G.A. § 16-6-2(a).
2. Whether the trial court erred by instructing the jury on sodomy when that offense was not charged in the indictment.
3. Whether Georgia’s sodomy statute is unconstitutional as applied to private, consensual sodomy between adults under the Georgia Constitution’s right to privacy.

## Decision

- The Supreme Court of Georgia held the evidence was sufficient to support that Powell committed sodomy as statutorily defined.
- The court held the trial court did not err by instructing on simple sodomy based on the evidence and Powell’s admissions.
- The court held the Georgia Constitution’s right to privacy protects private, noncommercial, consensual sexual conduct between adults.
- The court ruled that moral disapproval, standing alone, is not a compelling state interest that can justify criminalizing such private consensual adult conduct.
- The court reversed Powell’s sodomy conviction and invalidated the statute to the extent it criminalizes private, consensual sodomy between adults.

## Legal Principles

- The Georgia Constitution recognizes a right to privacy that can provide broader protection than the federal constitutional minimum.
- Private, noncommercial, consensual sexual activity between adults falls within the protected sphere of privacy under Georgia law.
- When a law burdens protected private conduct, the State must show a compelling interest and a narrowly tailored means; moral condemnation alone is insufficient.
- Federal constitutional precedent upholding a statute does not control where the decision rests on independent state constitutional grounds.

## Conclusion

The court reversed Powell’s sodomy conviction because applying Georgia’s sodomy statute to private, consensual adult sexual conduct violates the Georgia Constitution’s right to privacy, and the State’s reliance on moral disapproval did not satisfy the required justification for criminal prohibition.


Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (Ga. 1998)