Prior False Allegations Are Admissible in a Child Molestation

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You are accused with child molestation and your accuser has previously falsely accused another person of child molestation. Can you bring up these prior false accusations in your case? The answer is yes.

The Georgia Supreme Court held in State v. Burns, that a defendant in a child molestation prosecution may bring up evidence that the alleged victim has previously made false accusations of child molestation. This evidence is admissible to attack the credibility of the victim and show that the current charges did not occur.

In this case, James Burns was charged with aggravated sexual battery, aggravated sodomy, and incest. It was discovered that the alleged victim had made up a prior rape allegation.

The Rape Shield Statute of Georgia does not prohibit testimony of previous false allegations by a victim. This is because prior false accusations establish that the victim has a propensity to make false statements regarding sexual misconduct. The Rape Shield Statute in Georgia is designed to prohibit bringing up the victim’s past sexual conduct. But it does not protect the victim in cases where a false allegation was made.

A criminal defendant has a Sixth Amendment right to make a full defense. A defendant has the right to bring up prior false allegations where it can be shown that the allegation was indeed false. The Sixth Amendment also grants the defendant the right of confrontation. This includes the right to physically face the person who is testifying against him and the right to conduct a thorough cross-examination. A defendant is guaranteed the opportunity for effective cross-examination.

In addition, the due process clause of the Fourteenth Amendment guarantees a criminal defendant a meaningful opportunity to present a complete defense. The defendant does not have a right to offer any testimony that is either privileged, irrelevant or excluded under the rules of evidence. However, if the defendant has evidence of a prior false allegation of the alleged victim then it is admissible in order to protect the integrity of the trial.

In State v. Burns, the Georgia Supreme Court has made a bright line rule that prior false allegations are admissible, regardless of other rules of evidence.

If you are charged with aggravated child molestation, child molestation, sexual battery, rape or any other sexual offense in Georgia, it is imperative that you aggressively defend yourself and learn everything you can about the alleged victim. If the alleged victim in your case has ever made up an allegation against any other person, you must use this information to your advantage when confronting your accuser in court.

If you are charged with any sexual offense in Georgia, please contact us at 404-581-0999

My loved one has been arrested for a felony in Fulton County, what happens now?

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Everyone arrested for a felony within Fulton County will be taken to the Fulton County Jail or Rice Street to be booked in. After someone is booked, they will be scheduled for First Appearance, typically the next day. The purpose of First Appearance is to inform you of the charges and set a bond. First Appearance is heard by a Magistrate Court judge.

There are four factors that the judge will consider when setting or denying a bond. The factors are that the accused 1) is not a risk of fleeing the jurisdiction or failing to appear in court, 2) doesn’t pose a significant danger to any person or the community, 3) isn’t a risk of committing a new felony, and 4) is not a threat to intimidate witnesses or otherwise obstruct justice. The judge will also take the person’s criminal history, any history of failing to appear in court, and the nature of the allegations into account when considering bond. Bond may be denied based on the type of charge. There are certain crimes – e.g. murder, armed robbery, sex crimes, etc. – that can only be heard by a Superior Court judge.

If bond was denied and your loved one is still incarcerated, they are entitled to a preliminary or probable cause hearing. This is when the State has to bring witnesses to prove the allegations by a probable cause standard or that there is a reasonable belief that the accused committed the alleged act. It is very important to have an experienced advocate to cross-examine and challenge the State’s witnesses and evidence.

If your loved one has been arrested for a felony in Fulton County, please give us a call at 404-581-0999 for a free consultation.

Clayton County Sexual Battery

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Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. When convicted of sexual battery against someone over 16 years old, the State of Georgia considers it a felony offense carrying one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

There are defenses to Sexual Battery in Clayton County and throughout Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in Cobb County or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

Sexual Battery in Fulton County

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If you are arrested for Sexual Battery in Fulton County, please do not make any statements to the police. You will be brought over to court the following morning after your arrest and a Fulton Magistrate Court judge will consider bond.

A person commits the offense of sexual battery when he intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.

How does the law define intimate parts? It is defined as the primary genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female.

The intent to do the act is a question of fact for the jury to decide.

Whether there is a conflict in the evidence of whether the victim voluntarily submitted to the contact, it is for a jury to decide that conflict in testimony.

Sexual battery does not require any sexual contact. It only requires the non-consensual, intentional physical contact with the victims’ intimate body parts.

Prior to 2021, an individual younger than 16 years old was legally incapable of consenting to sexual contact. In the case of Watson v. State, the Supreme Court construed the statute to require actual proof of the victim’s lack of consent, regardless of the victim’s age.

Sexual battery is punished as a misdemeanor of a high and aggravated nature. However, if the victim is under 16 years of age, it is punishable as a felony.

The rule of lenity does not apply between sexual battery and child molestation because child molestation requires additional proof of the defendant seeking to arouse his own sexual desires, which is not required for sexual battery. Furthermore, sexual battery requires proof of physical contact and the victims lack of consent, which are not required for the offense of child molestation.

If you are arrested for Sexual Battery in Fulton County, please give us a call at 404-581-0999.

Why the Peach State Lawyers Should Represent You

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The Law Office of W. Scott Smith, PC is a firm of devoted criminal defense attorneys with decades of combined experience whose professionalism, skill, and knowledge make them the perfect firm to zealously advocate for you. This team is not just made up of great attorneys and staff, but great people, too.

Sherdia is our courteous, organized, and hardworking paralegal. She is reliable and efficient, and is truly the powerhouse behind the entire operation. She works diligently to make sure that clients are well taken care of, and is an effective liaison between clients and attorneys when you need quick assistance. She is a joy to know and work with, and a true blessing in the office.

King is our billing manager. He is mindful and empathetic to client billing needs. He will work with you to make sure that your payment plan works for your lifestyle and ensure that you receive the highest caliber of quality (and affordability) in your representation by the Peach State firm.

Beth is our calendar clerk and law student intern. Her organization and focus ensures that at your Court dates, your attorney is present and prepared to give you the best defense and advice. On the very date of this posting (12/15/23), she graduated from law school and it won’t be long before she is in a courtroom fighting for you. Congratulations, Beth.
Marybeth is one of our experienced associate attorneys. She spent several years zealously advocating for indigent folks in the Fulton County Public Defender’s Office, and since joining our firm, has continued to extend the same grace and compassion to her clients that inspired us to bring her aboard in the first place. She works tirelessly for her clients, and if she represents you, you can rest assured that you will receive knowledgeable and empathetic counsel.

Mary is another one of our distinguished associates. She is loveably referred to as a “bulldog” for her passionate and zealous presence in the Courtroom. She has a reputation for being tireless and hard working, and willing to do whatever it takes to represent her clients. Although she may be a bulldog in the Courtroom, she is cherished by her clients who see her as their devoted champion, skilled advocate, and friend.

Erin is our last (but certainly not least) associate attorney. Although she may be a young attorney, her skill, tact, and knowledge of the law puts her in a league all her own. She walks into a courtroom and can outshine attorneys with decades more experience because of her professionalism, courtesy, insight, and courage to fight for her clients. Her clients know her as a counselor who is dependable, hard working, and compassionate. She is an extraordinary attorney, and an even better friend.

Mike and Scott are the partners of Peach State Law. They are passionate and distinguished attorneys with the skill and knowledge to back up their commendable reputations. They advocate for clients charged with the most heinous of crimes, and when they do, they make it look easy. Their finesse in commanding a Courtroom is a talent eclipsed only by their devotion to their associates and staff. They are the best mentors this attorney could have asked for.

And why should you believe me? Because I had the opportunity, the privilege, even, to get to know each and every one of them as an associate attorney myself. I have grown to know and learn from each of them in kind, and they have made me a better attorney and a better person. There is no firm more devoted, hardworking, or knowledgeable in Georgia. This firm is made up of a team that values, above all else, their clients and doing the hard and courageous job of defending the Constitution. Their commitment to you will be unwavering, their diligence and devotion to your defense will be their number one priority. You simply could not ask for more from a law firm, and this attorney could not have asked for more from this family. When you are evaluating your options for legal representation, believe me when I say that these are the good people you want behind you, counseling you, and guiding you. Take it from someone who knows.

Cobb County Sexual Battery

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Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. When convicted of sexual battery against someone over 16 years old, the State of Georgia considers it a felony offense carrying one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

There are defenses to Sexual Battery in Cobb County and throughout Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in Cobb County or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

Aggravated Child Molestation in Douglas County

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Aggravated Child Molestation is a serious crime in the State of Georgia. In fact, it is the worst crime that one can be accused of committing. It is imperative that you retain a qualified attorney immediately if you are being accused of aggravated child molestation in Douglas County. Many allegations of aggravated child molestation are false. Even if you know the allegation of aggravated child molestation against you is made up, you still must take it very seriously and aggressively defend yourself. All it takes is the word of the child, if believed, to convict you.

If you are arrested, do not talk to the police. You will be taken to the Douglas County jail and you will be on the first appearance calendar the following day.

O.C.G.A. § 16-6-4 defines aggravated child molestation as follows:

A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which physically injures the child or involves an act of sodomy.

If the alleged victim was physically injured then it is not necessary for the state to prove sodomy.

It must be shown that the alleged victim was under 16 at the time of the act in order to be charged with aggravated child molestation.

Penetration or force is not a requirement of aggravated child molestation. The victim’s testimony that it was painful is sufficient to prove physical injury and no medical evidence is required to corroborate.

If you are convicted of aggravated child molestation in Douglas County, then the sentence will either be life imprisonment or a split sentence of a mandatory minimum of 25 years imprisonment and probation for life. The defendant will also have to be placed on the sex offender registry for life.

If someone is making an allegation of aggravated child molestation against you, it is imperative that you do not talk to the police, do not talk to the person who is accusing you of aggravated child molestation and call us. Time is of the essence to properly investigate the allegations.

Do not wait until the Douglas County District Attorney actually returns an indictment against you before seeking an attorney. Child Molestation cases can be proven solely on the victim’s own testimony. Therefore, it is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

DeKalb Sexual Battery Attorney

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Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. When convicted of sexual battery against someone over 16 years old, the State of Georgia considers it a felony offense carrying one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

There are defenses to Sexual Battery in Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in DeKalb County or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

Sodomy in Clayton County

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Sodomy is a serious crime in Clayton County.  O.C.G.A. § 16-6-2 established two separate criminal offenses. O.C.G.A. §16-6-2(a)(1) defines sodomy as the performance of or submission to a sexual act involving the sex organs of one person and the mouth or anus of another. O.C.G.A. § 16-6-2(a)(2) defines aggravated sodomy  as the commission of sodomy with force and against the will of the other person involved or with a person who is less than ten years of age.

The offense of aggravated sodomy protects individuals from violent acts where the offense of sodomy punishes consensual sexual behavior.

For sodomy, all that is required is contact between the sex organs of one person and the mouth or anus of another person. Proof of penetration is not required in a sodomy case unless is specifically listed in the indictment. Whether there was prohibited contact between the defendant and alleged victim is solely a question for a jury.

No corroboration is required in a sodomy case.

Aggravated Sodomy is different than Sodomy. In order to make out a case for Aggravated Sodomy, the State must show that the contact was made both with force and against the will or without the consent of the alleged victim. The standard of proof is the same as required for a rape case. Both the words and actions of the accused can be used to determine if the alleged victim was in reasonable apprehension of bodily harm.

O.C.G.A. § 16-6-15 prohibits the solicitation of sodomy. Solicitation of sodomy is defined as soliciting another individual to perform to a sexual act involving the sex organs of one and the mouth or anus of another and such act is to be performed in public in exchange for money or anything of value or by force or by or with an individual who is incapable of giving legal consent to sexual activity. In order to be convicted of solicitation of sodomy, the State must be present sufficient evidence of all three elements of the crime.

If you are convicted of sodomy, it is a felony punishable by not less than one nor more than twenty years in prison and is subject to the sentencing provisions of § 17-10-6.2 which requires the sexual offender to receive a split sentence including the minimum sentence of imprisonment.

Aggravated Sodomy is also a felony and is punishable by either life imprisonment or by a split sentence of imprisonment for not less than 25 years and probation for life.

Solicitation of sodomy is a misdemeanor. However if the solicitation is of someone under 18 years of age or the solicitation is for money then it is felony punishable of not less than 5 nor more than 20 years in prison.

If the victim is at least 13 years old but less than 16 years of age and the person convicted of sodomy is 18 years of age or younger and is no more than 4 years older than the victim, then the accused would be guilty of a misdemeanor and would not be subject to the sentencing provision of O.C.G.A. §17-10-6.2.

If you are arrested in Clayton County for sodomy or aggravated sodomy, you will be in the Clayton County jail. You will be on the first appearance calendar the next morning at the Clayton County jail at 11:30am. After that date, you will be a preliminary hearing in Clayton County Magistrate Court.

Once your case is indicted, it will be transferred to Clayton County Superior Court for trial.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Atlanta Sexual Battery Attorney

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Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. When convicted of sexual battery against someone over 16 years old, the State of Georgia considers it a felony offense carrying one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

There are defenses to Sexual Battery in Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in Atlanta or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.