2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 12 - Offenses Against Public Health and Morals
Article 3 - Obscenity and Related Offenses
Part 2 - Offenses Related to Minors Generally
§ 16-12-100.2. Computer or Electronic Pornography and Child Exploitation Prevention

1. This Code section shall be known and may be cited as the "Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007."
2. As used in this Code section, the term:
   1. "Child" means any person under the age of 16 years.
   2. "Electronic device" means any device used for the purpose of communicating with a child for sexual purposes or any device used to visually depict a child engaged in sexually explicit conduct, store any image or audio of a child engaged in sexually explicit conduct, or transmit any audio or visual image of a child for sexual purposes. Such term may include, but shall not be limited to, a computer, cellular phone, thumb drive, video game system, or any other electronic device that can be used in furtherance of exploiting a child for sexual purposes;
   3. "Identifiable child" means a person:
      1. Who was a child at the time the visual depiction was created, adapted, or modified or whose image as a child was used in creating, adapting, or modifying the visual depiction; and
      2. Who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature or by electronic or scientific means as may be available.

         The term shall not be construed to require proof of the actual identity of the child.

   4. "Sadomasochistic abuse" has the same meaning as provided in Code Section 16-12-100.1.
   5. "Sexual conduct" has the same meaning as provided in Code Section 16-12-100.1.
   6. "Sexual excitement" has the same meaning as provided in Code Section 16-12-100.1.
   7. "Sexually explicit nudity" has the same meaning as provided in Code Section 16-12-102.
   8. "Visual depiction" means any image and includes undeveloped film and video tape and data stored on computer disk or by electronic means which is capable of conversion into a visual image or which has been created, adapted, or modified to show an identifiable child engaged in sexually explicit conduct.
3. 1. A person commits the offense of computer or electronic pornography if such person intentionally or willfully:
      1. Compiles, enters into, or transmits by computer or other electronic device;
      2. Makes, prints, publishes, or reproduces by other computer or other electronic device;
      3. Causes or allows to be entered into or transmitted by computer or other electronic device; or
      4. Buys, sells, receives, exchanges, or disseminates

         any notice, statement, or advertisement, or any child's name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for the purpose of offering or soliciting sexual conduct of or with an identifiable child or the visual depiction of such conduct.

   2. Except as provided in paragraphs (3) and (4) of this subsection, any person convicted of violating paragraph (1) of this subsection shall be punished by a fine of not more than $10,000.00 and by imprisonment for not less than one nor more than 20 years.
   3. Any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor if:
      1. At the time of the offense, any identifiable child visually depicted was at least 14 years of age when the visual depiction was created;
      2. The visual depiction was created with the permission of such child;
      3. The defendant possessed the visual depiction with the permission of such child; and
      4. The defendant was 18 years of age or younger at the time of the offense and:
         1. The defendant did not distribute the visual depiction to another person; or
         2. In the court's discretion, and when the prosecuting attorney and the defendant have agreed, if the defendant's violation involved the distribution of such visual depiction to another person but such distribution was not for the purpose of:
      5. Harassing, intimidating, or embarrassing the minor depicted; or
      6. For any commercial purpose.
   4. The prohibition contained in paragraph (1) of this subsection shall not apply to any person who creates or possesses a visual depiction of only himself or herself.
4. 1. It shall be unlawful for any person intentionally or willfully to utilize a computer wireless service or Internet service, including, but not limited to, a local bulletin board service, Internet chat room, e-mail, instant messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child, another person believed by such person to be a child, any person having custody or control of a child, or another person believed by such person to have custody or control of a child to commit any illegal act by, with, or against a child as described in Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; or Code Section 16-6-8, relating to the offense of public indecency, or to engage in any conduct that by its nature is an unlawful sexual offense against a child.
   2. Any person who violates paragraph (1) of this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years and by a fine of not more than $25,000.00; provided, however, that if at the time of the offense the victim was at least 14 years of age and the defendant was 18 years of age or younger, then the defendant shall be guilty of a misdemeanor.
5. 1. A person commits the offense of obscene Internet contact with a child if he or she has contact with someone he or she knows to be a child or with someone he or she believes to be a child via a computer wireless service or Internet service, including, but not limited to, a local bulletin board service, Internet chat room, e-mail, or instant messaging service, and the contact involves any matter containing explicit verbal descriptions or narrative accounts of sexually explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse that is intended to arouse or satisfy the sexual desire of either the child or the person, provided that no conviction shall be had for a violation of this subsection on the unsupported testimony of a child.
   2. Any person who violates paragraph (1) of this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than ten years or by a fine of not more than $10,000.00; provided, however, that if at the time of the offense the victim was at least 14 years of age and the defendant was 18 years of age or younger, then the defendant shall be guilty of a misdemeanor.
6. 1. It shall be unlawful for any owner or operator of a computer online service, Internet service, local bulletin board service, or other electronic device that is in the business of providing a service that may be used to sexually exploit a child to intentionally or willfully to permit a subscriber to utilize the service to commit a violation of this Code section, knowing that such person intended to utilize such service to violate this Code section. No owner or operator of a public computer online service, Internet service, local bulletin board service, or other electronic device that is in the business of providing a service that may be used to sexually exploit a child shall be held liable on account of any action taken in good faith in providing the aforementioned services.
   2. Any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor of a high and aggravated nature.
7. The sole fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under this Code section shall not constitute a defense to prosecution under this Code section.
8. A person is subject to prosecution in this state pursuant to Code Section 17-2-1, relating to jurisdiction over crimes and persons charged with commission of crimes generally, for any conduct made unlawful by this Code section which the person engages in while:
   1. Either within or outside of this state if, by such conduct, the person commits a violation of this Code section which involves a child who resides in this state or another person believed by such person to be a child residing in this state; or
   2. Within this state if, by such conduct, the person commits a violation of this Code section which involves a child who resides within or outside this state or another person believed by such person to be a child residing within or outside this state.
9. Any violation of this Code section shall constitute a separate offense.

(Code 1981, §16-12-100.2, enacted by Ga. L. 1999, p. 232, § 2; Ga. L. 2003, p. 140, § 16; Ga. L. 2003, p. 573, § 3; Ga. L. 2007, p. 47, § 16/SB 103; Ga. L. 2007, p. 283, § 2/SB 98; Ga. L. 2013, p. 663, § 3/HB 156; Ga. L. 2016, p. 864, § 16/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (f)(1).

- For article, "Revenge Pornography and First Amendment Exceptions," see 65 Emory L.J. 661 (2016). For article, "Sex Crimes in the 21st Century: Human Trafficking, Pornography, and Prostitution the Problems with Pornography Regulation: Lessons from History," see 68 Emory L.J. 867 (2019). For article, "Sex Crimes in the 21st Century: Human Trafficking, Pornography, and Prostitution Changing Faces: Morphed Child Pornography Images and the First Amendment," see 68 Emory L.J. 909 (2019). For note on the 2003 amendment to this Code section, see 20 Ga. St. U.L. Rev. 84 (2003).

ANALYSIS

• General Considerations
• Application

General Considerations

Statute was not unconstitutionally overbroad.

- O.C.G.A. § 16-12-100.2(e)(1), obscene Internet contact with a child, did not effect a real and substantial constraint upon constitutionally protected expression and therefore did not violate the First Amendment's free speech guarantee; the word "contact" was modified by the phrase "that is intended to arouse or satisfy the sexual desire of either the child or the person," rendering it unlikely that innocuous communications would violate the statute. Scott v. State, 299 Ga. 568, 788 S.E.2d 468 (2016), cert. denied, 137 S. Ct. 1328, 197 L. Ed. 2d 517 (U.S. 2017).

- To the extent that a defendant's conduct before the effective date of O.C.G.A. § 16-12-100.2 violated criminal statutes already in existence, there is no indication that the legislature intended to prevent prosecution under such statutes simply because the defendant utilized a computer in the commission of the crime. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182 (2000).

- Use of computer online services in one county in the State of Georgia, even though the user is in another county, is sufficient to prove venue under O.C.G.A. § 16-12-100.2. Selfe v. State, 290 Ga. App. 857, 660 S.E.2d 727 (2008), cert. denied, No. S08C0956, 2008 Ga. LEXIS 493 (Ga. 2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376 (2015).

- Contrary to the defendant's claim, a violation of one of the other statutes named in O.C.G.A. § 16-12-100.2(d)(1) was not required to effectively charge a crime under the statute. Wetzel v. State, 298 Ga. App. 20, 779 S.E.2d 263 (2014).

- Georgia Supreme Court holds that direct communication is not required for a conviction under O.C.G.A. § 16-12-100.2(d)(1) as solicitation of a child to commit the acts prohibited may be conducted through an adult intermediary who is believed to be in a position of trust or authority with respect to the child. State v. Cosmo, 295 Ga. 76, 757 S.E.2d 819 (2014).

- For purposes of O.C.G.A. § 16-12-100.2, the state was not required to present proof that the defendant knew the victim was under 16 at the time of the act and the trial court correctly denied the defendant a directed verdict on that basis. Wetzel v. State, 298 Ga. App. 20, 779 S.E.2d 263 (2014).

- State had jurisdiction to prosecute the defendant for computer child exploitation because the evidence showed that after being told that the person the defendant thought was a 14-year-old girl lived in Georgia, the defendant violated O.C.G.A. § 16-12-100.2 by utilizing computer on-line services to communicate with the purported child and entice the child to meet the defendant to engage in sexual activity. Brown v. State, 321 Ga. App. 798, 743 S.E.2d 474 (2013).

- Defendant's convictions under the computer pornography and child exploitation act, O.C.G.A. § 16-12-100.2, required defendant to register as a sex offender pursuant to O.C.G.A. § 42-1-12, as defendant's conviction for pornography and child exploitation under § 16-12-100.2(d) for the use of an on-line Internet service in the attempt to commit child molestation was within the definition of a "criminal offense against a victim who was a minor," pursuant to O.C.G.A. § 42-1-12; defendant had communicated with a police officer who posed as a 14-year-old girl, sent her sexually explicit messages, and arranged a meeting with her. Spivey v. State, 274 Ga. App. 834, 619 S.E.2d 346 (2005).

- Victim and accused must be together in order for the crime of child molestation to be committed pursuant to O.C.G.A. § 16-12-100.2. Selfe v. State, 290 Ga. App. 857, 660 S.E.2d 727 (2008), cert. denied, No. S08C0956, 2008 Ga. LEXIS 493 (Ga. 2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376 (2015).

Trial court erred by convicting defendant of child molestation, pursuant to O.C.G.A. § 16-12-100.2, with regard to defendant's actions of engaging in internet communications with an undercover police officer whom defendant thought was a 15-year-old child; the state only set forth that defendant was in one county and the victim was in another, which was insufficient to show that the victim and defendant were in the presence of each other as required by the statute. Selfe v. State, 290 Ga. App. 857, 660 S.E.2d 727 (2008), cert. denied, No. S08C0956, 2008 Ga. LEXIS 493 (Ga. 2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376 (2015).

- Indictment and verdict against the defendant were not contrary to law because there was no actual victim and the victim described in the complaint, a fourteen-year-old female named "Sara," was a fiction created by law enforcement agents was proper because O.C.G.A. § 16-12-100.2(d) expressly provides that the sole fact that an undercover operative or law enforcement officer was involved in the detection and investigation under § 16-12-100.2 shall not constitute a defense. Lopez v. State, 326 Ga. App. 770, 757 S.E.2d 436 (2014).

Trial court properly refused to apply the rule of lenity with regard to the defendant's conviction under O.C.G.A. § 16-12-100.2(e)(1), and the defendant was not entitled to be convicted of only the misdemeanor offense of furnishing obscene material to a minor, in violation of § 16-12-100.1(b)(1)(B), because the defendant was charged with using Internet services to contact a person believed to be a 15-year-old child and that the contact contained explicit verbal descriptions of sexual conduct that were intended to arouse and satisfy the sexual desires of the defendant; the intent to arouse was not an element included in the misdemeanor offense. Selfe v. State, 290 Ga. App. 857, 660 S.E.2d 727 (2008), cert. denied, No. S08C0956, 2008 Ga. LEXIS 493 (Ga. 2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376 (2015).

- Just as solicitation of prostitution can be made through a third party pimp, solicitation of a child to commit the acts prohibited by O.C.G.A. § 16-12-100.2(d)(1) may be conducted through an adult intermediary who is believed to be in a position of trust or authority with respect to the child. State v. Cosmo, 295 Ga. 76, 757 S.E.2d 819 (2014).

- Defendant was not entrapped by law enforcement because: (1) the defendant, via electronic communications, asked an undercover officer who was posing as a teenage girl to engage in sexual intercourse and oral sodomy with the defendant, even after the "teenage girl" told the defendant that the teenage girl was 14 years old; (2) the defendant initiated the conversation during which a meeting was arranged and the defendant described in detail the sex acts which the defendant wished to perform on the teenage girl at the park where the two discussed meeting for sex; (3) when the defendant arrived at the park, the defendant possessed a condom on the defendant's person; and (4) when the officers who stopped the defendant at the park explained that the officers were with a task force for Internet crimes against children, the defendant immediately responded that the defendant was at the park to counsel a 14-year-old girl about the dangers of meeting men from the Internet. Logan v. State, 309 Ga. App. 95, 709 S.E.2d 302, cert. denied, No. S11C1101, 2011 Ga. LEXIS 579, cert. denied, 132 S. Ct. 823, 181 L. Ed. 2d 533 (2011).

When the defendant was charged with using the Internet to seduce, solicit, lure, or entice a child or a person believed to be a child to commit an illegal sex act, under O.C.G.A. § 16-12-100.2(d)(1), attempted aggravated child molestation, under O.C.G.A. §§ 16-4-1 and16-6-4(c), and attempted child molestation, under O.C.G.A. §§ 16-4-1 and16-6-4(a), it was not error to deny the defendant's motion for a directed verdict of acquittal based on entrapment because the jury's determination that entrapment did not occur was supported by evidence that: (1) the defendant continued communicating with a person the defendant believed to be 14 years old, including having sexually explicit conversations with the person in which the defendant stated the defendant wanted "a lot of oral," after the defendant learned that the person was 14 years old; (2) the defendant discussed with the person how the person could meet the defendant if the person could not drive, inquired whether the person had ever snuck away from home before, and stated that the defendant believed the union would be legal if the defendant were 16 years old, instead of the defendant's actual age; (3) the defendant left the defendant's home of Tennessee to meet a purportedly 14-year-old girl in order to have sex with the person, which the defendant admitted in the defendant's statements to officers; and (4) the defendant brought condoms with the defendant, which the defendant stated were to prevent any "accidents" in the event the defendant was able to have sex with the person. Millsaps v. State, 310 Ga. App. 769, 714 S.E.2d 661 (2011).

- Under O.C.G.A. § 16-12-100.2(d)(1), even if a defendant believes that the defendant is communicating with a child, a communication is prohibited only if the defendant engages in the communication for a prohibited underlying purpose, seducing or enticing a child so that the defendant can commit an act of child molestation. Lopez v. State, 326 Ga. App. 770, 757 S.E.2d 436 (2014).

- Evidence was sufficient to establish the defendant's guilt of computer pornography and child exploitation in violation of the Computer Pornography and Child Exploitation Prevention Act, O.C.G.A. § 16-12-100.2(d)(1), because the evidence established that the defendant committed the offense by using a computer on-line service to solicit sex from a person who the defendant believed was a fifteen-year-old girl, an act which would have constituted child molestation; although the on-line solicitation crime references child molestation as an underlying purpose, the principal act proscribed by the crime is solicitation and does not require the accomplishment of an act of child molestation. Bolton v. State, 310 Ga. App. 801, 714 S.E.2d 377 (2011).

Victim's testimony that the victim and the defendant exchanged text messages about penis sizes and containing nude photos was sufficient for a jury to find the defendant guilty of using a cell phone to solicit a child under 16 to send and receive nude photos. Wetzel v. State, 298 Ga. App. 20, 779 S.E.2d 263 (2014).

In support of the defendant's conviction for computer child exploitation, the jury was authorized to find that, through email, the defendant urged and requested a person the defendant believed to be a child to engage in immoral or indecent acts. Schlesselman v. State, 332 Ga. App. 453, 773 S.E.2d 413 (2015).

Since O.C.G.A. § 16-12-100.2 listed on-line messaging service as a specific type of computer on-line service, an essential element of the offense, the evidence authorized a jury to find beyond a reasonable doubt that the defendant used an on-line messaging service to contact a child with explicit verbal and visual depictions of sexual conduct. Skelhorn v. State, 332 Ga. App. 782, 773 S.E.2d 45 (2015), cert. denied, No. S15C1661, 2015 Ga. LEXIS 711 (Ga. 2015).

Evidence was sufficient to convict the defendant of three counts of computer or electronic pornography and child exploitation as the evidence established that the defendant was the perpetrator because an officer created an online profile of a 14-year-old girl for use in the officer's investigations of Internet crimes against children; in pretrial interviews with the officer, the defendant admitted that the defendant's username was the one that contacted the officer; that the defendant was the person in the pictures that were sent to the officer; and that it was safe to say that the defendant was the person chatting with the officer on the relevant dates and that it was the defendant's penis shown on the webcam. Patch v. State, 337 Ga. App. 233, 786 S.E.2d 882 (2016).

- Because the defendant's prior convictions under O.C.G.A. § 16-12-100.2(d)(1) and (e)(1) and defendant's indictment for aggravated sexual battery, aggravated child molestation, and child molestation alleged crimes that were sexual in nature with minors and involved a lustful disposition, the independent offenses were admissible under Ga. Unif. Super. Ct. R. 31.3(B). Butler v. State, 311 Ga. App. 873, 717 S.E.2d 649 (2011).

- Trial court did not err in granting the defendant's special demurrer and dismissing the indictment charging the defendant with attempted child molestation, O.C.G.A. §§ 16-4-1 and16-6-4, attempted aggravated child molestation, O.C.G.A. §§ 16-4-1 and16-6-4(c), and computer pornography, O.C.G.A. § 16-12-100.2(d), because the indictment contained inadequate information as to the alleged victim; attempted child molestation, attempted aggravated child molestation, and computer pornography are crimes against a particular person and require the victim to be identified in the indictment, even when the victim was a police officer using a pseudonym. State v. Grube, 315 Ga. App. 885, 729 S.E.2d 42 (2012).

- With regard to an indictment charging the defendant with computer pornography, attempted aggravated child molestation, and attempted child molestation arising from an Internet sting operation, the appellate court erred by finding that a second indictment was insufficient to withstand a special demurrer because the indictment identified the victim by the only name which the defendant knew the intended victim by and informed the defendant that the intended victim was not an actual child. State v. Grube, 293 Ga. 257, 744 S.E.2d 1 (2013).

- Trial court erred by granting the defendant's special demurrer and quashing the indictment charging obscene Internet contact with a child because the indictment identified the victim by the name known to the defendant and informed the defendant that it was someone defendant thought was a 14-year-old girl, which was sufficient, and that the victim may also have been a fictitious persona created by an undercover officer was a fact to be proved at trial and its absence was not a material defect. State v. Cohron, 324 Ga. App. 137, 749 S.E.2d 416 (2013).

- Trial court did not abuse the court's discretion in ruling that whether the defendant would have committed the crime charged absent the inducement of law enforcement officers was a question for the jury without the assistance of expert opinion evidence because expert testimony that a defendant does not have the psychological characteristics of a person who is predisposed to having sexual contact with under-aged children invades the province of the jury as to the ultimate issue. Lopez v. State, 326 Ga. App. 770, 757 S.E.2d 436 (2014).

- Because the offenses of criminal attempt to commit child molestation and computer child exploitation each required proof of a fact the other did not, the trial court did not err in sentencing the defendant on both convictions. Brown v. State, 321 Ga. App. 798, 743 S.E.2d 474 (2013).

Cited in Barton v. State, 286 Ga. App. 49, 648 S.E.2d 660 (2007); Castaneira v. State, 321 Ga. App. 418, 740 S.E.2d 400 (2013).

RESEARCH REFERENCES

ALR.

- Validity of state statutes and administrative regulations regulating internet communications under commerce clause and First Amendment of federal constitution, 98 A.L.R.5th 167.

Validity, construction, and application of state statutes prohibiting child luring as applied to cases involving luring of child by means of verbal or other nonelectronic communications, 35 A.L.R.6th 361.