Georgia Court of Appeals Defines Elements of Child Molestation

Jason Prophitt crawled beneath his house to ogle his daughter’s friend through a slot in the floor while she showered. While spying on the young woman, a minor at the time, Mr. Prophitt masturbated. Georgia’s Echols Superior Court found the man guilty of child molestation.

The Court of Appeals disagreed with the trial court, determining that Jason Prophitt was not in close proximity to the girl when he committed what is considered an indecent or immoral act. According to O.C.G.A. § 16-6-4 (1), the accused must be “in the presence of” the victim, and Georgia case law has further defined presence as “being in the same room or on the same piece or furniture.” The evidence showed that the shower was about seven or eight feet above the ground on which Mr. Prophitt positioned himself, and the bathroom floor provided an ample barrier between the two. The young woman was unaware of his attention and subsequent act.

The Court of Appeals reversed the trial court’s ruling, and Jason Prophitt was not convicted of child molestation because he did not masturbate in the young woman’s presence.