510 S.E.2d 18 (1998) 270 Ga. 327

POWELL
v.
The STATE.

No. S98A0755.

Supreme Court of Georgia.

November 23, 1998. Reconsideration Denied December 17, 1998.

*20 Brenda Joy Bernstein, Steven H. Sadow, Atlanta, for Anthony San Juan Powell.

Pamela Danette South, Asst. Dist. Atty., Daniel J. Porter, Dist. Atty., Lawrenceville, for the State.

Amicus Appellee: Thurbert E. Baker, Atty. Gen., Michael E. Hobbs, Asst. Atty. Gen., Department of Law, Atlanta.

Amicus Appellant: Stephen Randall Scarborough, Lambda Legal Def./Educ. Fund, Inc., Atlanta, Kelly S. Brown.ö

*19 BENHAM, Chief Justice.

Anthony San Juan Powell was charged in an indictment with rape and aggravated sodomy in connection with sexual conduct involving him and his wife's 17-year-old niece in Powell's apartment. The niece testified that appellant had sexual intercourse with her and engaged in an act of cunnilingus without her consent and against her will. Powell testified and admitted he performed the acts with the consent of the complainant. In light of Powell's testimony, the trial court included in its jury charge instructions on the law of sodomy. The jury acquitted Powell of the rape and aggravated sodomy charges and found him guilty of sodomy, thereby establishing that the State did not prove beyond a reasonable doubt that the act was committed "with force and against the will" of the niece. See OCGA § 16-6-2(a). Powell brings this appeal contending the statute criminalizing acts of sodomy committed by adults without force in private is an unconstitutional intrusion on the right of privacy guaranteed him by the Georgia Constitution. Powell also contends that the trial court erred when it offered the jury the opportunity to consider the unindicted charge of sodomy by sua sponte instructing the jury on the law of sodomy.

1. In keeping with the well-established principle that this Court will not decide a constitutional question if the appeal can be decided upon other grounds (Bd. of Tax Assessors v. Tom's Foods, 264 Ga. 309, 310, 444 S.E.2d 771 (1994)), we first address the non-constitutional issues raised by the appeal. The first issue is the sufficiency of the evidence. OCGA § 16-6-2(a) defines sodomy as the performance of or submission to "any sexual act involving the sex organs of one person and the mouth or anus of another." Appellant's admission at trial that he placed his mouth upon the genitalia of his wife's niece, as well as the niece's testimony similarly describing appellant's conduct, constitutes sufficient evidence to authorize a rational trier of fact to conclude beyond a *21 reasonable doubt that appellant committed sodomy. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Carter v. State, 122 Ga.App. 21(4), 176 S.E.2d 238 (1970), overruled on other grounds in Hines v. State, 173 Ga.App. 657(2), 327 S.E.2d 786 (1985).

2. Appellant next contends that the trial court erred when, without request by the State or appellant, it instructed the jury on the law of sodomy and permitted the fact-finder to return a verdict on that included charge.

In State v. Stonaker, 236 Ga. 1, 2, 222 S.E.2d 354 (1976), this Court set forth rules "to clarify for the trial courts what must be charged and what may be charged and what need not be charged in the area of lesser included crimes in criminal trials." The second rule stated that the trial court could, "of [its] own volition and in [its] discretion, charge on a lesser crime of that included in the indictment and accusation." Id.; Rodriguez v. State, 211 Ga.App. 256(2), 439 S.E.2d 510 (1993). Thus, when the evidence authorizes a charge on an offense included in the offense for which the defendant is being tried, the trial court is authorized to instruct the jury on the included offense sua sponte. Alford v. State, 200 Ga.App. 483, 484, 408 S.E.2d 497 (1991). Sodomy is an offense included in the crime of aggravated sodomy (Stover v. State, 256 Ga. 515(2), 350 S.E.2d 577 (1986)), and the evidence summarized in Division 1 authorized a charge on the law of sodomy as an included offense. Accordingly, the trial court acted within the Stonaker framework when it exercised its discretion and instructed the jury on the included offense of sodomy.

3. Lastly, we address appellant's constitutional challenge to OCGA § 16-6-2(a). In so doing, we are mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation "manifestly infringes upon a constitutional provision or violates the rights of the people.... [Cit.]" Miller v. State, 266 Ga. 850(2), 472 S.E.2d 74 (1996). Appellant contends that the statute criminalizing intimate sexual acts performed by adults in private and without force impermissibly infringes upon the right of privacy guaranteed all Georgia citizens by the Georgia Constitution.^[1]

The right of privacy has a long and distinguished history in Georgia. In 1905, this Court expressly recognized that Georgia citizens have a "liberty of privacy" guaranteed by the Georgia constitutional provision which declares that no person shall be deprived of liberty except by due process of law. Pavesich v. New England Life Ins., 122 Ga. 190, 197, 50 S.E. 68 (1905). The Pavesich decision constituted the first time any court of last resort in this country recognized the right of privacy (Katz, The History of the Georgia Bill of Rights, 3 GSU L.Rev. 83, 118 (1986); Gouldman-Taber Pontiac v. Zerbst, 213 Ga. 682, 100 S.E.2d 881 (1957)), making this Court a pioneer in the realm of the right of privacy. Bodrey v. Cape, 120 Ga.App. 859, 866, 172 S.E.2d 643 (1969). See also Cox Broadcasting Corp. v. Cohn, 231 Ga. 60, 200 S.E.2d 127 (1973), rev'd 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), where this Court proudly noted that the right of privacy "was birthed by this court" in Pavesich. Since that time, the Georgia courts have developed a rich appellate jurisprudence in the right of privacy which recognizes the right of privacy as a fundamental constitutional right, "having a value so essential to individual liberty in our society that [its] infringement merits careful scrutiny by the *22 courts." Ambles v. State, 259 Ga. 406(2)(b), 383 S.E.2d 555 (1989).

In Pavesich, the Court found the right of privacy to be "ancient law," with "its foundation in the instincts of nature[,]" derived from "the Roman's conception of justice" and natural law, making it immutable and absolute. Id., at 194, 50 S.E. 68. The Court described the liberty interest derived from natural law as "embrac[ing] the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common good." Id., at 195, 50 S.E. 68. "Liberty" includes "the right to live as one will, so long as that will does not interfere with the rights of another or of the public" (id., at 196, 50 S.E. 68), and the individual is "entitled to a liberty of choice as to his manner of life, and neither an individual nor the public has the right to arbitrarily take away from him his liberty." Id., at 197, 50 S.E. 68. The Pavesich Court further recognized that the "right of personal liberty" also embraces "[t]he right to withdraw from the public gaze at such times as a person may see fit, when his presence in public is not demanded by any rule of law...." Id. Stated succinctly, the Court ringingly endorsed the "right `to be let alone' so long as [one] was not interfering with the rights of other individuals or of the public." Id.^[2]

In the ensuing years since Pavesich was decided and Georgia's right of privacy recognized, the Georgia appellate courts have expounded on the right of privacy, describing it as protection for the individual from unnecessary public scrutiny (Athens Observer v. Anderson, 245 Ga. 63, 263 S.E.2d 128 (1980)); as the right of the individual "to be free from... the publicizing of one's private affairs with which the public has no legitimate concern" (Gouldman-Taber Pontiac v. Zerbst, supra, 213 Ga. at 683, 100 S.E.2d 881); "the right to define one's circle of intimacy" (Macon-Bibb County &c. Auth. v. Reynolds, 165 Ga.App. 348, 350, 299 S.E.2d 594 (1983)); and the right "to be free of unwarranted interference by the public about matters [with] which the public is not necessarily concerned, or to be protected from any wrongful intrusion into an individual's private life which would outrage ... a person of ordinary sensibilities." Georgia Power Co. v. Busbin, 149 Ga.App. 274(6), 254 S.E.2d 146 (1979). This Court has determined that a citizen's right of privacy is strong enough to withstand a variety of attempts by the State to intrude in the citizen's life. In Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715 (1982), the Court ruled that the State's assertion of a duty to protect a prisoner's health and its interest in preserving human life did not amount to the compelling state interest which could override a sane state prisoner's refusal to eat or submit to medical treatment for the effects of starvation. In State of Georgia v. McAfee, 259 Ga. 579, 385 S.E.2d 651 (1989), the Court again ruled that a citizen's constitutional right of privacy and liberty under which he refused medical treatment was not outweighed by any interest the State might have in the preservation of life. In Harris v. Cox Enterprises, 256 Ga. 299, 302, 348 S.E.2d 448 (1986), Georgia's strong public policy in favor of open government was required to bend in favor of the individual's right of privacy when matters about which the public had no legitimate concern were at issue. It is clear from the right of privacy appellate jurisprudence which emanates from Pavesich that the "right to be let alone" guaranteed by the Georgia Constitution is far more extensive that the right of privacy protected by the U.S. Constitution, which protects only those matters "deeply rooted in this Nation's history and tradition" or which are "implicit in the concept of ordered liberty...." Bowers v. Hardwick, 478 U.S. 186, 191-92, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986).^[3]

*23 While Georgia citizens' right to privacy is far-reaching, that is not to say that the individual's right to privacy is without limitation. The Pavesich court recognized that the right could be waived by the individual (122 Ga. at 199, 50 S.E. 68); could be subsumed when the individual was required to "perform public duties ..." (Id., at 196, 50 S.E. 68), and had to yield "in some particulars... to the right of speech and of the press." Id., at 204, 50 S.E. 68. See also Cox v. Brazo, 165 Ga.App. 888, 303 S.E.2d 71 (1983) (individual has no right of privacy in information published by another when individual had publicized the information); Cabaniss v. Hipsley, 114 Ga.App. 367, 151 S.E.2d 496 (1966) (exotic dancer has no right of privacy in a photo which she had permitted others to use for publicity purposes); Cummings v. Walsh Constr. Co., 561 F.Supp. 872 (S.D.Ga.1983) (under Georgia law, a supervisor does not violate a woman's right of privacy by telling co-workers of their affair when the woman had told other co-workers of the relationship). Nor will an individual's right of privacy serve as the basis for liability against one who publishes facts which are a matter of public record (Reece v. Grissom, 154 Ga.App. 194, 267 S.E.2d 839 (1980)), or against one who publishes photographs of the subject matter of a public investigation. Waters v. Fleetwood, 212 Ga. 161, 91 S.E.2d 344 (1956). See also Tucker v. News Pub. Co., 197 Ga.App. 85(1), 397 S.E.2d 499 (1990) (publication of information connected with a matter of public interest or a public investigation does not violate the right of privacy). Through the appeals of defendants convicted of sexual assault who have asserted the constitutional right of privacy on appeal, we have ruled that a defendant may not successfully assert a privacy right when the acts are committed: in a public place (Stover v. State, supra, 256 Ga. 515(1), 350 S.E.2d 577); in exchange for money (Ray v. State, 259 Ga. 868(3), 389 S.E.2d 326 (1990)); or with those legally incapable of consenting to sexual acts. Id.; Richardson v. State, 256 Ga. 746(2), 353 S.E.2d 342 (1987).^[4]

Today, we are faced with whether the constitutional right of privacy screens from governmental interference a non-commercial sexual act that occurs without force in a private home between persons legally *24 capable of consenting to the act. While Pavesich and its progeny do not set out the full scope of the right of privacy in connection with sexual behavior, it is clear that unforced sexual behavior conducted in private between adults is covered by the principles espoused in Pavesich since such behavior between adults in private is recognized as a private matter by "[a]ny person whose intellect is in a normal condition...." Pavesich, supra, at 194, 50 S.E. 68. Adults who "withdraw from the public gaze" (id., at 196, 50 S.E. 68), to engage in private unforced sexual behavior are exercising a right "embraced within the right of personal liberty." Id. We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than unforced, private, adult sexual activity. See Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (Mont.1997); Campbell v. Sundquist, 926 S.W.2d 250 (Tenn.App.1996); State v. Morales, 826 S.W.2d 201 (Tex.App.1992), rev'd on other grounds, 869 S.W.2d 941 (Tex.1994). We conclude that such activity is at the heart of the Georgia Constitution's protection of the right of privacy.

Having determined that appellant's behavior falls within the area protected by the right of privacy, we next examine whether the government's infringement upon that right is constitutionally sanctioned. As judicial consideration of the right to privacy has developed, this Court has concluded that the right of privacy is a fundamental right (Ambles v. State, supra, 259 Ga. 406(b), 383 S.E.2d 555) and that a government-imposed limitation on the right to privacy will pass constitutional muster if the limitation is shown to serve a compelling state interest and to be narrowly tailored to effectuate only that compelling interest. Phagan v. State, 268 Ga. 272(1), 486 S.E.2d 876 (1997); Zant v. Prevatte, supra, 248 Ga. at 833-34, 286 S.E.2d 715. But see Christensen v. State, 266 Ga. 474(2)(a), 468 S.E.2d 188 (1996), where the Court's plurality opinion employed the "legitimate state interest" yardstick to measure the State's limitation on the defendant's asserted right of privacy.^[5] Implicit in our decisions curtailing the assertion of a right to privacy in sexual assault cases involving sexual activity taking place in public, performed with those legally incapable of giving consent, performed in exchange for money, or performed with force and against the will of a participant, is the determination that the State has a role in shielding the public from inadvertent exposure to the intimacies of others, in protecting minors and others legally incapable of consent from sexual abuse, and in preventing people from being forced to submit to sex acts against their will. The State fulfills its role in preventing sexual assaults and shielding and protecting the public from sexual acts by the enactment of criminal statutes prohibiting such conduct: OCGA § 16-6-1 (rape); § 16-6-2(a) (aggravated sodomy); § 16-6-3 (statutory rape); § 16-6-4 (child molestation and aggravated child molestation); § 16-6-5 (enticing a child for indecent purposes); § 16-6-5.1 (sexual assault of prisoners, the institutionalized, and the patients of psychotherapists); § 16-6-6 (bestiality); § 16-6-7 (sexual assault of a dead human being); § 16-6-8 (public indecency); §§ 16-6-9—16-6-12 (prostitution, pimping, pandering); § 16-6-15 (solicitation of sodomy); § 16-6-16 (masturbation for hire); § 16-6-22 (incest); §§ 16-6-22.1 and 16-6-22.2 (sexual battery and aggravated sexual battery), and by the vigorous enforcement of those laws through the arrest and prosecution of offenders. In light of the existence of these statutes, the sodomy statute's raison d'etre can only be to *25 regulate the private sexual conduct of consenting adults, something which Georgians' right of privacy puts beyond the bounds of government regulation.

Citing Christensen, supra, 266 Ga. 474, 468 S.E.2d 188, the State reminds us that the plurality decision therein held that the proscription against sodomy was a valid exercise of the State's police power in furtherance of the public's moral welfare, and that the Georgia Constitution did not deny the General Assembly the right to prohibit such conduct. "Police power" is the governing authority's ability to legislate for the protection of the citizens' lives, health, and property, and to preserve good order and public morals. Hayes v. Howell, 251 Ga. 580(2)(b), 308 S.E.2d 170 (1983); Ward v. State, 188 Ga.App. 372(1), 373 S.E.2d 65 (1988). "To justify the State in thus interposing its authority in behalf of the public, it must appear, first that the interests of the public generally ... require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals." Lawton v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499, 38 L.Ed. 385 (1894). Stated another way, the legislation must serve a public purpose and the means adopted to achieve the purpose must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon the persons regulated. Cannon v. Coweta County, 260 Ga. 56(2), 389 S.E.2d 329 (1990). In recent years, legislative bodies in Georgia have exercised the "police power" to combat the negative effects of the combination of alcohol and nude dancing (Goldrush II v. City of Marietta, 267 Ga. 683, 482 S.E.2d 347 (1997)); to limit land usage through zoning restrictions (Cannon v. Coweta County, supra, 260 Ga. 56, 389 S.E.2d 329); to regulate the health professions (Foster v. Ga. Bd. of Chiropractic Examiners, 257 Ga. 409(14), 359 S.E.2d 877 (1987)); and to impose reasonable regulations on the establishment and operation of cemeteries. Arlington Cemetery Corp. v. Bindig, 212 Ga. 698(2), 95 S.E.2d 378 (1956). That the legislative body has determined that it is properly exercising its police powers "is not final or conclusive, but is subject to the supervision of the courts." Lawton v. Steele, supra, 152 U.S. at 137, 14 S.Ct. 499. Thus, the suggestion that OCGA § 16-6-2 is a valid exercise of the police power requires us to consider whether it benefits the public generally without unduly oppressing the individual. Since, as determined earlier, the only possible purpose for the statute is to regulate the private conduct of consenting adults, the public gains no benefit, and the individual is unduly oppressed by the invasion of the right to privacy. Consequently, we must conclude that the legislation exceeds the permissible bounds of the police power. See Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47, 49-50 (Pa.1980).

The State also maintains that the furtherance of "social morality," giving "due regard to the collective will of the citizens of Georgia," is a constitutional basis for legislative control of the non-commercial, unforced, private sexual activity of those legally capable of consenting to such activity. It is well within the power of the legislative branch to establish public policy through legislative enactment. It is also without dispute that oftentimes the public policy so established and the laws so enacted reflect the will of the majority of Georgians as well as the majority's notion of morality. However, "it does not follow ... that simply because the legislature has enacted as law what may be a moral choice of the majority, the courts are, thereafter, bound to simply acquiesce." Gryczan v. State, supra, 942 P.2d at 125 (where the Supreme Court of Montana ruled that private consensual, noncommercial sexual conduct is protected by Montana's constitutional right of individual privacy). "Social morality legislation," like any legislative enactment, is subject to the scrutiny of the judicial branch under our tripartite system of "checks and balances." See Cantrell v. State of Ga., 129 Ga.App. 465, 200 S.E.2d 163 (1973).

In undertaking the judiciary's constitutional duty, it is not the prerogative of members of the judiciary to base decisions on their personal notions of morality. Indeed, if we were called upon to pass upon the propriety of the conduct herein involved, we would not condone it. Rather, the judiciary is charged with the task of examining a legislative enactment when it is alleged to *26 impinge upon the freedoms and guarantees contained in the Georgia Bill of Rights and the U.S. Constitution, and scrutinizing the law, the interests it promotes, and the means by which it seeks to achieve those interests, to ensure that the law meets constitutional standards. While many believe that acts of sodomy, even those involving consenting adults, are morally reprehensible, this repugnance alone does not create a compelling justification for state regulation of the activity. Post v. State, 715 P.2d 1105, 1109 (Okla.Cr.App.) cert. denied 479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986) (where the Oklahoma appellate court held that a statute violated the federal right of privacy when applied to "non-violent consensual activity between adults in private"). See also Campbell v. Sundquist, supra, 926 S.W.2d at 266; Commonwealth v. Wasson, supra, 842 S.W.2d at 498; Commonwealth v. Bonadio, supra, 415 A.2d at 50 (where appellate courts in Tennessee, Kentucky, and Pennsylvania concluded that "no sufficient state interest justifies legislation of norms simply because a particular belief is followed by a number of people, or even a majority."^[6]) We agree with our fellow jurists that legislative enactments setting "social morality" are not exempt from judicial review testing their constitutional mettle.

We conclude that OCGA § 16-6-2, insofar as it criminalizes the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent, "manifestly infringes upon a constitutional provision" (Miller v. State, supra, 266 Ga. 850(2), 472 S.E.2d 74) which guarantees to the citizens of Georgia the right of privacy. Appellant was convicted for performing an unforced act of sexual intimacy with one legally capable of consenting thereto in the privacy of his home. Accordingly, appellant's conviction for such behavior must be reversed.

Judgment reversed.

All the Justices concur, except CARLEY, J., who dissents.

SEARS, Justice, concurring.

In broad terms, the dissent urges that once the legislature criminalizes any activity, courts are forbidden from passing on the "wisdom" of such laws.^[7] Otherwise, the dissent foretells that "anarchy" will reign.^[8] In making these statements, the dissent mischaracterizes the majority opinion. In this opinion, this Court in no way usurps the legislative function of promulgating social policy. Rather, in an inspired opinion, a majority of this Court today has fulfilled its constitutional responsibility within the American tripartite system of checks and balances. As well stated in the majority opinion, merely because the legislature has enacted a law which may impact upon the public's moral choices, courts are not "bound to simply acquiesce."^[9] It is the duty of this Court, and all courts, to ensure that, absent a compelling state interest, legislative acts do not impinge upon the inalienable rights guaranteed by our State Constitution. The dissent would default on its constitutional duty to protect these rights, and would defer instead to what it believes to be the moral choice of a majority.^[10] Yet, it is the very definition of a constitutional right that it cannot be made wholly subject to the will of the majority.^[11] Otherwise, *27 the principles that serve as bedrock for our Federal and State Bill of Rights will be reduced to mere rhetoric.

This nation was founded upon a great moral precept—that all persons are entitled to the free exercise of their liberty, which:

[E]mbraces the right of a [person] to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. Liberty includes the right to live as one will, so long as that will does not interfere with the rights of another or of the public.... All are entitled to liberty of choice as to his manner of life, and neither an individual nor the public has a right to arbitrarily take away from him his liberty.^[12]

The individual's right to freely exercise his or her liberty is not dependent upon whether the majority believes such exercise to be moral, dishonorable, or wrong. Simply because something is beyond the pale of "majoritarian morality" does not place it beyond the scope of constitutional protection. To allow the moral indignation of a majority (or, even worse, a loud and/or radical minority) to justify criminalizing private consensual conduct would be a strike against freedoms paid for and preserved by our forefathers. Majority opinion should never dictate a free society's willingness to battle for the protection of its citizens' liberties. To allow such a thing would, in and of itself, be an immoral and insulting affront to our constitutional democracy.

There will, of course, be those who will criticize today's decision, and who may even seek to demonize some members of this Court for their legal analysis. This pattern of personally attacking and pillorying individuals who disagree with certain positions, rather than engaging in constructive ideological discourse with them, has regrettably become more and more prevalent in our culture. Those who would make such personal attacks, however, do not fully appreciate that all of my colleagues, those who agree with the majority as well as those who dissent, are honorable and decent jurists who struggle to fulfill their constitutional responsibilities to the people of this State.

Today, a majority of this Court fulfills its duties with a clearheaded and courageous decision. I fully concur with it.

CARLEY, Justice, dissenting.

"The responsibility of this Court ... is to construe and enforce the Constitution and laws of the [State] as they are and not to legislate social policy on the basis of our own personal inclinations." Evans v. Abney, 396 U.S. 435, 447, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970). The issue in this case is not whether private and consensual acts of sodomy should be legal or illegal in Georgia, because that question has already been resolved by the General Assembly. Under the unambiguous provisions of OCGA § 16-6-2(a), commission of an act of sodomy is against the criminal law of this state, and performance of such an act in private between consenting adults is not exempted from that statutory prohibition. Therefore, the only issue presented for decision is whether the General Assembly has the constitutional authority to prohibit such conduct. This Court is not authorized to impede the State's unrestricted enforcement of OCGA § 16-6-2(a) unless that statute manifestly impinges upon a constitutional right of adults to perform consensual sodomy in private. See Bohannon v. State, 269 Ga. 130, 131(2), 497 S.E.2d 552 (1998). Clearly, Powell has no right under the federal constitution to engage in the act proscribed by OCGA § 16-6-2(a), since there is no fundamental right under the Constitution of the United States to engage in consensual sodomy. "Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights." Bowers v. Hardwick,