State v. Gaither

224 S.E.2d 378, 236 Ga. 497, 1976 Ga. LEXIS 916

Opinions

Undercofler, Presiding Justice.

This appeal is from the ruling of the Criminal Court of Fulton County which held that Code § 26-2012 (Ga. L. 1968, pp. 1249, 1301) is unconstitutional as enforced in the City of Atlanta, Fulton County, Georgia, because it systematically, wilfully and intentionally is enforced only against females and is a denial of equal protection.

Code § 26-2012 provides: "A person commits prostitution when he performs or offers or consents to perform an act of sexual intercourse for money.”

1. The trial court found that from the evidence presented the Atlanta Police Department as a matter of policy applies the statute only against female "sellers” and that it was not enforced against male "buyers.” The statute is applicable only to "sellers” of sexual intercourse for money. As stated in the Criminal Law Study Committee’s notes on the offense of prostitution, "The offense is defined in terms of commercialization: the sale, offer to sell, or consent to sell physical intimacies for money.”

2. The evidence shows that the Atlanta Police Department receives many complaints about female prostitutes but does not receive complaints about male prostitutes. Therefore, the conclusion reached by the trial court that the statute and its application in the City of Atlanta denies equal protection to female prostitutes must be reversed.

3. The other attacks raised by the motion to dismiss were specifically not ruled on by the trial court and cannot be considered here.

Judgment reversed.

All the Justices concur, except Jordan, Hall and Hill, JJ., who concur specially. Hinson McAuliffe, Solicitor, Charles Hadaway, Assistant Solicitor, for appellant. Margie Pitts Hames, for appellees.