concurring specially.
I concur in the affirmance of the judgment but for a different reason than expressed by the majority opinion.
1. I agree with Judge Ruffin that the issue of the validity of the conviction was not waived at trial or precluded from review by an “induced error” rule. Griffith v. State, 188 Ga. App. 789 (374 SE2d 359) (1988), is distinguishable. Unlike Shepherd’s case, Griffith involved a specific request by defendant that the jury be charged that it consider the evidence and return a verdict of guilty or not guilty of simple battery. Since Shepherd’s trial was before a judge, there was no jury charge, and as the special concurrence persuasively sets out, no “inducement.” Left for a jury charge case is a full exploration of whether Griffith should be overruled.
2. The question goes back to State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976), a case in which the Supreme Court held that under the facts of that case, simple battery as defined in the Code is not a lesser crime included in the crime of child molestation (the charge in the indictment) as defined in the Code. Thus it was not error for the judge to fail to charge on simple battery.
Here the trial court, in a bench trial, orally reviewed the evidence and concluded that defendant touched the little girl in a private part, but the court was reluctant to find that child molestation had occurred. The court inquired if sexual battery was a lesser included offense, the State said it was not and cited Landrum v. State, 210 Ga. App. 275, 277 (6) (436 SE2d 40) (1993), defendant’s counsel said it depended on the facts, and the court found defendant guilty of sexual *895battery. Thus it appears that at Shepherd’s trial, the State, the defense counsel, and the court all agreed that sexual battery could be a lesser included offense of child molestation as a matter of fact. That is certainly understandable, given Landrum.
Landrum, written the same year as Duck v. State, 210 Ga. App. 205 (435 SE2d 725) (1993), cited by the majority and appearing in the same volume of the official reports, left open the possibility that sexual battery could, as a matter of fact, be included in child molestation; there just was not evidence of merely sexual battery in Landrum.
Teasley v. State, 207 Ga. App. 719, 720 (429 SE2d 127) (1993), the sole case on which Duck depends for the statement that the crimes have different elements and protect different classifications of victims, held that because of the narrowly drawn indictment and the evidence, sexual battery was not a lesser included offense in that case as a matter of fact. Teasley did not say that sexual battery could never be a lesser included offense in cases in which the defendant was indicted for child molestation.
Teasley first concludes that sexual battery is not included in child molestation as a matter of law, based on an application of OCGA § 16-1-6 (2). With that I agree. According to this statute, a crime is included in another if it is shown that “[i]t differs from the crime charged only in the respect that... a lesser kind of culpability suffices to establish its commission.” The elements of child molestation are not those of sexual battery plus something more.
As stated above, Teasley also held that sexual battery was not lesser included as a matter of fact in that case. I do not believe that is correct. The facts described at the outset of the opinion show a sexual battery. Teasley intentionally made physical contact with an intimate part of the body of the victim without her consent. The indictment did not have to expressly allege “without consent” because the absence of consent is supplied by the allegation that the victim was under age 14. The law conclusively presumes a child cannot give consent to such an act because of the lack of discernment, as in statutory rape. The Teasley opinion does not describe what was deficient in the indictment vis-a-vis sexual battery.
Sexual battery, a misdemeanor of a high and aggravated nature (OCGA § 16-6-22.1), is a lesser included offense of the felony of child molestation (OCGA § 16-6-4) in this case, as a matter of fact. Defendant Shepherd was charged with child molestation in that he did “commit an immoral and indecent act to [and] in the presence of [A. A.], a child under the age of 14 years, with the intent to arouse and satisfy the sexual desires of said accused person, said act being that [defendant] placed his hand on the vagina of [A. A.].” Removing the elements of specific intent leaves sexual battery. That is, charging *896defendant with placing his hand on the vagina of A. A. intentionally (i.e., with general criminal intent) would constitute sexual battery if done without her consent. OCGA § 16-6-22.1 (b). Since a person under age 14 cannot legally consent, this element is contained in the indictment for child molestation. Defendant was on notice, McCrary v. State, 252 Ga. 521, 524 (314 SE2d 662) (1984), and did not contend otherwise.
The circumstances of the touching, and the victim’s reaction thereafter, clearly allow the inference that the touching was done without her consent, even without considering the victim’s age.