OCGA 16-6-3 Interpretation
In Orr v. State, 283 Ga. App. 372, 373 (2) (641 SE2d 613) (2007) the defendant claimed that the trial court erred in sentencing him for felony statutory rape under OCGA 16-6-3.
The defendant argued that the indictment failed to specify whether he was charged with felony or misdemeanor statutory rape, that the issue should have been submitted to the jury, and that since the issue was not so submitted, the trial court could only impose misdemeanor punishment. Id.
The Court disagreed, holding that the indictment's silence as to the defendant's age (which could have led to a misdemeanor punishment if the victim was fourteen or fifteen years of age and the defendant was no more than three years older - see OCGA 16-4-3 (c)) simply "set forth a charge of felony statutory rape" when it charged him with having sexual intercourse with a person under the age of sixteen (not his spouse). Id. at 373-374 (2).
The Court found no error in the court's sentencing him as a felon under the statute, which, similar to the statute at issue here, provided for felony punishment "except as provided" in the subsection of the statute describing what facts could mitigate the punishment to a misdemeanor. Compare OCGA 16-6-3 (b) with OCGA 16-6-4 (b) (1).
The Court held similarly in Attaway v. State, 284 Ga. App. 855, 856-857 (2) (644 SE2d 919) (2007).
Thus, these two cases demonstrate that just as the baseline or default punishment in the nearby and similarly-worded statutory rape statute is the prescribed felony punishment, so is the baseline or default punishment set forth in the child molestation statute the prescribed felony punishment.