By Debra M. Finch, Esq.
Debra M. Finch, PC
A
child advocacy and adoption law firm
Does an offender commit intentional physical harm to a
child when he touches a child in a sexual manner but does not cause physical
pain or injury to the child?
In a
recent decision, the Georgia Supreme Court ruled no injury, no harm, resulting
in the removal of a convicted child molester from the state’s sex offender
registry.[1]
In
1993, Blake Randle pled guilty to one count of child molestation. He was
sentenced to three years in prison for touching the penis of a ten-year-old
boy. After completing his prison
sentence, Mr. Randle registered as a sex offender.[2]
Ten years
after completing his sentence, Mr. Randle was eligible to petition for removal
from the registry provided he met certain other criteria: 1) no prior
convictions for sexual offenses or obscenity in relation to minors; 2) the
offense did not involve use of a deadly weapon; 3) no evidence of similar
transactions; 4) offense did not involve the transportation of the victim; 5)
the victim was not physically restrained; and 6) the victim did not suffer any
intentional physical harm during the commission of the offense.[3]
In Randle, the
case turned on the definition of “intentional physical harm”. The State argued
that because Mr. Randle’s underlying sexual offense involved physical contact
with the genitals of a child, it created a presumption of “intentional physical
harm”.
The Supreme Court rejected the State’s argument, ruling
that the legislature distinguishes “insulting or provoking physical contact”
from intentional “physical harm”. Physical harm, the Court said, involves
infliction of pain or physical injury.
Because the child victim in the Randle
case did not suffer physical harm, Mr. Randle, a convicted child molester, met
the criteria for removal from the registry.
Common sense dictates that physical wounds often heal
much faster than psychological wounds. While a victim may not suffer
intentional “physical harm” during the commission of sexual assault, he or she
may suffer severe psychological injuries that never heal, especially if the
victim is a child.
Victims of sexual assault, particularly child victims,
deserve better treatment under Georgia law.
The
criteria for removal from the registry should be amended to create a
presumption of intentional physical harm when a child is the victim of a sexual
assault. It should also require a
showing that the victim (adult or child) was not threatened with physical harm
during the assault and did not suffer severe psychological injury as a result
of the assault. Even in the absence of
a deadly weapon, the threats employed by some offenders against their victims,
especially child victims, are often as effective as use of an actual deadly
weapon.
The Randle
decision illustrates flaws in how physical harm is defined as it relates to
child victims and removal of offenders from the registry. Hopefully, the legislature will
see fit to correct it.
