Drake v. State

Undercofler, Presiding Justice,

concurring in the judgment but dissenting as to Division 1.

Throughout its history this court has held that sexual intercourse with an underage female raises a presumption of force. Stephen v. State, 11 Ga. 225 (1852); McFall v. State, 235 Ga. 105 (218 SE2d 839) (1975). The majority now holds that there is no such presumption. Perhaps the majority’s conclusion does no great harm. But it does seem quite academic to say that the state must prove actual force (or coercion) to convict a father of raping his nine-year-old daughter, or for that matter any other nine-year-old child.