Appeal may affect laws

The Georgia Supreme Court hears arguments Tuesday in an Augusta case that could lead to another major change in the state's sex crimes laws.

The state's highest court agreed to hear Melissa L. Chase's appeal. The court grants such requests in only a small fraction of cases.

In Ms. Chase's case, the justices said each side should answer this question: Is consent a defense to a charge of sexual assault against a person enrolled in school?

In a Richmond County Superior Court bench trial in June 2007, Judge Carl C. Brown Jr. found Ms. Chase guilty of that charge. He imposed the mandatory minimum punishment, 10 years in prison.

Ms. Chase, now 31, was a Harlem High School teacher and coach who befriended her former student. The 16-year-old testified during the trial that she had pursued a relationship with Ms. Chase and that they had a single, consensual sexual encounter at Ms. Chase's Augusta home in November 2006.

Judge Brown ruled during the trial that Ms. Chase could not raise consent as a defense.

Although the girl was over the age of consent, the statute that criminalizes sexual contact between school personnel and students does not allow consent as a defense, Judge Brown ruled. The Georgia Court of Appeals affirmed that decision last year.

But Ms. Chase's appellant team of Victor Hawk and Melissa Detchemendy, and the Georgia Association of Criminal Defense Lawyers, which weighed in with an amicus brief, contend that interpretation of the law is wrong.

The statute Ms. Chase was convicted of violating has different sections.

It prohibits sexual contact between school personnel and students, between jail or prison employees and inmates, and between hospital or medical personnel and patients.

It also prohibits sexual contact between psychotherapists and their patients.

Ms. Chase's legal supporters point to the specific language in the law that eliminates "consent" as a defense when the accused is a guard, medical personnel or psychotherapist. It is not addressed in the section dealing with school personnel.

"If the Legislature wanted to restrict the defense of consent in all subsections it could have," Mr. Hawk wrote in the brief filed on behalf of Ms. Chase.

It makes sense that the Legislature would only want to eliminate such a defense in cases where the accused has a powerful physical or psychological control over the victim, the defense brief contends.

The state's brief counters that school personnel have access to children for a substantial and influential part of their lives. Allowing a consent defense would clearly be contrary to the public interest, Assistant District Attorney Charles Sheppard wrote in the state's brief.

"The state has an even greater responsibility in this regard as it pertains to students in the public school system since it has assumed direct custody and control over them for a significant portion of their young lives," the district attorney's brief says.

The Georgia Association of Criminal Defense Lawyers counters that the state's argument should be addressed by the General Assembly, not the courts.

"The question is whether it is rational to classify those who are enrolled in school ... one way in terms of their consent to sexual contacts and to classify those who are actually institutionalized in a prison or hospital (or who are subject to psychotherapy) another way. It is," the association contends.

The association raises the case of Powell v. State, the 1998 case in which the Georgia Supreme Court struck down the state's sodomy law, which criminalized the sex act even when consensual.

The protest against Ms. Chase's mandatory minimum sentence is similar to another landmark Supreme Court case.

Genarlow Wilson, a 17-year-old Douglas County, Ga., student, was convicted in 2005 of aggravated child molestation for having consensual oral sex with a 15-year-old girl.

In response to the case, the General Assembly changed the law in 2006 to make such willing conduct between teenagers a misdemeanor offense.

The change was not retroactive, however, and didn't apply to Mr. Wilson.

The Supreme Court overturned Mr. Wilson's conviction and mandatory 10-year prison sentence in October 2007 on the grounds it was cruel and unusual punishment.

Reach Sandy Hodson at (706) 823-3226 or sandy.hodson@augustachronicle.com.