concurring specially.
In Drake v. State, 239 Ga. 232, 234-235 (236 SE2d 748) (1977), the Supreme Court cited with approval the following language from Wharton, Criminal Law & Procedure, § 307 (1957): “In the ordinary [rape] case, the force to which reference is made is not the force inherent in the act of penetration but is the force used to overcome the resistance of the female. When the victim is physically or mentally unable to give consent to the act, as when she is intoxicated, drugged, or mentally incompetent, the requirement of force is found in constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.” Implicitly following such reasoning, we have consistently held that “[s]exual intercourse with a woman whose will is temporarily lost from intoxication, or unconsciousness arising from use of drugs or other cause, or sleep, is rape. [Cits.]” Paul v. State, 144 Ga. App. 106 (2) (240 SE2d 600) (1977). Accord Brown v. State, 174 Ga. App. 913 (331 SE2d 891) (1985).
Being only five years old, the victim in the case before us was legally as incapable of giving her consent to the defendant’s actions as if she had been asleep or drugged. Therefore, in my view, proof of penetration itself constitutes proof of force. As the state’s evidence was amply sufficient to establish penetration by the defendant of the victim’s anus, I believe his conviction should be affirmed. That the legal effect of such reasoning is to make any act of anal intercourse with a child under 14 years of age an act of aggravated sodomy does not disturb me in the least.
I am authorized to state that Presiding Judge Deen joins in this special concurrence.