2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 6 - Sexual Offenses
§ 16-6-22. Incest

1. A person commits the offense of incest when such person engages in sexual intercourse or sodomy, as such term is defined in Code Section 16-6-2, with a person whom he or she knows he or she is related to either by blood or by marriage as follows:
   1. Father and child or stepchild;
   2. Mother and child or stepchild;
   3. Siblings of the whole blood or of the half blood;
   4. Grandparent and grandchild of the whole blood or of the half blood;
   5. Aunt and niece or nephew of the whole blood or of the half blood; or
   6. Uncle and niece or nephew of the whole blood or of the half blood.
2. A person convicted of the offense of incest shall be punished by imprisonment for not less than ten nor more than 30 years; provided, however, that any person convicted of the offense of incest under this subsection with a child under the age of 14 years shall be punished by imprisonment for not less than 25 nor more than 50 years. Any person convicted under this Code section of the offense of incest shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.

(Laws 1833, Cobb's 1851 Digest, p. 814; Code 1863, § 4418; Code 1868, § 4459; Code 1873, § 4533; Code 1882, § 4533; Ga. L. 1886, p. 30, § 1; Penal Code 1895, § 380; Penal Code 1910, § 371; Ga. L. 1916, p. 51, § 1; Code 1933, § 26-5701; Code 1933, § 26-2006, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 2006, p. 379, § 14/HB 1059; Ga. L. 2010, p. 168, § 3/HB 571; Ga. L. 2015, p. 203, § 1-1/SB 72.)

- Actions for childhood sexual abuse, § 9-3-33.1.

Degrees of relationship within which intermarriage prohibited, § 19-3-3.

Visitation with minors by convicted sexual offenders while imprisoned, § 42-5-56.

- Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:

"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;

"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;

"(3) Providing for community and public notification concerning the presence of sexual offenders;

"(4) Collecting data relative to sexual offenses and sexual offenders;

"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and

"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.

"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."

Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

- For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 11 (2006). For annual survey on criminal law, see 68 Mercer L. Rev. 93 (2016).

ANALYSIS

• General Consideration
• Relationships
• Evidence
• Relationship With Other Crimes
• Sentence

General Consideration

Constitutionality.

- O.C.G.A. § 16-6-22 does not unconstitutionally infringe on the right of privacy because it bars intercourse with a non-blood-related, consenting adult. Benton v. State, 265 Ga. 648, 461 S.E.2d 202 (1995), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).

Because the class of individuals subject to punishment is not arbitrarily drawn, O.C.G.A. § 16-6-22 does not violate equal protection. Benton v. State, 265 Ga. 648, 461 S.E.2d 202 (1995), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).

Classification on the basis of step-parent and step-child bears a rational relationship to the governmental interest in protecting children and family unity and does not violate equal protection guarantees. Benton v. State, 265 Ga. 648, 461 S.E.2d 202 (1995), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).

- The unnatural crime, prohibited in former Code 1933, § 26-5701 is generally the act of a man upon a woman, over whom, by the natural ties of kindred, he has almost complete control, and generally he alone is to blame. There is a force used, which, while it cannot be said to be that violence which constitutes rape, is yet of a character that is almost as overpowering. Indeed, if it were necessary to make out a case of mutual consent as an element of such crime few cases of this crime would be punished. Mosley v. State, 65 Ga. App. 800, 16 S.E.2d 504 (1941) (see O.C.G.A. § 16-6-22).

Because children do not have the capacity to give consent to or resist a sexual act directed at them, acts such as incest, sodomy, and aggravated sodomy are, in law, forcible and against the will of the child. House v. State, 236 Ga. App. 405, 512 S.E.2d 287 (1999).

§ 17-10-6.1(a). - Trial court did not abuse the court's discretion in denying a defendant's post-conviction motion for deoxyribonucleic acid (DNA) testing because the defendant was barred from requesting DNA testing under O.C.G.A. § 5-5-41(c)(3) since the defendant's conviction for the crime of incest in violation of O.C.G.A. § 16-6-22(a)(3) was not defined as a serious violent felony under O.C.G.A. § 17-10-6.1(a). Hunter v. State, 294 Ga. App. 583, 669 S.E.2d 533 (2008).

Slight penetration, including entry of the anterior of the organ, is sufficient to meet the intercourse element of incest. Raymond v. State, 232 Ga. App. 228, 501 S.E.2d 568 (1998); Alford v. State, 243 Ga. App. 212, 534 S.E.2d 81 (2000).

- Because the evidence demonstrating that the victim was under the age of 14 at the time the incest was committed was uncontested and was overwhelming, any error in not submitting the issue of the victim's age to the jury was harmless and the trial court did not err in imposing an enhanced sentence on the incest count. Rodriguez v. State, 355 Ga. App. 122, 843 S.E.2d 9 (2020).

- Variance between the indictment, which stated that the victim was the defendant's daughter, and the evidence, which showed she was his stepdaughter, was not fatal. Nichols v. State, 221 Ga. App. 600, 473 S.E.2d 491 (1996).

- Evidence was insufficient to support the defendant's incest conviction because the relationship at issue, the defendant being the victim's half-uncle, was not expressly enumerated by the statute. Gordon v. State, 327 Ga. App. 774, 761 S.E.2d 169 (2014).

Cited in Cobb v. State, 125 Ga. App. 556, 188 S.E.2d 260 (1972); Rogers v. State, 139 Ga. App. 656, 229 S.E.2d 132 (1976); Andrews v. State, 144 Ga. App. 243, 240 S.E.2d 744 (1977); Ramsey v. State, 145 Ga. App. 60, 243 S.E.2d 555 (1978); Johnson v. State, 149 Ga. App. 544, 254 S.E.2d 757 (1979); Royals v. State, 155 Ga. App. 378, 270 S.E.2d 906 (1980); Love v. State, 190 Ga. App. 264, 378 S.E.2d 893 (1989); Richardson v. State, 194 Ga. App. 358, 390 S.E.2d 442 (1990); Adcock v. State, 194 Ga. App. 627, 391 S.E.2d 438 (1990); Loyd v. State, 202 Ga. App. 1, 413 S.E.2d 222 (1991); Smith v. State, 206 Ga. App. 557, 426 S.E.2d 23 (1992); Wiser v. State, 242 Ga. App. 593, 530 S.E.2d 278 (2000);.

Relationships

Uncle and niece.

- Evidence that a defendant had sexual intercourse with his niece from age 14 to 17, touched her breasts and vagina with his mouth, touched her with sex toys, showed her pornography, and placed her mouth on his penis was sufficient to convict him of child molestation and incest in violation of O.C.G.A. §§ 16-6-4(a) and16-6-22(a)(6). Stott v. State, 304 Ga. App. 560, 697 S.E.2d 257 (2010).

- O.C.G.A. § 16-6-22, while prohibiting sexual relations between certain persons related only by affinity, does not include the stepgrandfather-stepgranddaughter relationship in its definition of incest. Glisson v. State, 188 Ga. App. 152, 372 S.E.2d 462, cert. denied, 188 Ga. App. 911, 372 S.E.2d 462 (1988).

- The jury was authorized to conclude beyond a reasonable doubt that defendant and the victim were related by marriage as stepfather and stepdaughter, where there had been voluntary consent to and ratification of a de facto marriage relationship between defendant and the victim's mother for over seven years following a prior undissolved marriage with another woman. Argo v. State, 188 Ga. App. 102, 371 S.E.2d 922, cert. denied, 188 Ga. App. 911, 371 S.E.2d 922 (1988).

Although the defendant denied it on the witness stand, his stepdaughter testified that he had sexual intercourse with her while he was married to her mother; the evidence was sufficient for a trier of fact to have rationally found proof of guilt beyond a reasonable doubt. Johnson v. State, 195 Ga. App. 385, 393 S.E.2d 712 (1990).

Evidence was sufficient to support a conviction for incest notwithstanding defendant's contention that his stepdaughter was an accomplice; since most, if not all, of the sexual encounters took place when the victim was between 10 and 14 years old, she could not be treated as an accomplice. Walker v. State, 234 Ga. App. 40, 506 S.E.2d 179 (1998).

Since it was undisputed that the victim was defendant's stepchild, and since the state established that defendant had sexual intercourse with the victim, the jury was authorized to find defendant guilty of incest. Reynolds v. State, 269 Ga. App. 268, 603 S.E.2d 779 (2004).

Evidence was sufficient to support the defendant's conviction for incest because the victim testified that the defendant had sexual intercourse with the victim while the defendant was married to the victim's mother. Stephens v. State, 305 Ga. App. 339, 699 S.E.2d 558 (2010).

- Trial court erred in convicting defendant of incest, O.C.G.A. § 16-6-22. At a guilty plea hearing, the prosecutor alleged that defendant had sexual intercourse with the defendant's step-sibling; however, sexual intercourse between step-siblings was not included in the crime of incest under O.C.G.A. § 16-6-22(a)(3). Further, defendant received ineffective assistance of counsel at the plea hearing pursuant to U.S. Const., amend. 6, because if counsel had informed defendant that the state could not as a matter of law prove the offense of incest because defendant's relationship to the victim was not included within the statutory scheme for such offense, defendant would not have pled guilty and would have insisted on going to trial. Shabazz v. State, 259 Ga. App. 339, 577 S.E.2d 45 (2003).

- Defendant could be convicted of incestuous conduct with his stepdaughter after the death of the natural mother, where the victim's status as stepdaughter created by marriage had been perpetuated and confirmed by a court order granting defendant custody of his stepdaughter after the death of the girl's mother. Gish v. State, 181 Ga. App. 478, 352 S.E.2d 800 (1987).

- Although the state did not introduce documentary evidence of adoption, unrebutted testimony of the adoption by defendant, his wife, and the victim was sufficient to establish the relationship. Edmonson v. State, 219 Ga. App. 323, 464 S.E.2d 839 (1995), overruled on other grounds, Collins v. State, 229 Ga. App. 658, 495 S.E.2d 59 (1997).

Because adopted individuals "enjoy every right and privilege of a biological child," they are statutorily protected from incest. Edmonson v. State, 219 Ga. App. 323, 464 S.E.2d 839 (1995), overruled on other grounds, Collins v. State, 229 Ga. App. 658, 495 S.E.2d 59 (1997).

- Trial court erred when the court denied the defendant's motion to quash the count of an indictment charging the defendant with incest because the defendant did not commit incest since the defendant's adoptive sister was not a whole blood or half blood sibling; the incest statute, O.C.G.A. § 16-6-22, does not prohibit sexual intercourse between a brother and an adoptive sister not related by blood. Smith v. State, 311 Ga. App. 757, 717 S.E.2d 280 (2011).

- Evidence was sufficient to convict the defendant of incest of the victim, the defendant's niece, because the victim's biological mother testified as to the identity of the victim's biological father, and it was undisputed that the person the biological mother identified as the victim's biological father was the defendant's brother; the victim testified that the defendant referred to the victim as the defendant's niece while committing the crime; the defendant's statement to Georgia Bureau of Investigation investigators acknowledged the blood relationship between the defendant and the victim; and it was not necessary for the state to provide DNA evidence to establish consanguinity. King v. State, 344 Ga. App. 244, 809 S.E.2d 824 (2018).

Corroboration of incestuous acts is not required under the plain language of the incest statute. Baker v. State, 245 Ga. 657, 266 S.E.2d 477 (1980).

Corroboration is not required to warrant a conviction for the offenses of incest, sodomy, and child molestation, and trial court's failure to charge the jury that corroboration was required was not error. Scales v. State, 171 Ga. App. 924, 321 S.E.2d 764 (1984).

- Absence of any corroborative evidence is not a ground for reversing a conviction for incest. Hall v. State, 186 Ga. App. 830, 368 S.E.2d 787 (1988).

- Witnesses testified pursuant to former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820) that the defendant's stepchild, then 12, told the witnesses about being repeatedly raped and molested by the defendant. That the stepchild recanted these statements at trial did not render the hearsay inadmissible under former § 24-3-16, and as the stepchild's credibility was for the jury to decide, the evidence was sufficient to support the defendant's convictions for rape, incest, and child molestation. Harvey v. State, 295 Ga. App. 458, 671 S.E.2d 924 (2009).

- When the evidence showed that the defendant first began having sexual relations with his stepdaughter when she was about 12 years of age and continued having sexual relations with her until she was in her seventeenth year, the pattern of sexual exploitation presented was, as a matter of law, forcible and against the will, because of the stepdaughter's age at onset, and because of her familial relationship with defendant, and the assertion that consensual sexual activity is protected by a right of privacy was inapplicable, as no consent was possible. Richardson v. State, 256 Ga. 746, 353 S.E.2d 342 (1987); Benton v. State, 265 Ga. 648, 461 S.E.2d 202 (1995), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).

- State was allowed to use a victim's prior inconsistent statement as substantive evidence of the events, as it was the jury's role to determine what evidence to believe; the evidence presented to the jury, including the victim's prior statement that defendant placed the defendant's genitals on the victim's breast, was sufficient to sustain defendant's conviction for sexual battery. Brewster v. State, 261 Ga. App. 795, 584 S.E.2d 66 (2003).

- Evidence was sufficient to support the defendant's conviction for incest in violation of O.C.G.A. § 16-6-22 because the victim testified that the defendant had sexual intercourse with the victim while the defendant was married to the victim's mother. Stephens v. State, 305 Ga. App. 339, 699 S.E.2d 558 (2010).

Sufficient evidence supported the defendant's convictions for incest with the defendant's daughter both before and after the victim was 14 years old based on the testimony of the victim, which was corroborated with testimony from the victim's sister, brother, and mother. Torres v. State, 353 Ga. App. 470, 838 S.E.2d 137 (2020).

- In a trial for rape and incest, the trial court did not err in permitting the victim to testify as to two prior incidents in which defendant, her father, made sexual advances toward her. Hall v. State, 186 Ga. App. 830, 368 S.E.2d 787 (1988).

- In a prosecution for incest with a stepdaughter, similar transaction testimony given by the defendant's two daughters from his former marriage, in relation to repeated sexual assaults under the same circumstances some 25 years previously, was properly admitted. Nichols v. State, 221 Ga. App. 600, 473 S.E.2d 491 (1996).

- Given that the defendant was not charged with rape, evidence of the victim's sexual activity, and the fact that the victim was involved with someone, with whom the victim allegedly had sexual intercourse during the time of the alleged sexual abuse, should not have been excluded under either the 2004 or 2005 version of the Rape Shield statute, as: (1) said evidence acted as a possible explanation for the victim's physical trauma, placing the victim's credibility and the defendant's guilt into question; (2) the jury's split verdict supported the defendant's argument that even without the excluded testimony, the State's case was far less than overwhelming; and, (3) the appeals court could not determine what role the excluded evidence would have played in the jury's deliberations; hence, a new trial as to the charges of child molestation and incest was ordered. Gresham v. State, 281 Ga. App. 116, 635 S.E.2d 316 (2006).

- When the victim, the defendant's 14-year-old child testified that the defendant had sexual intercourse with the victim, and the defendant denied doing so, but the testimony of the victim was corroborated by the victim's sibling and a medical doctor, the evidence was sufficient to meet the requisite standard of proof. Womble v. State, 183 Ga. App. 727, 360 S.E.2d 271 (1987).

When the defendant's niece testified that the defendant climbed on top of the victim and forced the defendant's genitals into the victim's genitals and the defendant admitted that the defendant had sexual intercourse with the defendant's niece, the evidence supported the defendant's conviction. Backey v. State, 234 Ga. App. 265, 506 S.E.2d 435 (1998).

Victim's testimony that the victim had sexual intercourse with defendant, that the defendant placed the defendant's finger in the victim's genitals, placed the defendant's hand on the victim's genitals, placed the defendant's mouth on the victim's breast, and placed the defendant's mouth on the victim's mouth, established the offenses of aggravated sexual battery pursuant to O.C.G.A. § 16-6-22.2, incest pursuant to O.C.G.A. § 16-6-22, and child molestation. Falak v. State, 261 Ga. App. 404, 583 S.E.2d 146 (2003).

Evidence was sufficient to support defendant's conviction for incest, as the evidence presented, including the victim's admission that the victim had sexual intercourse with defendant, was enough to allow a rational trier of fact to find the essential element of "sexual intercourse" so as to support defendant's conviction for incest. Furthermore, defendant's argument that the evidence introduced was not sufficient to support the defendant's conviction for incest had to be rejected, as defendant's reliance on rape cases to argue the defendant's point was in error; the rape statute required proof that penetration had occurred, whereas the incest statute, by contrast, only required proof that sexual intercourse had taken place and the state introduced such proof. Little v. State, 262 Ga. App. 377, 585 S.E.2d 677 (2003).

Victim's testimony, which was supported by statements the victim made to family, friends, and investigators regarding sexual acts the defendant committed upon the victim, together with the medical findings of the pediatrician who examined the victim were completely consistent with the victim's allegation of abuse by sexual intercourse; therefore, the evidence was more than sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of incest. Wilkins v. State, 264 Ga. App. 524, 591 S.E.2d 445 (2003).

Victim's testimony alone was sufficient to support defendant's convictions for incest and child molestation, and the evidence was sufficient to support defendant's statutory rape conviction as it was corroborated where the victim testified that defendant, the victim's stepparent, began to ask the victim to masturbate and use sex toys, including vibrators, dildos, and other objects, and would use them on the defendant and on the victim when the victim was eight or nine years old; defendant began having sexual intercourse with the victim when the victim was about 12, even though the victim told the defendant that it was not right and that the victim did not like it; after one of the final acts of intercourse with defendant, the victim wiped the victim with a sock and kept the sock until the day the victim ran away to a friend's home and told the victim's friend about defendant's conduct, the semen stains on the sock were consistent with defendant's semen, and the state's expert's opinion was that epithelial cells present on the sock came from the victim's genitals; and when the victim was in the ninth grade, the victim told a friend about defendant's behavior but made the friend promise not to tell anyone. Eley v. State, 266 Ga. App. 45, 596 S.E.2d 660 (2004), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).

There was sufficient evidence to support the defendant's convictions for child molestation, aggravated child molestation, statutory rape, and incest, in violation of O.C.G.A. §§ 16-6-4,16-6-4(c),16-6-3, and16-6-22, respectively, because the defendant's step-child gave detailed testimony as to the continuing sexual conduct that the defendant inflicted on the child over a period of years, as the testimony from just that witness was sufficient to support the convictions, pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8); further, there was corroborative testimony from a friend of the step-child who witnessed at least one incident, and from an aunt who testified that the older step-child had sat in the defendant's lap and that the defendant rubbed the older step-child's legs, which was properly admitted for purposes of corroboration, bent of mind, lustful disposition toward children, and motive. Lewis v. State, 275 Ga. App. 41, 619 S.E.2d 699 (2005).

Testimony that the victim physically resisted the defendant's sexual advances to no avail was sufficient to support the defendant's rape and aggravated sodomy convictions; moreover, because sufficient evidence was presented that the defendant was the victim's biological and/or legal father, sufficient evidence supported the defendant's incest conviction as well. Williams v. State, 284 Ga. App. 255, 643 S.E.2d 749 (2007).

Rape, incest, child molestation, aggravated child molestation, and aggravated sodomy convictions were all upheld on appeal, given that: (1) the elements of child molestation and aggravated child molestation, including venue, were supported by the female victim's testimony; and (2) the trial court's charge on the mandatory presumption of consent was proper. Forbes v. State, 284 Ga. App. 520, 644 S.E.2d 345 (2007).

There was sufficient evidence to support a defendant's convictions for rape, incest, statutory rape, and child molestation against one of the defendant's children and a stepchild based on the defendant's repeated engagement in sexual intercourse with the children at various times while one was 12 to 16 years old and the other was 16 to 19 years old, and evidence of a letter threatening suicide on the defendant's part and apologizing for the actions against the children was also introduced against the defendant. However, the conviction on the charge of aggravated sexual battery against the stepchild was in error and required reversal since the state failed to introduce direct or circumstantial evidence sufficient to prove beyond a reasonable doubt that the defendant violated O.C.G.A. § 16-6-22.2 by penetrating that child's sexual organ with a replica penis. Connelly v. State, 295 Ga. App. 765, 673 S.E.2d 274 (2009), cert. denied, No. S09C0892, 2009 Ga. LEXIS 260 (Ga. 2009).

Sufficient evidence existed to support a defendant's convictions for incest and child molestation with regard to actions the defendant took toward the defendant's own children based on the children's recorded police interviews that were played for the jury; the testimony from a licensed clinical social worker who was admitted as an expert in child sexual abuse and abuse's effect on children; and the testimony of the pediatric nurse practitioner who examined the victims and stated that, although the victims' physical exams were normal, the results were consistent with their reports of sexual abuse. The victims' testimony, standing alone, would have been sufficient to support the convictions; therefore, the trial court did not err by denying the defendant's motion for a directed verdict. Hubert v. State, 297 Ga. App. 71, 676 S.E.2d 436 (2009).

Evidence was sufficient to convict defendant of incest under O.C.G.A. § 16-6-22(a) because the mother testified that she informed defendant that the victim was his daughter, DNA tests confirmed his parentage of the victim, and defendant legally adopted the victim, with whom he fathered five children. Pyburn v. State, 301 Ga. App. 372, 687 S.E.2d 909 (2009).

Evidence was sufficient to support the defendant's conviction for incest in violation of O.C.G.A. § 16-6-22(a) because the victim testified that the defendant had sexual intercourse with the victim on a frequent basis for over six years, during which time the defendant was married to the victim's mother; the victim's cousin testified that the cousin was in the same room during one incident when the defendant and the victim had sexual intercourse. Davenport v. State, 316 Ga. App. 234, 729 S.E.2d 442 (2012).

Testimony from the victim and the victim's mother testified that the defendant was the victim's daughter, and the defendant's repeated testimony at trial was that the victim was the defendant's daughter was sufficient to prove consanguinity for purposes of the incest conviction. Wynn v. State, 322 Ga. App. 66, 744 S.E.2d 64 (2013).

Evidence was sufficient to convict the defendant of aggravated child molestation, rape, incest, and two counts of sexual battery because the defendant, the victim's father, began touching the victim's breasts and genital area when the victim was 14 years old; the defendant's actions escalated to vaginal intercourse after the victim turned 15; the victim told the defendant the intercourse was painful, but the defendant persisted; the victim testified that the victim did not desire or consent to the sexual activity with the defendant; and the victim's testimony was corroborated by the medical evidence that the victim's genital area appeared abnormal in ways consistent with the victim's account. Tinson v. State, 337 Ga. App. 83, 785 S.E.2d 914 (2016).

Victim's testimony that the victim had sex, including oral sex, with the defendant, the victim's stepfather, beginning when the victim was 12 years old was corroborated by, among other things, the defendant's admissions and, therefore, the evidence was sufficient to support the statutory rape, child molestation, aggravated child molestation, and incest convictions. Jackson v. State, 339 Ga. App. 313, 793 S.E.2d 201 (2016).

Evidence showing that when the defendant's niece was 11 years old, the defendant forcibly inserted the defendant's penis into the niece's vagina, placed the defendant's penis on the niece's lips, and ejaculated on the niece's stomach was sufficient for a rational trier of fact to find the essential elements of rape, aggravated child molestation by act of sodomy, and incest between uncle and niece. Jones v. State, 343 Ga. App. 180, 806 S.E.2d 631 (2017), cert. denied, 2018 Ga. LEXIS 319 (Ga. 2018).

There was sufficient evidence of aggravated child molestation and incest, based on the defendant's act of sodomy, including testimony that the defendant, the victim's stepfather, tried to place the defendant's penis in the victim's mouth and the child fought the defendant off and the defendant's recorded admission to having the victim "go down on" the defendant once or twice, as well as the defendant's statement that the victim didn't like it and it didn't last long. Miranda v. State, 354 Ga. App. 777, 841 S.E.2d 440 (2020).

- See Woodford v. State, 240 Ga. App. 875, 525 S.E.2d 408 (1999); McMillian v. State, 263 Ga. App. 782, 589 S.E.2d 335 (2003).

- Trial court's order dismissing an indictment charging the defendant with rape, incest, aggravated child molestation, and child molestation on grounds that the state improperly failed to preserve lab samples taken from the victim was reversed because the defendant failed to show that the failure was the result of bad faith on the part of the state or the police, and the value of the sample to the defendant was only potentially exculpatory. State v. Brady, 287 Ga. App. 626, 653 S.E.2d 72 (2007).

Neither rape nor incest is included in the other as a matter of law. Kirby v. State, 187 Ga. App. 88, 369 S.E.2d 274 (1988).

- Rape and incestuous adultery are different in the nature of the wrong done and in the facts which constitute them. Neither includes the other, and the defendant may be convicted of either, with or without allegation or proof of some fact essential to the other. Mosley v. State, 65 Ga. App. 800, 16 S.E.2d 504 (1941).

Carnal knowledge of the female is a fact common to both rape and incestuous adultery. If it is with force and against her will the crime is rape, whether the female be under or over the age of consent and whether she be the defendant's daughter or not. The fact that she is his daughter is immaterial. If she is his daughter and under the age of consent, and the force, if any, used by the defendant was mere authority or influence, the crime is incestuous adultery; and the fact that the force used cannot be said to be that violence which constitutes rape is immaterial. Mosley v. State, 65 Ga. App. 800, 16 S.E.2d 504 (1941).

On facts, incest is included offense of statutory rape. McCranie v. State, 157 Ga. App. 110, 276 S.E.2d 263 (1981), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

- Evidence authorized the jury to find that more than one instance of sexual intercourse with the victim occurred, permitting conviction for each offense (rape and incest) based on separate occasions. Kirby v. State, 187 Ga. App. 88, 369 S.E.2d 274 (1988).

Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 in failing to argue at trial and on appeal that the inmate's statutory rape and incest convictions should have merged into the inmate's rape conviction as a matter of fact since all of the crimes arose out of the same incident as the crimes of statutory rape and incest were not established by proof of the same or less than all the facts required to establish the crime of rape; the inmate's convictions of statutory rape under O.C.G.A. § 16-6-3 and incest under O.C.G.A. § 16-6-22 were not included pursuant to O.C.G.A. § 16-1-6(1) in the rape conviction under O.C.G.A. § 16-6-1, as statutory rape, which required evidence as to the victim's age and that the victim was not the inmate's spouse, and incest, which required proof of the victim's relation to the inmate, had elements not required for rape. Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

- Defendant's child molestation in violation of O.C.G.A. § 16-6-4, rape in violation of O.C.G.A. § 16-6-1, and incest in violation of O.C.G.A. § 16-6-22 charges did not merge as a matter of law or fact because they were separate legal offenses and because the victim's testimony and other evidence showed that the victim suffered well over two separate acts of sexual intercourse and additional instances involving oral and anal sex with the defendant. Allen v. State, 281 Ga. App. 294, 635 S.E.2d 884 (2006).

- Contrary to the defendant's argument, the trial court did not err in failing to merge a conviction for incest, O.C.G.A. § 16-6-22, in one count into a conviction for rape, O.C.G.A. § 16-6-1, in another count, despite the fact that both counts were based on the same act of sexual intercourse because the defendant's conduct established the commission of more than one crime; to establish the crime of rape, the state proved that the defendant had carnal knowledge of the victim, forcibly and against the victim's will, but to establish incest, it was also necessary to prove that the victim had a certain relation to the defendant. Thus, incest was not established by proof of the same or less than all the facts required to establish proof of rape. Dew v. State, 292 Ga. App. 631, 665 S.E.2d 715 (2008).

Defendant's rape and incest convictions did not merge because each crime required proof of an additional fact that the other did not because, to establish the crime of rape, the state had to prove that the defendant lacked consent, which was not an element of incest; and, to establish the crime of incest, the state had to prove that the victim was of a certain relation to the defendant, which was not an element of rape; thus, the trial court did not err in sentencing the defendant for both rape and incest. Tinson v. State, 337 Ga. App. 83, 785 S.E.2d 914 (2016).

- Trial court did not err in failing to merge the conviction for incest and statutory rape because the crime of committing incest by having sexual intercourse with a niece was not established by proof of the same or fewer than all the facts required to establish statutory rape, and the offenses did not merge as a matter of law. Jones v. State, 333 Ga. App. 796, 777 S.E.2d 480 (2015).

Sentence

Sentence excessive.

- Sentences of 25 years each imposed by the trial court on the crimes of incest under former O.C.G.A. § 16-6-22(b) and aggravated sexual battery under former O.C.G.A. § 16-6-22.2(c) were void; the maximum sentence for each crime was 20 years at the time the crimes were committed. Howard v. State, 281 Ga. App. 797, 637 S.E.2d 448 (2006).

- Because the addendum to the defendant's sentence purported to impose restrictions upon the defendant's future parole, if granted, the sentence was a nullity; however, in light of the testimony and the nature of the offense of which the defendant was convicted, incest, the conditions of probation imposed were reasonable and were not vague or overly broad because several of the conditions imposed were specifically mandated by O.C.G.A. § 42-1-12, and even if the trial court had not specifically imposed sex offender registration as a condition of probation, the defendant was nonetheless required by statute to so register. Stephens v. State, 305 Ga. App. 339, 699 S.E.2d 558 (2010).

- Trial court erred in sentencing the defendant on two additional counts of incest because the acts alleged in Counts 5 and 6 were the same and both counts averred the exact dates of the offenses; thus, the state was required to make an election when the state charged the defendant with multiple counts of the same crime. Jones v. State, 333 Ga. App. 796, 777 S.E.2d 480 (2015).

- Pairs of counts of incest alleging sodomy and intercourse did not merge because one occurred before the victim was age 14 and one occurred after, and there were different penalties according to the victim's age. Torres v. State, 353 Ga. App. 470, 838 S.E.2d 137 (2020).

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Incest, § 1 et seq.

- 42 C.J.S., Incest, § 1 et seq.

- Relationship created by adoption as within statute prohibiting marriage between parties in specified relationships, or statute regarding incest, 151 A.L.R. 1146.

Consent as element of incest, 36 A.L.R.2d 1299.

Prosecutrix in incest case as accomplice or victim, 74 A.L.R.2d 705.

Incest as included within charge of rape, 76 A.L.R.2d 484.

Admissibility, in incest prosecution, of evidence of alleged victim's prior sexual acts with persons other than the accused, 97 A.L.R.3d 967.

Sexual intercourse between persons related by half blood as incest, 34 A.L.R.5th 723.

Admissibility of suicide note in criminal proceedings, 13 A.L.R.7th 6.