2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 5 - Crimes Against the Person
Article 6 - Feticide
§ 16-5-80. Feticide; Voluntary Manslaughter of an Unborn Child; Penalties

1. For the purposes of this Code section, the term "unborn child" means a member of the species homo sapiens at any stage of development who is carried in the womb.
2. A person commits the offense of feticide if he or she willfully and without legal justification causes the death of an unborn child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, or if he or she, when in the commission of a felony, causes the death of an unborn child.
3. A person convicted of the offense of feticide shall be punished by imprisonment for life.
4. A person commits the offense of voluntary manslaughter of an unborn child when such person causes the death of an unborn child under circumstances which would otherwise be feticide and if such person acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; provided, however, that, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as feticide.
5. A person convicted of the offense of voluntary manslaughter of an unborn child shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than 20 years.
6. Nothing in this Code section shall be construed to permit the prosecution of:
   1. Any person for conduct relating to an abortion for which the consent of the pregnant woman, or person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;
   2. Any person for any medical treatment of the pregnant woman or her unborn child; or
   3. Any woman with respect to her unborn child.

(Code 1981, §16-5-80, enacted by Ga. L. 1982, p. 2499, § 1; Ga. L. 2006, p. 643, § 2/SB 77.)

- Ga. L. 2006, p. 643, § 5/SB 77, not codified by the General Assembly, provides that the amendment by that Act shall apply to all offenses committed on or after July 1, 2006.

- For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 37 (2006). For note, "Incubating for the State: The Precarious Autonomy of Persistently Vegetative and Brain-Dead Pregnant Women," see 22 Ga. L. Rev. 1103 (1988).

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A. § 16-5-80 informs all of what actions the state prohibits with sufficient definiteness that ordinary people can understand and thus is not unconstitutionally vague. Brinkley v. State, 253 Ga. 541, 322 S.E.2d 49 (1984).

O.C.G.A. § 16-5-80 is not unconstitutionally vague, since the case law of Georgia has long adopted the common-law understanding of "quick": when the fetus is so far developed as to be capable of movement within the mother's womb. Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987).

O.C.G.A. § 16-5-80 is not unconstitutional either because there is no unlawful taking of a human life or because an unborn child is not a "person" within the meaning of the Fourteenth Amendment, a proposition that is simply immaterial in the present context to whether a state can prohibit the destruction of a fetus. Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987).

O.C.G.A. § 16-5-80 does not violate equal protection by creating two classifications that are arbitrary and capricious; although O.C.G.A. § 16-12-140 punishes the offense of criminal abortion with imprisonment for not less than one year nor more than 10 years, while O.C.G.A. § 16-5-80 requires a life sentence, the distinction between the sentences required O.C.G.A. § 16-5-80 section and the abortion statute, O.C.G.A. § 16-12-140, is rationally related to legitimate governmental purposes. Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987).

- In a case in which defendant was convicted of murdering defendant's girlfriend and an unborn child in violation of 18 U.S.C. § 1111, O.C.G.A. § 16-5-80, incorporated by 18 U.S.C. § 13, and 18 U.S.C. § 924(c)(1) and (j), defendant's argument that the defendant's due process rights were violated because the case investigators intentionally and calculatingly refused to develop information which might implicate other suspects was without merit. The government was not required to develop exculpatory evidence for the defense. United States v. Natson, F.3d (11th Cir. May 6, 2008)(Unpublished).

- Defendant's convictions for aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) and feticide in violation of O.C.G.A. § 16-5-80(a) did not merge for sentencing purposes because the victim of the aggravated assault was the defendant's girlfriend, while the victim of the feticide was the girlfriend's unborn child; the merger doctrine does not apply if each of the charged crimes was committed against a different victim. Carmichael v. State, 305 Ga. App. 651, 700 S.E.2d 650 (2010).

- Evidence that the defendant, who threatened to kill the victim in the past, took the victim to a retention pond, shot the victim, wrapped the body with a large boulder, placed the victim in a retention pond, and, for days, misled the victim's mother and authorities about the victim's whereabouts was sufficient to support convictions for malice murder, felony murder, feticide, aggravated assault, and possession of a firearm. Platt v. State, 291 Ga. 631, 732 S.E.2d 75 (2012).

- Evidence was sufficient to support a finding that the appellant was a party to the act of fleeing and attempting to allude a police officer; consequently, since the evidence was sufficient for the jury to find the appellant guilty of the underlying felony on which the two felony murder counts were based, the element of fleeing and attempting to allude a police officer as charged in the feticide count was also established. McNeely v. State, 296 Ga. 422, 768 S.E.2d 751 (2015).

Cited in Billingsley v. State, 183 Ga. App. 850, 360 S.E.2d 451 (1987); Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008).

ARTICLE 7 STALKING

Law reviews.

- For review of 1998 legislation relating to crimes and offenses, see 15 Ga. St. U. L. Rev. 62 (1998). For note, "Stalking the Stalker: Developing New Laws to Thwart Those Who Terrorize Others," see 27 Ga. L. Rev. 285 (1992). For note on 1993 enactment of this article, see 10 Ga. St. U. L. Rev. 95 (1993). For comment, "Is Georgia's Stalking Law Unconstitutionally Vague?," see 45 Mercer L. Rev. 853 (1994).