concurring specially.
I fully concur with the majority’s ruling that appellant’s sexual conduct with a minor in this case is not protected by any privacy interest, and with the affirmance of appellant’s conviction.
I write separately, however, to address the majority’s misleading statement that this Court’s decision in Powell v. State1 “did not hold that the right to privacy protects sodomy generally.”1 2 In Powell, this Court ruled that the state statute criminalizing sodomy (OCGA § 16-6-2 (a)) manifestly infringed upon the privacy rights of Georgia’s citizens, and thus must be struck down.3 In so ruling, this Court recognized that, as a general proposition, the sexual act of sodomy is protected by the constitutional right of privacy.4 Of course, there will be instances where the right of privacy will not protect a sexual act — even if that act, like sodomy or intercourse, is generally protected. Powell held that the right to privacy does not protect any sex act “taking place in public, performed with those legally incapable of giving consent, performed in exchange for money, or performed with force and against the will of a participant.”5 Thus, a sex act that is normally protected conduct — such as intercourse or sodomy — can be punishable as a separate crime if it is performed in public, by force, against a minor, etc. In those situations, a perpetrator is subject to prosecution under laws prohibiting crimes such as child molestation,6 aggravated child molestation (as exists in this case),7 aggravated sodomy,8 public indecency,9 aggravated assault,10 and the *356sexual battery of detained individuals.11 No constitutional right of privacy attaches to these crimes, even though the sex act itself, if done in private between consenting adults, would be constitutionally protected.
Decided January 22, 2001. Rodney L. Mathis, for appellant. T. Joseph Campbell, District Attorney, Rebecca B. Paris, Assistant District Attorney, for appellee.Generally speaking, then, absent the type of aggravating circumstances discussed above, Georgia’s adult citizens’ right to privacy shields them from State intrusion into their private, non-commercial, consensual sexual conduct. Nothing in the majority opinion should be construed to hold otherwise.
270 Ga. 327 (510 SE2d 18) (1998).
Op. at 354.
270 Ga. at 336.
See 270 Ga. at 332.
270 Ga. at 333.
OCGA § 16-6-4 (a).
OCGA § 16-6-4 (c).
OCGA § 16-6-2 (b).
OCGA § 16-6-8.
OCGA § 16-5-21.
OCGA § 16-6-5.1.