2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 2 - Criminal Liability
Article 2 - Parties to Crimes
§ 16-2-22. Criminal Responsibility of Corporations

1. A corporation may be prosecuted for the act or omission constituting a crime only if:
   1. The crime is defined by a statute which clearly indicates a legislative purpose to impose liability on a corporation, and an agent of the corporation performs the conduct which is an element of the crime while acting within the scope of his office or employment and in behalf of the corporation; or
   2. The commission of the crime is authorized, requested, commanded, performed, or recklessly tolerated by the board of directors or by a managerial official who is acting within the scope of his employment in behalf of the corporation.
2. For the purposes of this Code section, the term:
   1. "Agent" means any director, officer, servant, employee, or other person who is authorized to act in behalf of the corporation.
   2. "Managerial official" means an officer of the corporation or any other agent who has a position of comparable authority for the formulation of corporate policy or the supervision of subordinate employees.

(Code 1933, § 26-803, enacted by Ga. L. 1968, p. 1249, § 1.)

- Service of notice of filing of indictment, special presentment, or accusation against corporation, § 17-7-92.

- For survey article on business associations, see 34 Mercer L. Rev. 13 (1982). For annual survey of cases concerning business associations, see 39 Mercer L. Rev. 53 (1987). For article, "Individual Accountability for Corporate Crime," see 34 Ga. St. U. L. Rev. 335 (2018).

Only "top" management is intended to be covered by O.C.G.A. § 16-2-22; not every corporate agent is a "managerial official". Military Circle Pet Ctr. No. 94, Inc. v. State, 181 Ga. App. 657, 353 S.E.2d 555, rev'd on other grounds, 257 Ga. 388, 360 S.E.2d 248 (1987).

- Although O.C.G.A. § 16-9-50, defining the crime of deceptive business practices, does not contain in the statutory definition any indication of a legislative purpose to impose liability on a corporation, the state is not required to allege the provisions of O.C.G.A. § 16-2-22 in accusations under § 16-9-50, but only to prove that defendant corporation or managerial agent authorized deceptive practices. State v. Military Circle Pet Ctr. No. 94, Inc., 257 Ga. 388, 360 S.E.2d 248 (1987).

While a corporation may not be imprisoned, it may be fined, and the fine enforced by levy on its property. State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151, cert. denied, 454 U.S. 1055, 102 S. Ct. 601, 70 L. Ed. 2d 591, appeal dismissed, 454 U.S. 1074, 102 S. Ct. 626, 70 L. Ed. 2d 609 (1981).

- Pursuant to O.C.G.A. § 16-2-22(a), a corporation can be prosecuted for violating the law, and a court may sentence a corporation to serve a term for years (even though such sentence is incapable of enforcement) and may suspend that sentence and impose a fine. State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151, cert. denied, 454 U.S. 1055, 102 S. Ct. 601, 70 L. Ed. 2d 591, appeal dismissed, 454 U.S. 1074, 102 S. Ct. 626, 70 L. Ed. 2d 609 (1981).

- A corporation could be held liable in a civil action for RICO predicate acts performed by its employees within the scope of their employment. Cobb County v. Jones Group, 218 Ga. App. 149, 460 S.E.2d 516 (1995).

In an action in which an interexchange carrier asserted that it was not obligated to pay fees to a local carrier for misrepresented toll-free cell calls, an amendment to add claims alleging violations of under the Georgia RICO Act, O.C.G.A. § 16-14-1 et seq., was granted as corporate officers had actively presented the plan for payments not allowed under the tariff and there was substantial evidence that the local carrier misrepresented the origination of calls for which it charged. ITC Deltacom Communs. v. US LEC Corp., F. Supp. 2d (N.D. Ga. Mar. 15, 2004).

On remand from the U.S. Supreme Court, a federal appeals court held that legal workers employed by a Georgia rug manufacturer were entitled to sue their employer for state RICO violations because the corporation was a "person" for purposes of O.C.G.A. § 16-14-4; the court relied on the Supreme Court of Georgia's decision that O.C.G.A. § 16-2-22, which placed limits on corporate criminal liability, did not pertain to civil suits brought under the Georgia civil RICO Act. Williams v. Mohawk Indus., 465 F.3d 1277 (11th Cir. 2006), cert. denied, mot. denied, 549 U.S. 1260, 127 S. Ct. 1381, 167 L. Ed. 2d 174 (2007).

- Corporation could only be criminally liable for theft in Georgia pursuant to O.C.G.A. § 16-2-22(a)(2) for crimes by an officer or official who was acting within the scope of the office's employment on behalf of the corporation as the applicable theft statutes did not contain language that clearly indicated a legislative purpose to impose liability on a corporation. Schroerlucke v. United States, 100 Fed. Cl. 584 (Fed. Cl. 2011).

- Evidence was sufficient to support defendant corporation's conviction for theft by taking based upon the conduct of its principals while acting on behalf of the corporation. Davis v. State, 225 Ga. App. 564, 484 S.E.2d 284 (1997).

Cited in First Nat'l Bank & Trust Co. v. State, 141 Ga. App. 471, 233 S.E.2d 861 (1977); Classic Art Corp. v. State, 245 Ga. 448, 265 S.E.2d 577 (1980).

OPINIONS OF THE ATTORNEY GENERAL

When corporations are criminally responsible for violations of Surface Mining Act.

- Corporations will be criminally responsible for acts or omissions constituting violations of the Surface Mining Act (see now O.C.G.A. § 12-4-70 et seq.) if, but only if, activities constituting crime were authorized, requested, commanded, performed, or recklessly tolerated by either the board of directors or by an officer or other agent of comparable authority acting within scope of that person's authority in behalf of corporation. 1970 Op. Att'y Gen. No. 70-155.

RESEARCH REFERENCES

Am. Jur. 2d.

- 16 Am. Jur. 2d, Conspiracy, § 17. 18B Am. Jur. 2d, Corporations, §§ 1620 et seq., 1820 et seq. 40A Am. Jur. 2d, Homicide, § 4.

- Individual criminal responsibility of officer or employee for larceny or embezzlement, through corporate act, of property of third person, 33 A.L.R. 787.

Criminal liability of corporation for extortion, false pretenses, or similar offenses, 49 A.L.R.3d 820.

Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor, 9 A.L.R.4th 972.

• 16-3-1. Minimum age.
• 16-3-2. Mental capacity; insanity.
• 16-3-3. Delusional compulsion.
• 16-3-4. Intoxication.
• 16-3-5. Mistake of fact.
• 16-3-6. Affirmative defenses to certain sexual crimes.

• 16-3-20. Justification.
• 16-3-21. Use of force in defense of self or others; evidence of belief that force was necessary in murder or manslaughter prosecution.
• 16-3-22. Immunity from criminal liability of persons rendering assistance to law enforcement officers.
• 16-3-22.1. Persons who provide assistance to law enforcement officers or the Division of Family and Children Services when the health and safety of children are adversely affected and threatened.
• 16-3-23. Use of force in defense of habitation.
• 16-3-23.1. No duty to retreat prior to use of force in self-defense.
• 16-3-24. Use of force in defense of property other than a habitation.
• 16-3-24.1. Habitation and personal property defined.
• 16-3-24.2. Immunity from prosecution; exception.
• 16-3-25. Entrapment.
• 16-3-26. Coercion.
• 16-3-27. Benefit of clergy.
• 16-3-28. Affirmative defenses.

• 16-3-40. Alibi.

- Further provisions regarding defenses to criminal actions, §§ 16-4-4,16-4-5,16-4-9,16-5-25,16-8-10,16-8-16(c).

- For article, "Automatism and the Theory of Action," see 39 Emory L.J. 1191 (1990).

Withdrawal by Aggressor Reviving Right of Self-Defense, 3 POF2d 705.

Defense to Charge of Driving Under the Influence of Alcohol, 17 POF2d 1.

Defense to Charges of Sex Offense, 24 POF2d 515.

Criminal Law - The Battered Woman Defense, 34 POF2d 1.

Defenses, generally, 7 Am. Jur. Trials 555, § 83 et seq.

Self-Defense in Homicide Cases, 42 Am. Jur. Trials 151.

- Subsequent marriage as bar to prosecution for rape, 9 A.L.R. 339.

Illegal or fraudulent intent of prosecuting witness or person defrauded as defense in prosecution based on false representations, 128 A.L.R. 1520.

Recantation as defense in perjury prosecution, 64 A.L.R.2d 276.

Consent as defense in prosecution for sodomy, 58 A.L.R.3d 636.

Consent as defense to charge of criminal assault and battery, 58 A.L.R.3d 662.

Automatism or unconsciousness as defense to criminal charge, 27 A.L.R.4th 1067.

Criminal law: "official statement" mistake of law defense, 89 A.L.R.4th 1026.