2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 3 - Defenses to Criminal Prosecutions
Article 1 - Responsibility
§ 16-3-6. Affirmative Defenses to Certain Sexual Crimes

1. As used in this Code section, the term:
   1. "Coercion" shall have the same meaning as set forth in Code Section 16-5-46.
   2. "Deception" shall have the same meaning as set forth in Code Section 16-5-46.
   3. "Sexual crime" means prostitution, sodomy, solicitation of sodomy, or masturbation for hire as such offenses are proscribed in Chapter 6 of Title 16.
   4. "Sexual servitude" shall have the same meaning as set forth in Code Section 16-5-46.
2. A person shall not be guilty of a sexual crime if the conduct upon which the alleged criminal liability is based was committed by an accused who was:
   1. Less than 18 years of age at the time of the conduct such person was being trafficked for sexual servitude in violation of subsection (c) of Code Section 16-5-46; or
   2. Acting under coercion or deception while the accused was being trafficked for sexual servitude in violation of subsection (c) of Code Section 16-5-46.
3. A defense based upon any of the provisions of this Code section shall be an affirmative defense.

(Code 1981, §16-3-6, enacted by Ga. L. 2011, p. 217, § 3/HB 200; Ga. L. 2015, p. 675, § 4-1/SB 8.)

- Modification of orders of adjudicated delinquent children for sexual crimes, § 15-11-32.

Affirmative defenses, § 16-3-28.

Investigation of trafficking offenses, § 35-3-4.3.

- Ga. L. 2015, p. 675, § 1-1/SB 8, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Safe Harbor/Rachel's Law Act.'"

Ga. L. 2015, p. 675, § 1-2/SB 8, not codified by the General Assembly, provides: "(a) The General Assembly finds that arresting, prosecuting, and incarcerating victimized children serves to retraumatize children and increases their feelings of low self esteem, making the process of recovery more difficult. The General Assembly acknowledges that both federal and state laws recognize that sexually exploited children are the victims of crime and should be treated as victims. The General Assembly finds that sexually exploited children deserve the protection of child welfare services, including family support, crisis intervention, counseling, and emergency housing services. The General Assembly finds that it is necessary and appropriate to adopt uniform and reasonable assessments and regulations to help address the deleterious secondary effects, including but not limited to, prostitution and sexual exploitation of children, associated with adult entertainment establishments that allow the sale, possession, or consumption of alcohol on premises and that provide to their patrons performances and interaction involving various forms of nudity. The General Assembly finds that a correlation exists between adult live entertainment establishments and the sexual exploitation of children. The General Assembly finds that adult live entertainment establishments present a point of access for children to come into contact with individuals seeking to sexually exploit children. The General Assembly further finds that individuals seeking to exploit children utilize adult live entertainment establishments as a means of locating children for the purpose of sexual exploitation. The General Assembly acknowledges that many local governments in this state and in other states found deleterious secondary effects of adult entertainment establishments are exacerbated by the sale, possession, or consumption of alcohol in such establishments.

"(b) The purpose of this Act is to protect a child from further victimization after he or she is discovered to be a sexually exploited child by ensuring that a child protective response is in place in this state. The purpose and intended effect of this Act in imposing assessments and regulations on adult entertainment establishments is not to impose a restriction on the content or reasonable access to any materials or performances protected by the First Amendment of the United States Constitution or Article I, Section I, Paragraph V of the Constitution of this state."

- For article on the 2011 enactment of this Code section, see 28 Ga. St. U. L. Rev. 131 (2011). For article, "Crimes and Offenses: Crimes Against the Person," see 28 Ga. St. U. L. Rev. 131 (2011). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 43 (2015).

ARTICLE 2 JUSTIFICATION AND EXCUSE

Law reviews.

- For note, "Heating Up and Cooling Down: Modifying the Provocation Defense by Expanding Cooling Time," see 54 Ga. L. Rev. 761 (2020).

JUDICIAL DECISIONS

Defendant does not bear burden of persuasion as to affirmative defenses.

- Affirmative defenses authorized by the former Criminal Code and former Code 1933, § 26-1003 (see now O.C.G.A. § 16-4-5) imply that if a defendant presents one it is to defendant's advantage and to defendant's interest to affirmatively show it as best defendant can, but defendant has no burden to show it nor does defendant have burden of persuasion. Moore v. State, 137 Ga. App. 735, 224 S.E.2d 856, rev'd on other grounds, 237 Ga. 269, 227 S.E.2d 241 (1976).

Cited in Grainger v. State, 138 Ga. App. 753, 227 S.E.2d 483 (1976); Perkins v. State, 151 Ga. App. 199, 259 S.E.2d 193 (1979); Powell v. State, 154 Ga. App. 568, 269 S.E.2d 70 (1980); Patterson v. Fuller, 654 F. Supp. 418 (N.D. Ga. 1987); Hightower v. State, 224 Ga. App. 703, 481 S.E.2d 867 (1997), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019); Budhani v. State, 306 Ga. 315, 830 S.E.2d 195 (2019).

RESEARCH REFERENCES

ALR.

- Homicide or assault in attempting to prevent elopement, 8 A.L.R. 660.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.