dissenting.
The majority remarkably misinterprets OCGA § 16-6-5.1 (b) as implicitly making consent a defense and simultaneously incorporating an unmentioned age of consent in an apparent attempt to make its holding more palatable. The majority achieves this result only by extending the reach of subsection (c) (3) beyond the very language on which it relies, erroneously construing subsections (b) and (c) in pari materia with each other, and completely disregarding other portions of Chapter 6 of Title 16 and the legislative development of OCGA § 16-6-5.1. I also note that the majority appears to contradict its holding and make consent a conclusive presumption rather than a defense if the victim is over the age of consent, when it states that “Chase’s conduct with Garcia was not a crime because Garcia was over the age of consent when the sexual contact occurred.” (Majority Opinion, p. 698) Thus, today’s ruling will result in there being no viable prosecutions of violations of OCGA § 16-6-5.1 (b) if the victim is 16 years of age or older.
Subsection (c) (3) provides only that “[cjonsent of the victim shall not be a defense to a prosecution under this subsection.” It does not indicate that the irrelevance of consent is limited to “this subsection.” Nor does subsection (c) (3) in any manner imply that consent is a defense to a prosecution under subsection (b). Instead, subsection (c) (3) simply excludes consent as a defense to the crimes defined in subsection (c).
Subsection (c) was first added to OCGA § 16-6-5.1 in order “to provide for the offense of sexual assault against persons under psychotherapeutic care . . . .” Ga. L. 1992, p. 1940. Subsection (c) (2) addresses the “actual or purported practitioner of psychotherapy.” Since such a practitioner does not necessarily have “supervisory or *700disciplinary authority” over the patient, the inclusion of subsection (c) (1) makes it clear that someone who has such authority, because the patient is either imprisoned or institutionalized, is also subject to prosecution under subsection (c). However, subsection (c) (1) does not require that the victim be under psychotherapeutic care, and instead sets forth elements which are all among the alternative elements listed in subsection (b). In other words, conduct meeting all of the elements in subsection (c) (1) can also be prosecuted under subsection (b). Thus, the majority’s holding leads to the anomalous result that consent becomes a defense to the crime defined in subsection (c) (1) if it is prosecuted under subsection (b). Availability of consent as a defense to that single crime will now depend solely upon which subsection is charged. Undoubtedly, the State will always prosecute under subsection (c) (1), and the corresponding portion of subsection (b) will become useless.
The majority argues that subsection (c) (3) shows that the General Assembly knows “full well how to eliminate the consent defense when it wishes to do so.” (Majority Opinion, p. 696) Rarely, however, has the legislature explicitly eliminated the defense of consent. Ordinarily, the General Assembly expressly addresses consent only when it has the opposite intent. Thus, in many sections of Chapter 6, the language explicitly makes lack of consent an element of the crime. OCGA §§ 16-6-1 (a) (1) (rape “against her will”), 16-6-2 (a) (2) (aggravated sodomy), 16-6-22.1 (sexual battery), 16-6-22.2 (aggravated sexual battery). See also State v. Collins, 270 Ga. 42, 43 (508 SE2d 390) (1998) (“against her will” in rape statute means without consent); Sharma v. State, 294 Ga. App. 783, 785 (670 SE2d 494) (2008) (sexual battery statute makes lack of consent an essential element of the crime). Conversely, in most other sections in that chapter, consent or non-consent is irrelevant and, thus, is not set forth as either an element or defense. OCGA §§ 16-6-1 (a) (2) (rape of a female “less than ten years of age”), 16-6-2 (a) (1) (sodomy), 16-6-3 (statutory rape), 16-6-4 (child molestation), 16-6-5 (enticing a child), 16-6-22 (incest). See also Powell v. State, 270 Ga. 327 (510 SE2d 18) (1998) (consent not relevant under sodomy statute, but constitutionally relevant); Coker v. State, 164 Ga. App. 493, 494 (1) (297 SE2d 68) (1982) (consent irrelevant in cases of statutory rape, child molestation, and enticing a child). Subsection (b) of OCGA § 16-6-5.1 not only omits any mention of consent or lack thereof, it sets forth the element of “supervisory or disciplinary authority” in the actor. That element, like the victim’s age in other statutes, reflects the increased danger of exploitation such that consent is not a reasonable defense. However, the element of “supervisory or disciplinary authority” is not included in subsection (c) (2). Thus, it is not as readily apparent in that subsection as it is *701in subsection (b) that consent is not a defense, and the legislature’s inclusion of subsection (c) (3) constitutes a helpful clarification with respect to subsection (c) which is not necessary for subsection (b).
Decided June 15, 2009 — RECONSIDERATION DENIED JUNE 30, 2009.The majority states that its “refusal to write into OCGA § 16-6-5.1 (b) a provision removing consent as a defense does not render the 2006 amendment nugatory.” (Majority Opinion, p. 698) As discussed above, the majority actually writes consent as a defense into subsection (b). The majority may be correct that its holding does not render that subsection nugatory, since the punishment thereunder was substantially increased in 2006. However, under the majority’s rewriting of subsection (b), it is reduced to a mere enhanced penalty statute. Moreover, not even this limited effect of subsection (b) would have resulted from such a judicial rewriting prior to 2006. If the majority correctly construes that subsection as including consent as a defense, then every prior version thereof was largely ineffective. Violations of all prior versions could be punished only by imprisonment of one to three years. Therefore, if the majority’s interpretation of subsection (b) is correct, most instances of non-consensual sexual contact prohibited therein could and would have been prosecuted under other sections of Chapter 6 which provide for more severe punishment. In other words, every version of subsection (b) has been essentially useless under the majority’s construction thereof.
Although the majority accurately quotes many rules of statutory construction, it fails to apply them correctly, and the result is disturbing. A statute enacted in pertinent part to protect students from exploitation by teachers is now almost useless due to the judicial imposition of a defense of consent, even though consent in these circumstances is commonly obtained by the very exploitation which the statute was designed to prevent. That result is not made any less disturbing by the majority’s hypothetical application of the statute to a consensual sexual encounter between a 30-year-old law professor and a 50-year-old student. Even that age difference does not eliminate a student’s vulnerability to exploitation by a person having supervisory or disciplinary authority over such student. In any event, a single hypothetical cannot control the construction of OCGA § 16-6-5.1. Because the majority clearly errs in its interpretation of that statute, I respectfully dissent to the reversal of the Court of Appeals’ judgment.
I am authorized to state that Justice Thompson joins in this dissent.
*702Victor Hawk, for appellant. Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.