Background
In the early morning hours of December 10, 2016, Jerome Antonio Booze, a 38-year-old Lyft driver, picked up E.F., a 20-year-old college student, outside a bar in Cobb County, Georgia. E.F. had spent the evening consuming large quantities of alcohol and had been denied entry to a second bar due to her visible intoxication. Friends helped her into Booze’s car, where she immediately fell asleep. During the roughly 45 minutes Booze’s car sat outside E.F.’s gated apartment complex — unable to gain entry — E.F. vomited twice, spoke in slurred and often incoherent speech, and required Booze’s physical assistance to stand or walk. Booze, who was sober, acknowledged to a friend on a FaceTime call that E.F. had vomited and told police he believed that if he left her alone she “probably would’ve been laying in the grass.”
Around 5:25 a.m., Booze moved his car to a parking area, got into the back seat, and had sex with E.F. When E.F. woke several hours later she reported being raped but had no memory of the encounter. A sexual assault examination at Grady Hospital documented vaginal soreness, a hematoma on her forehead, and a contusion on her neck. When detectives interviewed Booze, he initially denied remembering E.F., then acknowledged the sexual encounter only after being confronted with E.F.’s allegation, claiming she had initiated it and that it was consensual.
In March 2019, a Cobb County jury convicted Booze of rape and the trial court sentenced him to life imprisonment with 35 years to serve. Following denial of his motion for new trial, Booze appealed, raising three enumerations of error: (1) that Georgia’s rape statute, OCGA § 16-6-1(a)(1), was void for vagueness as applied to him; (2) that the evidence was constitutionally insufficient; and (3) that the trial court erred in its jury instructions on mistake of fact and constructive force.
The Court’s Holding
The Supreme Court of Georgia, in an opinion by Justice LaGrua, affirmed the conviction on all grounds. On the vagueness claim, the Court held that OCGA § 16-6-1(a)(1) — defining rape as carnal knowledge of a female “forcibly and against her will” — was not unconstitutionally vague as applied to Booze. Georgia courts have recognized since at least 1904 that intercourse with a woman whose will is temporarily lost from intoxication constitutes rape. Given E.F.’s multiple, obvious signs of extreme incapacitation — inability to walk without assistance, vomiting, slurred and incoherent speech, inability to stay conscious — a person of ordinary intelligence in Booze’s position would have had fair warning that having sex with her could constitute rape. The Court declined to reach any facial vagueness challenge because Booze failed to establish the statute was vague as applied to him.
On sufficiency of the evidence, the Court confirmed that OCGA § 16-6-1(a)(1) incorporates the common law definition of rape, including the doctrine of “constructive force.” When a victim’s will is temporarily lost due to intoxication, the physical act of intercourse itself satisfies the “forcibly” element without requiring additional physical overpowering. The Court reasoned that when the legislature reenacted the rape statute in 1968 using language materially identical to prior statutes that had been consistently construed to include constructive force since 1904, that construction carried forward. Viewing the evidence in the light most favorable to the verdict, the jury was rationally authorized to find E.F. was so severely intoxicated that she had lost the ability to consent.
On the jury instruction claim, the Court rejected Booze’s challenge to the trial court’s addition of a sentence — drawn from Georgia appellate decisions — that mistake of fact is not a defense if it was “superinduced by the fault or negligence of the party doing the wrongful act.” Reviewing de novo, the Court held that the instructions, taken as a whole, sufficiently instructed the jury and that no reversible error occurred.
Key Takeaways
- OCGA § 16-6-1(a)(1) is not unconstitutionally vague as applied to intercourse with a severely intoxicated victim; over a century of consistent Georgia case law gives fair warning that such conduct constitutes rape.
- Georgia’s rape statute incorporates the common law “constructive force” doctrine: where a victim’s will is temporarily lost due to intoxication, the act of intercourse itself satisfies the “forcibly” element without requiring additional physical force.
- Multiple obvious signs of extreme intoxication — inability to walk unassisted, vomiting, slurred or incoherent speech, inability to stay awake — are sufficient to authorize a jury to find the victim lacked capacity to consent.
- A mistake-of-fact instruction may properly include the limitation that the defense is unavailable when the defendant’s misapprehension was caused by his own fault or negligence.
- A defendant’s false or shifting exculpatory statements to police, and implausible trial testimony contradicted by multiple witnesses, may be considered by the jury as substantive evidence of guilt.
Why It Matters
This decision is a significant reaffirmation of Georgia’s legal framework for rape prosecutions involving intoxicated victims. By holding that OCGA § 16-6-1(a)(1) codifies the common law definition of rape — including constructive force — the Court forecloses the recurring defense argument that the statute’s textual silence on intoxication creates an unconstitutional ambiguity or requires proof of physical overpowering. Prosecutors in Georgia can proceed confidently on rape charges in cases where the victim’s incapacity stems from alcohol or drugs rather than from physical force, provided the evidence supports a finding that the victim’s will was temporarily lost.
The Court’s as-applied vagueness analysis also signals that such challenges will have little traction where the defendant was presented with unmistakable signs of the victim’s incapacitation. The opinion reinforces that the relevant inquiry is not whether the statute provides a precise metric for the degree of intoxication required, but whether a person of ordinary intelligence in the defendant’s specific position would have understood that the conduct was criminal. Defense practitioners should note that a sober defendant’s observation of severe, multi-symptom intoxication in the victim will make a vagueness-as-applied argument extremely difficult to sustain in Georgia courts.