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Two Recent Appellate Reversals

Court of Appeals to Decide what Constitutes "Physical Restraint"

Posted by Benjamin Goldberg | Aug 02, 2016 | 0 Comments

Pursuant to O.C.G.A. 42-1-19, the statute that defines who is eligible to petition for removal from the sex offender registry in Georgia, most petitioners have to meet the six criteria of O.C.G.A. 17-10-6.2(c)(1)(A)-(F): that the petitioner have no prior convictions of a sexual nature, that there were no relevant similar transactions, that the offense requiring registration did not involve use of a weapon, that the offense did not involve transportation of the victim, that the victim was not physically harmed and, finally, that there was no physical restraint of the victim. The Court of Appeals recently granted a discretionary application for appeal to determine what exactly constitutes "physical restraint."  

J.R. was convicted over 20 years ago of allegations that he sexually abused his very young daughter. J.R. always maintained his innocence and the evidence against him was flimsy and highly questionable. J.R. filed a petition for release from the sex offender registry and the trial court denied the petition by finding that the element of physical restraint was present. Specifically, there were allegations made at the trial that J.R. had laid on top of his daughter, and the prosecutor successfully argued that that evidence alone constituted physical restraint.

The Court of Appeals granted J.R.'s application for discretionary appeal on this basis. Though the six criteria listed above are frequently considered in courtrooms across Georgia, no court has ever examined the legal and applicable definition of physical restraint in this context. The phrase is not defined in the Georgia Code. However, its use in other parts of the Code and the way it is defined in the federal sentencing guidelines seem to indicate that physical restraint requires more than the mere act of lying on top of someone; it requires that the victim actually be bound, fettered, tied up or otherwise restrained in some way.

This is an important issue for criminal defense attorneys across Georgia and the clients that they represent in petitions for removal from the registry. If the mere act of lying on top of someone constitutes physical restraint, this means that most everyone convicted of statutory rape would be precluded from eligibility for removal. This would be a terrible interpretation of the law. First, the legislature, in drafting O.C.G.A. 42-1-19, did not specifically exclude those convicted of statutory rape from petitioning for removal. Second, those convicted of this particular offense are oftentimes the people most qualified for removal as they frequently involve cases of men who were 18 or 19 and have sex with a female under the age of 16. 

Briefs on the issue have been submitted to the Court of Appeals and a ruling is expected in the near future. The case can be followed here, and the blog will be updated when the decision is released.

About the Author

Benjamin Goldberg

Ben has known since college that he wanted to become a criminal defense attorney. At Northeastern University in Boston, Massachusetts, Ben majored in criminal justice with a focus on pre-law. This helped prepare him for law school, when he returned home to Atlanta, Georgia and attended Georgia State University. While in law school, Ben gained valuable experience during externships with the Georgia Innocence Project, the Federal Defender Program and the Georgia Public Defender Standards Council.


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