In re C. P.

Supreme Court of Georgia

In re C. P.

555 S.E.2d 426, 274 Ga. 599

CourtSupreme Court of Georgia

DecidedNovember 5, 2001

DocketS01A0748

StatusPublished

Cited by4 cases

This text of 555 S.E.2d 426 (In re C. P.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re C. P., 555 S.E.2d 426, 274 Ga. 599 (Ga. 2001).

Pincite

Opinion

Benham, Justice.

C. P., age 14, is the subject of a petition filed in juvenile court alleging C. P. is a delinquent/unruly child¹ because C. P. is unmarried and engaged in an act of sexual intercourse in a stall in a restroom in a local high school. C. P. sought to quash the petition on two grounds: that the petition failed to set out a specific violation of Georgia law in that the fornication statute underlying the petition, OCGA § 16-6-18, [600]*600is an unconstitutional violation of a citizen’s “liberty of privacy” (1983 Ga. Const., Art. I, Sec. I, Par. I); and that it is unconstitutional to use as the offense underlying a petition for delinquency an act that would be protected activity if committed by an adult.² The juvenile court denied C. P.’s motion to quash and issued a certificate of immediate review. C. P. then filed in this Court an application for interlocutory review, which we granted.

C. P. contends the fornication statute is facially invalid because it manifestly infringes upon the constitutionally-guaranteed right of privacy. See Miller v. State, 266 Ga. 850 (2) (472 SE2d 74) (1996). “The liberty of privacy exists, has been recognized by the law, and is entitled to continual recognition. But it must be kept within its proper limits, and in its exercise must be made to accord with the rights of those who have other liberties. . . .” Pavesich v. New Eng. Life Ins. Co., 122 Ga. 190, 201 (50 SE 68) (1905). Thus, the right of privacy is not absolute since its successful exercise is dependent upon the facts and circumstances from which its assertion arises. In Powell v. State, 270 Ga. 327, 332 (510 SE2d 18) (1998), we recognized that there is no activity more private and more worthy of protection from governmental interference than unforced, private, adult sexual activity. That recognition was, in and of itself, limited by the facts of the case — the sexual activity was non-commercial, it was between adults legally capable of consent, it was unforced, and it took place in a private setting. Since Powell, we have stated that “the right to privacy does not protect all sexual conduct [from prosecution].” Howard v. State, 272 Ga. 242 (527 SE2d 194) (2000).

In order to graht C. P.’s motion to quash, the juvenile court would have had to conclude as a matter of law that a stall in a high school’s public restroom afforded its occupants a right of privacy regardless of the activity taking place within the stall, and would have to ignore the State’s “role in shielding the public from inadvertent exposure to the intimacies of others.” Powell v. State, supra, 270 Ga. at 333. However, a stall in a public restroom is not a private place when it is used for other than its intended purpose. See Elmore v. Atlantic Zayre, 178 Ga. App. 25 (341 SE2d 905) (1986) (no invasion of privacy when store’s bathroom stall was used for sexual activity); Wylie v. State, 164 Ga. App. 174 (296 SE2d 743) (1982) (no reasonable expectation of privacy when two persons occupy a stall facing each other without speaking for a period of time). Compare Snider v. State, 238 Ga. App. 55 (516 SE2d 569) (1999), and Kelley v. State, 233 Ga. App. 244 (2) [601]*601(503 SE2d 881) (1998) (16-year-old girl has a reasonable expectation of privacy when nude in the family home’s bathroom in the act of or following bathing).

Decided November 5, 2001 Reconsideration denied December 14, 2001. Paul J. Stalcup, for appellant. Richard R. Read, District Attorney, Robert D. James, Jr., Assistant District Attorney, for appellee.

Since the right of privacy is dependent upon the facts of each case and the facts in the case at bar, to the point they have been developed, do not support the successful assertion of the right to privacy, it cannot serve as the basis for quashing the petition alleging delinquency/unruliness on the part of C. P. Accordingly, the juvenile court did not err when it denied the motion to quash.

Judgment affirmed.

All the Justices concur.

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Benham, Justice.

C. P., age 14, is the subject of a petition filed in juvenile court alleging C. P. is a delinquent/unruly child¹ because C. P. is unmarried and engaged in an act of sexual intercourse in a stall in a restroom in a local high school. C. P. sought to quash the petition on two grounds: that the petition failed to set out a specific violation of Georgia law in that the fornication statute underlying the petition, OCGA § 16-6-18, [600]*600is an unconstitutional violation of a citizen’s “liberty of privacy” (1983 Ga. Const., Art. I, Sec. I, Par. I); and that it is unconstitutional to use as the offense underlying a petition for delinquency an act that would be protected activity if committed by an adult.² The juvenile court denied C. P.’s motion to quash and issued a certificate of immediate review. C. P. then filed in this Court an application for interlocutory review, which we granted.

C. P. contends the fornication statute is facially invalid because it manifestly infringes upon the constitutionally-guaranteed right of privacy. See Miller v. State, 266 Ga. 850 (2) (472 SE2d 74) (1996). “The liberty of privacy exists, has been recognized by the law, and is entitled to continual recognition. But it must be kept within its proper limits, and in its exercise must be made to accord with the rights of those who have other liberties. . . .” Pavesich v. New Eng. Life Ins. Co., 122 Ga. 190, 201 (50 SE 68) (1905). Thus, the right of privacy is not absolute since its successful exercise is dependent upon the facts and circumstances from which its assertion arises. In Powell v. State, 270 Ga. 327, 332 (510 SE2d 18) (1998), we recognized that there is no activity more private and more worthy of protection from governmental interference than unforced, private, adult sexual activity. That recognition was, in and of itself, limited by the facts of the case — the sexual activity was non-commercial, it was between adults legally capable of consent, it was unforced, and it took place in a private setting. Since Powell, we have stated that “the right to privacy does not protect all sexual conduct [from prosecution].” Howard v. State, 272 Ga. 242 (527 SE2d 194) (2000).

In order to graht C. P.’s motion to quash, the juvenile court would have had to conclude as a matter of law that a stall in a high school’s public restroom afforded its occupants a right of privacy regardless of the activity taking place within the stall, and would have to ignore the State’s “role in shielding the public from inadvertent exposure to the intimacies of others.” Powell v. State, supra, 270 Ga. at 333. However, a stall in a public restroom is not a private place when it is used for other than its intended purpose. See Elmore v. Atlantic Zayre, 178 Ga. App. 25 (341 SE2d 905) (1986) (no invasion of privacy when store’s bathroom stall was used for sexual activity); Wylie v. State, 164 Ga. App. 174 (296 SE2d 743) (1982) (no reasonable expectation of privacy when two persons occupy a stall facing each other without speaking for a period of time). Compare Snider v. State, 238 Ga. App. 55 (516 SE2d 569) (1999), and Kelley v. State, 233 Ga. App. 244 (2) [601]*601(503 SE2d 881) (1998) (16-year-old girl has a reasonable expectation of privacy when nude in the family home’s bathroom in the act of or following bathing).

Decided November 5, 2001 Reconsideration denied December 14, 2001. Paul J. Stalcup, for appellant. Richard R. Read, District Attorney, Robert D. James, Jr., Assistant District Attorney, for appellee.

Since the right of privacy is dependent upon the facts of each case and the facts in the case at bar, to the point they have been developed, do not support the successful assertion of the right to privacy, it cannot serve as the basis for quashing the petition alleging delinquency/unruliness on the part of C. P. Accordingly, the juvenile court did not err when it denied the motion to quash.

Judgment affirmed.

All the Justices concur.

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555 S.E.2d 426, 274 Ga. 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-c-p-ga-2001.

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