C.P., age 14, is the subject of a petition filed in juvenile court alleging C.P. is a delinquent/unruly child1 because C.P. is unmarried and engaged in an act of sexual intercourse in a stall in a restroom in a local high school. C.P. sought to quash the petition on two grounds: that the petition failed to set out a specific violation of Georgia law in that the fornication statute underlying the petition, OCGA § 16-6-18, is an unconstitutional violation of a citizen’s “liberty of privacy” 1983 Ga. Const., Art. I, Sec. I, Para. I.; and that it is unconstitutional to use as the offense underlying a petition for delinquency an act that would be protected activity if committed by an adult.2 The juvenile court denied C.P.’s motion to quash and issued a certificate of immediate review. C.P. then filed in this Court an application for interlocutory review, which we granted.
C.P. contends the fornication statute is facially invalid because it manifestly infringes upon the constitutionally-guaranteed right of privacy. See Miller v. State, 266 Ga. 850 2 472 SE2d 74 1996. “The liberty of privacy exists, has been recognized by the law, and is entitled to continual recognition. But it must be kept within its proper limits, and in its exercise must be made to accord with the rights of those who have other liberties. . . .” Pavesich v. New Eng. Life Ins. Co., 122 Ga. 190, 201 50 SE 68 1905. Thus, the right of privacy is not absolute since its successful exercise is dependent upon the facts and circumstances from which its assertion arises. In Powell v. State, 270 Ga. 327, 332 510 SE2d 18 1998, we recognized that there is no activity more private and more worthy of protection from governmental interference that unforced, private, adult sexual activity. That recognition was, in and of itself, limited by the facts of the case-the sexual activity was non-commercial, it was between adults legally capable of consent, it was unforced, and it took place in a private setting. Since Powell, we have stated that “the right of privacy does not protect all sexual conduct from prosecution.” Howard v. State, 272 Ga. 242 527 SE2d 194 2000.
