2021 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. Sexual Exploitation of Children; Reporting Violation; Civil Forfeiture; Penalties

1. As used in this Code section, the term:
   1. "Minor" means any person under the age of 18 years.
   2. "Performance" means any play, dance, or exhibit to be shown to or viewed by an audience.
   3. "Producing" means producing, directing, manufacturing, issuing, or publishing.
   4. "Sexually explicit conduct" means actual or simulated:
      1. Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
      2. Bestiality;
      3. Masturbation;
      4. Lewd exhibition of the genitals or pubic area of any person;
      5. Flagellation or torture by or upon a person who is nude;
      6. Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude;
      7. Physical contact in an act of apparent sexual stimulation or gratification with any person's unclothed genitals, pubic area, or buttocks or with a female's nude breasts;
      8. Defecation or urination for the purpose of sexual stimulation of the viewer; or
      9. Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.
   5. "Visual medium" means any film, photograph, negative, slide, magazine, or other visual medium.
2. 1. It is unlawful for any person knowingly to employ, use, persuade, induce, entice, or coerce any minor to engage in or assist any other person to engage in any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.
   2. It is unlawful for any parent, legal guardian, or person having custody or control of a minor knowingly to permit the minor to engage in or to assist any other person to engage in sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.
   3. It is unlawful for any person knowingly to employ, use, persuade, induce, entice, or coerce any minor to engage in or assist any other person to engage in any sexually explicit conduct for the purpose of any performance.
   4. It is unlawful for any parent, legal guardian, or person having custody or control of a minor knowingly to permit the minor to engage in or to assist any other person to engage in sexually explicit conduct for the purpose of any performance.
   5. It is unlawful for any person knowingly to create, reproduce, publish, promote, sell, distribute, give, exhibit, or possess with intent to sell or distribute any visual medium which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct.
   6. It is unlawful for any person knowingly to advertise, sell, purchase, barter, or exchange any medium which provides information as to where any visual medium which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct can be found or purchased.
   7. It is unlawful for any person knowingly to bring or cause to be brought into this state any material which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct.
   8. It is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct.
3. A person who, in the course of processing or producing visual or printed matter either privately or commercially, has reasonable cause to believe that the visual or printed matter submitted for processing or producing depicts a minor engaged in sexually explicit conduct shall immediately report such incident, or cause a report to be made, to the Georgia Bureau of Investigation or the law enforcement agency for the county in which such matter is submitted. Any person participating in the making of a report or causing a report to be made pursuant to this subsection or participating in any judicial proceeding or any other proceeding resulting therefrom shall in so doing be immune from any civil or criminal liability that might otherwise be incurred or imposed, providing such participation pursuant to this subsection is made in good faith.
4. The provisions of subsection (b) of this Code section shall not apply to:
   1. The activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses;
   2. Legitimate medical, scientific, or educational activities; or
   3. Any person who creates or possesses a visual medium depicting only himself or herself engaged in sexually explicit conduct.
5. 1. As used in this subsection, the terms "proceeds" and "property" shall have the same meaning as set forth in Code Section 9-16-2.
   2. Any property which is, directly or indirectly, used or intended to be used in any manner to facilitate a violation of this Code section and any proceeds are declared to be contraband and no person shall have a property right in them.
   3. Any property subject to forfeiture pursuant to paragraph (2) of this subsection shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.
6. 1. Except as otherwise provided in paragraphs (2) and (3) of this subsection, any person who violates a provision of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five nor more than 20 years and by a fine of not more than $100,000.00; provided, however, that if the person so convicted is a member of the immediate family of the victim, no fine shall be imposed. Any person punished as provided in this paragraph shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.
   2. Any person who violates subsection (c) of this Code section shall be guilty of a misdemeanor.
   3. Any person who violates paragraph (1), (5), (7), or (8) of subsection (b) of this Code section shall be guilty of a misdemeanor if:
      1. The minor depicted was at least 14 years of age at the time the visual medium was created;
      2. The visual medium was created with the permission of the minor depicted; and
      3. The defendant was 18 years of age or younger at the time of the offense and:
         1. The defendant's violation of such paragraphs did not involve the distribution of such visual medium 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 of such paragraphs involved the distribution of such visual medium to another person but such distribution was not for the purpose of:
      4. Harassing, intimidating, or embarrassing the minor depicted; or
      5. For any commercial purpose.

(Ga. L. 1978, p. 2193, § 1; Ga. L. 1983, p. 1437, § 1; Ga. L. 1987, p. 1164, § 1; Ga. L. 1988, p. 11, §§ 1, 2; Ga. L. 1991, p. 886, § 3; Ga. L. 1995, p. 957, § 6; Ga. L. 1996, p. 6, § 16; Ga. L. 2003, p. 573, § 2; Ga. L. 2013, p. 663, § 1/HB 156; Ga. L. 2015, p. 693, § 2-15/HB 233; Ga. L. 2017, p. 489, § 4/HB 341.)

The 2017 amendment, effective July 1, 2017, added the last sentence of paragraph (f)(1).

- Selling, apprenticing persons under age 12 for indecent, obscene, or immoral exhibition, practice, or purpose, § 39-2-17.

Employment of minors as actors, or performers in motion pictures, theatrical productions, generally, § 39-2-18.

- Ga. L. 1991, p. 886, § 4, not codified by the General Assembly, provides: "(a) The repeal, or repeal and reenactment, of the provisions of Code Section 16-13-49 by this Act shall not abate any cause of action which arose at any previous time under the provisions of said Code section prior to the effective date of this Act. Furthermore, no action for forfeiture shall be abated as a result of the provisions of this Act, and any and every such action or cause of action shall continue, subject only to the applicable statute of limitations.

"(b) No property shall be subject to forfeiture pursuant to this Act where the act or omission which makes such property subject to forfeiture occurred prior to the effective date of this Act unless such property was subject to forfeiture under the laws of this state at the time such act or omission occurred."

Ga. L. 1995, p. 957, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Child Protection Act of 1995'."

Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015). For article, "Inconsistencies in Georgia's Sex-Crime Statutes Teach Teens that Sexting is Worse than Sex," see 67 Mercer L. Rev. 405 (2016). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For note on the 2003 amendment to this Code section, see 20 Ga. St. U.L. Rev. 84 (2003). For note, "Mandatory Child Abuse Reporting Laws in Georgia: Strengthening Protection for Georgia's Children," see 31 Ga. St. U.L. Rev. 643 (2015). For comment, "Mandatory Child Abuse Reporting Laws in Georgia: Strengthening Protection for Georgia's Children," see 31 Ga. St. U.L. Rev. 643 (2015).

ANALYSIS

• General Considerations
• Application
• Jury Instructions
• Sentencing

RESEARCH REFERENCES

ALR.

- Validity, construction, and application of statutes regulating sexual performance by child, 21 A.L.R.4th 239, 42 A.L.R.5th 291.

Admissibility of expert testimony as to criminal defendant's propensity toward sexual deviation, 42 A.L.R.4th 937.

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, 33 A.L.R.6th 373.

Construction and application of United States Sentencing Guideline § 2G2.1 et seq., pertaining to child pornography, 145 A.L.R. Fed. 481.