Accordingly, we reverse the habeas court's judgment and remand the case to it for proceedings consistent with this opinion. 271 Ga. 605, 607 ( 523 S.E.2d 18) (1999). See Taylor v. State, 262 Ga. 584, 586 ( 422 S.E.2d 430) (1992);Teague v. Lane, 489 U.S. 288, 310-311 ( 109 S.Ct. 1060, 103 L.Ed.2d 334) (1989).
1. Mitchell first challenges his conviction on the aggravated sodomy counts, arguing that the State failed to prove that he perpetrated the acts of oral and anal sodomy on his three male victims, who ranged in age from seven to nine years, forcibly and against their will. See Brewer v. State, 271 Ga. 605 ( 523 SE2d 18) (1999). Effective July 1, 2000, the General Assembly amended OCGA § 16-6-2 (a) (2) so that it now provides that aggravated sodomy is committed either when acts of sodomy are committed with force and against the will of the victim or "with a person who is less than ten years of age."
Consequently, the fact that aggravated sodomy has, as a matter of law, a lesser included offense (sodomy) is a critical distinction between rape and aggravated sodomy that precludes the State from using evidence of constructive force to prove aggravated sodomy. In Brewer v. State, 271 Ga. 605, 606 ( 523 SE2d 18) (1999), the Supreme Court of Georgia ruled that the State must prove actual force when prosecuting a defendant for the aggravated sodomy of a victim under the age of consent. In explaining its ruling, the Court acknowledged that the legislature had enacted a separate statute, aggravated child molestation, OCGA § 16-6-4 (c), which criminalized sodomy with an underage victim when there was no evidence of force and which carried a less harsh punishment than aggravated sodomy.
See Perkinson v. State, 273 Ga. 491, 495, n. 2 ( 542 S.E.2d 92) (2001). See Hyman v. State, 272 Ga. 492, 496 ( 531 S.E.2d 708) (2000); Brewer v. State, 271 Ga. 605, 606, 608 ( 523 S.E.2d 18) (1999).Brewer, 271 Ga. at 608.
Within the meaning of the aggravated sodomy statute, the term "force" means "acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation" such as would be "sufficient to instill in the victim a reasonable apprehension of bodily harm, violence, or other dangerous consequences to [oneself] or others."(Citation and punctuation omitted.) Brewer v. State , 271 Ga. 605, 607, 608, 523 S.E.2d 18 (1999). To prove aggravated sodomy in cases involving victims who are above the age of consent but unable to consent due to mental incompetency or intoxication by drugs or alcohol, this Court has held that the State must show actual force (not constructive force).
She testified: Brewer v. State, 271 Ga. 605, 607 ( 523 SE2d 18) (1999). Q. Okay. Tell us about the first time you remember you-all having sexual contact. What happened; how did it come about?
Chancey argues that this charge is erroneous and in conflict with Brewer v. State. In Brewer, the Supreme Court held that the state must prove force even if the victim is underage. 271 Ga. 605, 523 S.E.2d 18 (1999). Id. at 606, 523 S.E.2d 18.
To the contrary, that statute "'simply raises a defense for (children under 13) because of the social desirability of protecting those no more than 12 years of age from the consequences of criminal guilt.' [Cit.]" Luke v. State, 222 Ga. App. 203, 205(1) (b) ( 474 SE2d 49) (1996), overruled on other grounds, Brewer v. State, 271 Ga. 605, 607 ( 523 SE2d 18) (1999). See also K. M. S. v. State of Ga., supra (taking this language from the Committee Notes).
Nonetheless, even if that exception to the procedural bar rule is applied, it does not warrant the relief Stinson sought in the habeas court; the victim testified that she submitted to Stinson's desires because she believed that if she did not, he would physically hurt her, which, in the context of Stinson's words and actions, constituted a reasonable fear. See Brewer v. State, 271 Ga. 605, 607-608 (2) ( 523 SE2d 18) (1999). Judgment reversed. All the Justices concur.
Contrary to Heidler's assertion on appeal, this charge did not instruct the jury to presume force when a person under the legal age of consent is sodomized. By its terms, the instruction relates only to the presumption of an underage victim's lack of consent, and it constitutes a correct statement of the law in that regard. See Brewer v. State, 271 Ga. 605, 606 ( 523 S.E.2d 18) (1999); State v. Collins, 270 Ga. 42-43 ( 508 S.E.2d 390) (1998). 13. Heidler never requested a charge on theft by taking and manslaughter as lesser-included offenses of burglary and murder respectively, and the trial court did not err by failing to charge on those crimes sua sponte.