The Georgia Court of Appeals has reversed the conviction of a former Bainbridge High School teacher who had been accused of violating Georgia’s sexual assault law by having a sexual relationship with a teenage student.

Richard Dennis Whitehead, 37, who has been in prison since November 2007, is due to be freed from prison sometime within the next few days, as soon as the Appeals Court’s decision is delivered to the Decatur County Superior Court and to the Calhoun State Prison, where he had been in custody, according to the Clerk of Courts office.

Whitehead, a former English teacher at BHS, was charged with sexual assault against persons in custody after an investigation uncovered he had sex with a then-17-year-old female student on nine occasions between March 23, 2007, and April 20, 2007. Although the contacts were consensual, Whitehead was charged because Georgia law prohibits anyone with supervisory control over another person from engaging in sexual contact with that person.

Whitehead’s conviction was reversed by the Appeals Court last Friday, Oct. 16, according to records accessed via the court’s Web site. The same court had denied an earlier appeal by Whitehead in January and he had appealed further to the Supreme Court of Georgia. However, a Supreme Court’s decision on a similar case in July changed his legal situation and the high court sent the appeal back to the Court of Appeals.

In Chase v. The State of Georgia, the Supreme Court of Georgia overturned a 2006 sexual assault conviction against a 28-year-old female teacher who had a consensual romantic relationship with a 16-year-old female student. In a 5-2 decision in that case, the court stated the teacher, Melissa Lee Chase, should have been allowed to present consent as a defense at trial, as the student was of legal age to give her consent to have sex—which is 16 years old in Georgia.

The court’s opinion interpreted Georgia law, as written, as only prohibiting the use of consent as a defense in situations where the defendant had sex with a person in legal custody or detained as a patient in a hospital or other institution. Chase and Whitehead had been charged under a similar but separate subsection of the sexual assault law that deals with situations in which the consenting partner was enrolled in a school.

Therefore, the Court of Appeals, in hearing Whitehead’s second appeal, stated “Whitehead’s conduct with [the student] was not a crime because [the student] was over the age of consent when the sexual contact occurred and [the student] was a ‘willing participant’ in the sexual activity.”

Reversed convictions may lead to law change

District Attorney Joe Mulholland said that while he was disappointed with the outcome in the Whitehead case, he understood the court’s ruling that Georgia’s sexual assault law, several decades old, was vague in its wording.

Therefore, based on the decisions in the Chase and Whitehead cases, Mulholland said the Georgia District Attorneys’ Association legislative advisory panel planned to make fixing the sexual assault law to address the questions brought up by the Supreme Court in the next legislative session. The panel advises legislators on legal issues.

Mulholland said he and Douglas County District Attorney David McDade—both members of the DAs’ legislative advisory panel—met last week with state legislative leaders on the issue. Mulholland said the legislators gave their committment to make changes to the law so that it will better protect high school students.

A message left late Thursday afternoon for one of Whitehead’s attorneys, Gil Murrah of Bainbridge, was not returned by press time on Friday.