2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 6 - Sexual Offenses
§ 16-6-5.1. (For Effective Date, See note.) Improper Sexual Contact by Employee, Agent, or Foster Parent; Consent Not a Defense; Penalty

1. As used in this Code section, the term:
   1. "Agent" means an individual authorized to act on behalf of another, with or without compensation.

      (1.1) "Child-placing agency" shall have the same meaning as set forth in Code Section 49-5-3.

   2. "Child welfare and youth services" shall have the same meaning as set forth in Code Section 49-5-3.
   3. "Disability" shall have the same meaning as set forth in Code Section 37-1-1.
   4. "Employee" means an individual who works for salary, wages, or other remuneration for an employer.

      (4.1) "Foster care home" means a private home used by a child-placing agency which has been approved by the child-placing agency to provide 24 hour care, lodging, supervision, and maintenance for one or more children or a private home which has been approved and is directly supervised by the Department of Human Services to provide 24 hour care, lodging, supervision, and maintenance for one or more children.

      (4.2) "Foster parent" means the person or persons who provide care, lodging, supervision, and maintenance for one or more children in a foster care home used by a child-placing agency or in a foster care home approved and directly supervised by the Department of Human Services.

   5. "Intimate parts" means the genital area, groin, inner thighs, buttocks, or breasts of a person.
   6. "Psychotherapy" means the professional treatment or counseling of a mental or emotional illness, symptom, or condition.
   7. "School" means any educational institution, public or private, providing elementary or secondary education to children at any level, kindergarten through twelfth grade, or the equivalent thereof if grade divisions are not used, including extracurricular programs of such institution.
   8. "Sensitive care facility" means any facility licensed or required to be licensed under Code Section 31-7-3, 31-7-12, or 31-7-12.2 or who is required to be licensed pursuant to Code Section 31-7-151 or 31-7-173.
   9. "Sexual contact" means any contact involving the intimate parts of either person for the purpose of sexual gratification of either person.
   10. "Sexually explicit conduct" shall have the same meaning as set forth in Code Section 16-12-100.
2. An employee or agent commits the offense of improper sexual contact by employee or agent in the first degree when such employee or agent knowingly engages in sexually explicit conduct with another person whom such employee or agent knows or reasonably should have known is contemporaneously:
   1. Enrolled as a student at a school of which he or she is an employee or agent;
   2. Under probation, parole, accountability court, or pretrial diversion supervision of the office or court of which he or she is an employee or agent;
   3. Being detained by or is in the custody of any law enforcement agency of which he or she is an employee or agent;
   4. A patient in or at a hospital of which he or she is an employee or agent;
   5. In the custody of a correctional facility, juvenile detention facility, facility providing services to a person with a disability, or a facility providing child welfare and youth services of which he or she is an employee or agent;
   6. The subject of such employee or agent's actual or purported psychotherapy treatment or counseling; or
   7. Admitted for care at a sensitive care facility of which he or she is an employee or agent.
3. A person commits the offense of improper sexual contact by employee or agent in the second degree when such employee or agent knowingly engages in sexual contact, excluding sexually explicit conduct, with another person whom such employee or agent knows or reasonably should have known is contemporaneously:
   1. Enrolled as a student at a school of which he or she is an employee or agent;
   2. Under probation, parole, accountability court, or pretrial diversion supervision of the office or court of which he or she is an employee or agent;
   3. Being detained by or is in the custody of a law enforcement agency of which he or she is an employee or agent;
   4. A patient in or at a hospital of which he or she is an employee or agent;
   5. In the custody of a correctional facility, juvenile detention facility, facility providing services to a person with a disability, or facility providing child welfare and youth services of which he or she is an employee or agent;
   6. The subject of such employee or agent's actual or purported psychotherapy treatment or counseling; or
   7. Admitted for care at a sensitive care facility of which he or she is an employee or agent.
4. Consent of the victim shall not be a defense to a prosecution under this Code section.
5. 1. This Code section shall not apply to sexually explicit conduct or sexual contact between individuals lawfully married to each other.
   2. This Code section shall not apply to a student who is enrolled at the same school as the victim.
6. A person convicted of improper sexual contact by employee or agent in the first degree or improper sexual contact by a foster parent in the first degree shall be punished by imprisonment for not less than one nor more than 25 years or by a fine not to exceed $100,000.00, or both; provided, however, that:
   1. Except as provided in paragraph (2) of this subsection, any person convicted of the offense of improper sexual contact by employee or agent or improper sexual contact by a foster parent with a child under the age of 16 years shall be punished by imprisonment for not less than 25 nor more than 50 years or a fine not to exceed $100,000.00, or both, and shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2; and
   2. If at the time of the offense the victim of the offense is at least 14 years of age but less than 21 years of age and the person is 21 years of age or younger and is no more than 48 months older than the victim, such person shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.
7. A person convicted of improper sexual contact by employee or agent in the second degree or improper sexual contact by a foster parent in the second degree shall be punished as for a misdemeanor of a high and aggravated nature and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2; provided, however, that:
   1. Except as provided in paragraphs (2) and (3) of this subsection, any person convicted of the offense of improper sexual contact by employee or agent in the second degree or improper sexual contact by a foster parent in the second degree with a child under the age of 16 years shall be punished by imprisonment for not less than five nor more than 25 years or by a fine not to exceed $25,000.00, or both, and shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2;
   2. If at the time of the offense the victim of the offense is at least 14 years of age but less than 21 years of age and the person is 21 years of age or younger and is no more than 48 months older than the victim, such person shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2; and
   3. Except as provided in paragraph (2) of this subsection, upon a second or subsequent conviction of the offense of improper sexual contact by employee or agent in the second degree or improper sexual contact by a foster parent in the second degree, the person shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than five years and shall be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.

(b.1)A person commits the offense of improper sexual contact by a foster parent in the first degree when he or she is a foster parent and knowingly engages in sexually explicit conduct with his or her current foster child.

(c.1)A person commits the offense of improper sexual contact by a foster parent in the second degree when he or she is a foster parent and knowingly engages in sexual contact, excluding sexually explicit conduct, with his or her current foster child.

(Code 1981, §16-6-5.1, enacted by Ga. L. 1983, p. 721, § 1; Ga. L. 1990, p. 1003, § 1; Ga. L. 1991, p. 1108, § 1; Ga. L. 1992, p. 6, § 16; Ga. L. 1992, p. 1940, § 1; Ga. L. 1999, p. 562, § 5; Ga. L. 2006, p. 379, § 13/HB 1059; Ga. L. 2010, p. 168, § 2/HB 571; Ga. L. 2011, p. 227, § 5/SB 178; Ga. L. 2015, p. 422, § 5-20/HB 310; Ga. L. 2016, p. 864, § 16/HB 737; Ga. L. 2019, p. 912, § 1/SB 9; Ga. L. 2020, p. 245, § 1/HB 911.)

- Actions for childhood sexual abuse, § 9-3-33.1.

Assault and battery generally, § 16-5-20 et seq.

Visitation with minors by convicted sexual offenders while imprisoned, § 42-5-56.

- Pursuant to Code Section 28-9-5, in 2020, "Department of Human Services" was substituted for "Department of Human Resources" at the end of paragraph (a)(4.2).

- Ga. L. 1999, p. 562, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Crimes Against Elderly Act of 1999'."

Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:

"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;

"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;

"(3) Providing for community and public notification concerning the presence of sexual offenders;

"(4) Collecting data relative to sexual offenses and sexual offenders;

"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and

"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.

"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."

Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides, in part, that the amendment by this Act shall apply to sentences entered on or after July 1, 2015.

- For article, "The Georgia Roundtable Discussion Model: Another Way to Approach Reforming Rape Laws," see 20 Ga. St. U. L. Rev. 565 (2004). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005). For annual survey of law on criminal law, see 62 Mercer L. Rev. 87 (2010). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For note on 1990 amendment of this Code section, see 7 Ga. St. U. L. Rev. 258 (1990). For note on 1992 amendment of this Code section, see 9 Ga. St. U. L. Rev. 227 (1992).

JUDICIAL DECISIONS

"In custody" construed.

- When a probationer was free to go about the probationer's normal activities subject to a court imposed curfew and the probationer's refraining from any illegal acts, the probationer was not a person "in custody" or "in the custody of the law," as contemplated by O.C.G.A. § 16-6-5.1. Palmer v. State, 260 Ga. 330, 393 S.E.2d 251 (1990) (decided prior to 1991 amendment).

- Indictment stating that defendant was a "Surveillance Officer working for a county probation office" who had "supervisory and disciplinary authority" over a probationer is sufficient to allege that defendant was a "probation officer" within the meaning of O.C.G.A. § 16-6-5.1. Belvin v. State, 221 Ga. App. 114, 470 S.E.2d 497 (1996).

- The 1990 Act amending subsection (b) to include a person "who is enrolled in a school" in the class of victims did not violate O.C.G.A. § 16-6-5.1. Randolph v. State, 269 Ga. 147, 496 S.E.2d 258 (1998).

Supervisory or disciplinary authority means that the teacher had the power either to direct the student in question, to require the student to comply with some form of directive, whether it be a school rule or an instruction from the defendant, or to take disciplinary action against the student for failure to comply with such a directive. Morrow v. State, 335 Ga. App. 73, 778 S.E.2d 848 (2015).

- O.C.G.A. § 16-6-5.1 was not void for vagueness as applied to an assistant principal of a high school charged with engaging in sexual contact with a student. Randolph v. State, 269 Ga. 147, 496 S.E.2d 258 (1998).

- Trial court properly granted the defendant's motion to quash or dismiss an indictment charging three counts of sexual assault of a student under former O.C.G.A. § 16-6-5.1(b)(1) because the defendant was not a teacher for purposes of the statute since the term was not defined and the defendant was only an uncertified substitute who monitored students and facilitated assistance for the students. State v. Rich, 348 Ga. App. 467, 823 S.E.2d 563 (2019).

- Showing that all teachers at a school, including the accused, have some kind of general authority over students in the school is insufficient to demonstrate the supervisory or disciplinary authority required to convict a defendant under O.C.G.A. § 16-6-5.1; rather, the statute requires the state to prove that the defendant had some kind of direct disciplinary or supervisory authority over the victim. Morrow v. State, 335 Ga. App. 73, 778 S.E.2d 848 (2015).

- Trial court did not err in dismissing the indictment against the defendant charging the defendant with six counts of sexual assault against a person in custody based on the defendant's sexual contact with three students at the high school where the defendant was employed because the defendant's job as a secretary at the school was strictly clerical in nature and did not fall within the definition of an administrator. State v. Hammonds, 325 Ga. App. 815, 755 S.E.2d 214 (2014).

- Trial court did not err in dismissing the indictment against the defendant charging the defendant with six counts of sexual assault against a person in custody based on the defendant's sexual contact with three male students at the high school where the defendant was employed because the classification of individuals who may be prosecuted in the education setting is limited to teachers, principals, assistant principals, or other administrators of the school, and a mere employee or agent of the school, such as the defendant, is not subject to prosecution. State v. Hammonds, 325 Ga. App. 815, 755 S.E.2d 214 (2014).

- Trial court did not err in dismissing the indictment against the defendant charging the defendant with six counts of sexual assault against a person in custody based on the defendant's sexual contact with three male students at the high school where the defendant was employed because, even if the defendant could be considered a teacher by virtue of the defendant's position as an assistant cheerleading coach, any supervisory or disciplinary responsibilities the defendant might have had would have been confined to the members of the junior varsity cheerleading team of which the three male students were not members. State v. Hammonds, 325 Ga. App. 815, 755 S.E.2d 214 (2014).

Although there was sufficient evidence presented to show that the defendant, a paraprofessional assigned to a special needs student, had supervisory or disciplinary authority over the victim as required to prove a violation of former O.C.G.A. § 16-6-5.1(b), the state admitted that the defendant was not a teacher and failed to prove that the defendant was a person to whom former paragraph (b)(1) applied requiring reversal of the conviction of sexual assault. State v. Morrow, 300 Ga. 403, 794 S.E.2d 37 (2016).

Defendant's conviction for the sexual assault of a 16-year-old student was properly reversed because the term "teacher" in the sexual assault statute did not mean a paraprofessional such as the defendant; the defendant did not do the sorts of things that teachers typically do as the defendant did not assign class work, homework or any other tasks, give lectures, teach lessons, grade work, administer tests, attend faculty meetings, or report to school on teacher workdays; the defendant did not devote any meaningful portion of the defendant's time to the instruction of students; and the defendant was legally proscribed from being employed as a teacher at a public school as the defendant did not have a teaching certificate. State v. Morrow, 300 Ga. 403, 794 S.E.2d 37 (2016).

- Trial court erred by denying a defendant's petition for release from the requirement that the defendant register as a sexual offender, pursuant to O.C.G.A. § 42-1-12, since the defendant's Texas conviction involving the use of the defendant's position as a clergyman to sexually assault two victims was not similar enough to any Georgia criminal statute that would have found the defendant to have been convicted of committing a dangerous sexual offense as that term was defined in § 42-1-12(a)(10)(A). Sharma v. State, 294 Ga. App. 783, 670 S.E.2d 494 (2008).

- In a prosecution under both O.C.G.A. §§ 16-6-5.1 and16-10-1, the trial court properly suppressed the oral and written statements made by the defendant, a public employee, during an internal investigation interview conducted by the Georgia Department of Corrections, and after the defendant was forbidden to seek the advice of counsel, as the defendant had an objective belief that a failure to cooperate with the investigation by taking part in the interview and signing a written document entitled "Notice of Interfering with On-Going Internal Investigation" would result in a loss of employment; thus, the defendant's right against self-incrimination was violated. State v. Aiken, 281 Ga. App. 415, 636 S.E.2d 156 (2006).

- Defendant's conviction of sexual assault against a person in custody, O.C.G.A. § 16-6-5.1, was supported by sufficient evidence, because the evidence showed that the defendant used the defendant's position as a police officer to induce the victim to have sex with the defendant, and consent of the victim was not a defense to prosecution. Furthermore, although the trial court erred in admitting hearsay evidence pursuant to former O.C.G.A. § 24-3-1 (see now O.C.G.A. § 24-8-802) to explain a detective's conduct in investigating the case, it was highly probable that the testimony did not contribute to the verdict. Krauss v. State, 263 Ga. App. 488, 588 S.E.2d 239 (2003).

Because the defendant, as a respiratory therapist, assessed the patients, decided what treatments would be used per certain protocols, and directed the patients while the treatments were performed, the defendant had the requisite supervisory authority over the patients the defendant treated sufficient to sustain the defendant's convictions for sexual assault against a patient in a hospital while the defendant had supervisory authority over the victims. Ellis v. State, 324 Ga. App. 497, 751 S.E.2d 129 (2013).

Defendant's convictions for sexual assault of a person in custody was supported by evidence that the defendant used the blue police lights to conduct a second traffic stop of the victim despite not having a legal reason for the stop, the victim did not think it was permissible to leave or refuse the defendant's instructions, the defendant pulled the victim out of the car, and the defendant forced the victim to perform oral sex on the defendant. Pierson v. State, 348 Ga. App. 765, 824 S.E.2d 657 (2019).

- When defendant appealed defendant's conviction on multiple counts of violating O.C.G.A. §§ 16-6-3,16-6-4,16-6-5, and16-6-5.1, defendant unsuccessfully argued that the trial court erred in admitting two similar transactions. As to the first similar transaction, defendant induced any alleged error in that defendant's own counsel was the first to elicit the testimony of that transaction, and as to the second transaction, the trial court did not clearly err in finding that, because it involved a sexual act by defendant in defendant's counseling office with a female whom defendant was counseling, it was sufficiently similar to one of the crimes at issue which alleged a sexual act by defendant in defendant's counseling office with a female. Evans v. State, 300 Ga. App. 180, 684 S.E.2d 311 (2009), cert. denied, No. S10C0215, 2010 Ga. LEXIS 304 (Ga. 2010).

- Because a student had reached the age of consent, the trial court erred in preventing defendant from presenting a consent defense at trial to a charge of sexual assault of a person enrolled in school under O.C.G.A. § 16-6-5.1. Chase v. State, 285 Ga. 693, 681 S.E.2d 116 (2009).

- Defendant's conviction under former paragraph (b)(1) of O.C.G.A. § 16-6-5.1 was reversed as the state offered no evidence to show that the defendant had any kind of direct authority over the victim, either as a paraprofessional/teacher or as a wrestling coach; there was no evidence showing that the defendant had the authority to give directives to the victim, to enforce school rules against the victim, or even to refer the victim to administrators for discipline. Morrow v. State, 335 Ga. App. 73, 778 S.E.2d 848 (2015).

- Because the defendant was only indicted for sexual assault against a patient in a hospital for engaging in sexual contact while the victims were patients in the hospital and while the defendant had supervisory authority over the victims, and the defendant was not charged with having disciplinary authority over the victims, the trial court did not err in the court's charge by providing the jury with only the definition of supervisory authority. Ellis v. State, 324 Ga. App. 497, 751 S.E.2d 129 (2013).

Cited in State v. Eastwood, 243 Ga. App. 822, 535 S.E.2d 246 (2000); Hammond v. Gordon County, 316 F. Supp. 2d 1262 (N.D. Ga. 2002).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required.

- Offenses arising from a violation of O.C.G.A. § 16-6-5.1 are offenses for which fingerprinting is required. 2019 Op. Att'y Gen. No. 19-3.

RESEARCH REFERENCES

ALR.

- Sufficiency of allegations or evidence of serious bodily injury to support charge of aggravated degree of rape, sodomy, or other sexual abuse, 103 A.L.R.6th 507.

Construction and application of 18 U.S.C.A. § 2242(2), proscribing sexual abuse of person incapable of appraising nature of conduct, declining participation, or communicating unwillingness to participate in sexual act, 83 A.L.R. Fed. 2d 1.