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The state high court will hear arguments today on whether to strike down a law thousands of Georgians break every day. The case comes from 17-year-old Jessie McClure’s challenge of the state’s law criminalizing fornication — sexual intercourse between people who are not married. McClure was found delinquent for violating the law last year with his girlfriend, when both were 16. A juvenile court judge fined McClure $250 and ordered him to write an essay about why what he did was wrong. McClure’s girlfriend, known only as G.D., was already on probation and was sent to a 90-day work camp. McClure’s case is the next step for civil liberties advocates in the wake of the high court’s 1998 decision in Powell v. State, 270 Ga. 327. That 6-1 ruling held that Georgia’s anti-sodomy law violated the state constitution’s privacy guarantees with regard to a “non-commercial sexual act that occurs without force in a private home between persons legally capable of consenting to the act.” While criticizing the majority’s holding as mere political correctness, Justice George H. Carley, the lone dissenter in Powell, wrote, “Presumably, under this new standard, the State can no longer enforce laws against fornication or adultery.” If Carley was correct, McClure and his lawyers from the American Civil Liberties Union will be the arrows that pierce the 1833 law — one that sent violators to the chain gang as late as 1909. Cox v. Lanier, 133 Ga. 682 (1909). They also will have removed Georgia from a list of 13 states and the District of Columbia that still ban fornication, according to the DKT Liberty Project, a Washington, D.C.-based privacy rights group that supports McClure. Census figures from 2000 show that more than 145,000 unmarried couples in Georgia live together. Thousands more unmarried people engage in sex, including teen-agers. PROSECUTORS STAND BY CASE Fayette County, Ga., prosecutors who are defending McClure’s conviction and the fornication law acknowledge that “the State does not ignore the reality that many Georgia teenagers are sexually active.” Information about McClure and G.D. is limited because juvenile case files are closed to the public. McClure’s name was released by the ACLU. Catherine B. Sanderson, a Peachtree City, Ga., domestic relations lawyer who was appointed to represent McClure in juvenile court, called her client “a really nice kid” who has had a “tough upbringing” and is “trying real hard to grow up.” McClure lives with his grandparents, works as a grill cook, and is taking GED classes, Sanderson adds. McClure had been dating G.D. for at least six months, Sanderson said, when G.D.’s mother unexpectedly burst in on the two having sex on the floor of G.D.’s bedroom on Sept. 16, 2001. The Fayette prosecutors’ brief says McClure jumped out a window to avoid G.D.’s mother. Sanderson said the window was on the first floor and that G.D. herself often used it to come and go. “He did leave the house in haste,” she allowed. Neither G.D.’s parents nor McClure’s grandparents sought legal action on the matter, but upon learning of the incident, G.D.’s probation officer brought charges against both 16-year-olds in Fayette County juvenile court. The probation officer, Opal McCraney, referred a call seeking explanation to the state Department of Juvenile Justice. Jacqueline Vickers, a spokeswoman for the department, said she could not speak specifically about McClure and G.D.’s cases. She said it’s uncommon for probation officers to pursue fornication charges, but theoretically, the conditions of G.D.’s probation could have included not having sex or even not having contact with McClure. Sanderson said G.D. testified for the prosecution at McClure’s trial. The two have broken up, she added. In the essay the juvenile court judge ordered McClure to write, Sanderson said McClure maintained “he didn’t believe what he did was wrong.” “I thought it was pretty bold of him,” she added. A copy of the essay was unavailable. PRIVACY AT ISSUE Sanderson challenged the fornication law on its face and brought the ACLU in on the case. In re: J.M., a child, No. S02A1432, (Ga., June 5, 2002). Their brief, by the ACLU’s Gerald R. Weber and Elizabeth L. Littrell, relies on the Powell decision, which was based on a 1905 Georgia high court case declaring a right to privacy is imbedded in the state constitution’s guarantee of due process. The 1905 case, Pavesich v. New England Life Ins. Co., 122 Ga. 190, had nothing to do with sex: It held that a life insurance company could not use a photograph of a man in its newspaper advertisements without the man’s permission. But in the decision, Justice Andrew J. Cobb said under “natural law,” “a person had a legal right ‘to be let alone,’ so long as he was not interfering with the rights of other individuals or of the public.” With Pavesich, the Georgia high court became the first in the country to find a right to privacy, one far broader than that recognized by the U.S. Supreme Court. Indeed, in 1986, the U.S. high court voted 5-4 to uphold Georgia’s sodomy law in Bowers v. Hardwick, 478 U.S. 186. Now that the Georgia Supreme Court has used Powell to throw out the sodomy law, McClure’s lawyers argue that the fornication law should be tossed as well. They explain that the right to privacy does not apply to sex cases in which someone has not consented, someone was too young to consent, or the act takes place in public. In McClure’s case, however, they add in their brief, “Both parties were legally able to consent, and did consent, to engage in noncommercial acts of sexual intimacy in a private home.” STILL CHILDREN? Statutory rape charges may be brought only against a person having sex with someone younger than 16. But in their brief defending the law and McClure’s finding of delinquency, Fayette County District Attorney William T. McBroom and Assistant District Attorney Jamie K. Inagawa argue that McClure and his girlfriend were still children in the eyes of the General Assembly. O.C.G.A. � 15-11-2(A) defines a “child” as a person under age 17. The prosecutors’ brief argues that for the justices to find the fornication law invalid on its face, they “would have to conclude as a matter of law that the bedroom [McClure] snuck into afforded its occupants a reasonable expectation of privacy regardless of the activity taking place within it, and would have to ignore the State’s role to assist, protect, and restore children whose well-being is threatened.” The prosecutors notably do not spend much time defending the law as it applies to anyone older than 17. Inagawa, who is expected to appear today, explained in an interview that, while McClure’s lawyers try to “broaden the scope to a public policy argument, I’ll just try to narrow it to our case.” In the brief, McBroom and Inagawa argue, “The parents of G.D. did not view [McClure's] fornication in their house, or his expectation of privacy, as reasonable or legitimate. That is why [McClure] jumped out the window as the parent tried to pursue him.” PRIVACY ISSUE CHALLENGED Moreover, they add that just because many teen-agers have sex does not mean they have a privacy right to do so. “It should be noted that in Powell, the Court made several references to ‘acts of sodomy committed by adults,’” the prosecutors point out in their brief. Added Inagawa, “the Powell case isn’t clear” whether 16-year-olds are considered adults in the context of sex. The prosecutors deny that the fornication law discriminates against unmarried people. Relying on the Bowers v. Hardwick holding that Georgia could make sodomy a crime, they add, “Surely it is constitutional [sic] permissible for a State to have a law merely disfavoring unmarried sexual intercourse.” Finally, the prosecutors conclude, “Whatever may be the privacy rights of consenting adults acting in private, [McClure] certainly does not fit into that category, and cannot ride on the constitutional coattails of those who do.” Responding to the argument that McClure had no expectation of privacy, Sanderson said, “There’s a big difference [between] his relationship with his girlfriend’s mother and his relationship with the state of Georgia.” She added that McClure did not “sneak” into the house but was invited by G.D. — and that he had been welcomed into the house on many previous occasions by G.D.’s parents. ATTORNEY GENERAL STANDS BY LAW When Powell was decided in 1998, State Attorney General Thurbert E. Baker complained that laws against same-sex marriage, polygamy, assisted suicide, necrophilia and bestiality would be challenged on privacy grounds. Now that the fornication law is under fire, Baker urged the high court to uphold the statute: “The Georgia Legislature has a legitimate interest in prohibiting this type of conduct.” Rockdale County District Attorney Richard R. Read said he “very seldom” uses the fornication statute, despite a teen sex problem portrayed in a PBS documentary, “The Lost Children of Rockdale County.” “Statutory rape usually fits the situation,” said Read, who asserts the documentary focused on an isolated group of teens. Gwinnett County District Attorney Daniel J. Porter, who was on the losing end of the Powell decision, said he can’t remember bringing a fornication case. “Given the beating I took in Powell,” he added, “[the Fayette prosecutors] have a tough row to hoe.” The winning lawyer in Powell, Steven H. Sadow, was more blunt: “Unless I misunderstand the ramifications of Powell, the fornication statute is dead.”

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