2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 6 - Sexual Offenses
§ 16-6-1. Rape

1. A person commits the offense of rape when he has carnal knowledge of:
   1. A female forcibly and against her will; or
   2. A female who is less than ten years of age.

      Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ. The fact that the person allegedly raped is the wife of the defendant shall not be a defense to a charge of rape.

2. A person convicted of the offense of rape shall be punished by death, by imprisonment for life without parole, by imprisonment for life, or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life. Any person convicted under this Code section shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.
3. When evidence relating to an allegation of rape is collected in the course of a medical examination of the person who is the victim of the alleged crime, the Georgia Crime Victims Emergency Fund, as provided for in Chapter 15 of Title 17, shall be responsible for the cost of the medical examination to the extent that expense is incurred for the limited purpose of collecting evidence.

(Laws 1833, Cobb's 1851 Digest, p. 787; Code 1863, §§ 4248, 4249; Ga. L. 1866, p. 151, § 1; Code 1868, §§ 4283, 4284; Code 1873, §§ 4349, 4350; Code 1882, §§ 4349, 4350; Penal Code 1895, §§ 93, 94; Penal Code 1910, §§ 93, 94; Code 1933, §§ 26-1301, 26-1302; Ga. L. 1960, p. 266, § 1; Code 1933, § 26-2001, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1978, p. 3, § 1; Ga. L. 1994, p. 1959, § 5; Ga. L. 1996, p. 1115, § 1; Ga. L. 1997, p. 6, § 2; Ga. L. 1999, p. 666, § 1; Ga. L. 2006, p. 379, § 8/HB 1059; Ga. L. 2011, p. 214, § 1/HB 503.)

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

Jurisdiction of the Court of Appeals over certain crimes, § 15-3-3.

Time limitation on prosecutions for crimes punishable by death or life imprisonment, § 17-3-1.

Televising testimony of child who is victim of offense under this Code section, § 17-8-55.

Development of rape prevention and personal safety education program, § 20-2-314.

Admissibility of evidence relating to the past sexual behavior of the complaining witness in a prosecution for rape, § 24-4-412.

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

Damages may be recovered, § 51-1-14.

- Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), held that imposition of the death penalty for rape where the victim is not killed is in violation of the Eighth Amendment. Eberheart v. Georgia, 433 U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104 (1977), citing Coker, held the death penalty for kidnapping where the victim is not killed to be in violation of the Eighth Amendment. The Supreme Court of Georgia, in Collins v. State, 239 Ga. 400, 236 S.E.2d 759 (1977) held that the rationale of Coker must be applied also to kidnapping.

Ga. L. 1994, p. 1959, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Sentence Reform Act of 1994'."

Ga. L. 1994, p. 1959, § 2, not codified by the General Assembly, provides: "The General Assembly declares and finds:

"(1) That persons who are convicted of certain serious violent felonies shall serve minimum terms of imprisonment which shall not be suspended, probated, stayed, deferred, or otherwise withheld by the sentencing judge; and

"(2) That sentences ordered by courts in cases of certain serious violent felonies shall be served in their entirety and shall not be reduced by parole or by any earned time, early release, work release, or other such sentence-reducing measures administered by the Department of Corrections."

Ga. L. 1994, p. 1959, § 16, not codified by the General Assembly, provides: "The provisions of this Act shall apply only to those offenses committed on or after the effective date of this Act; provided, however, that any conviction occurring prior to, on, or after the effective date of this Act shall be deemed a 'conviction' for the purposes of this Act and shall be counted in determining the appropriate sentence to be imposed for any offense committed on or after the effective date of this Act."

Ga. L. 1994, p. 1959, § 17, not codified by the General Assembly, provides for severability.

Ga. L. 1994, p. 1959, § 18, not codified by the General Assembly, provides: "This Act shall become effective on January 1, 1995, upon ratification by the voters of this state at the 1994 November general election of that proposed amendment to Article IV, Section II, Paragraph II of the Constitution authorizing the General Assembly to provide for mandatory minimum sentences and sentences of life without possibility of parole in certain cases and providing restrictions on the authority of the State Board of Pardons and Paroles to grant paroles.... " That amendment was ratified by the voters on November 8, 1994, so the amendment to this Code section by this Act became effective on January 1, 1995.

Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: "The General Assembly declares and finds: (1) That the 'Sentence Reform Act of 1994,' approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond , 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the 'Sentence Reform Act of 1994,' that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond , it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the 'Sentence Reform Act of 1994' shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment."

Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "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 that: "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."

- For article, "The Demise of the Corroboration Requirement - Its History in Georgia Rape Law," see 26 Emory L.J. 805 (1977). For article, "The Georgia Roundtable Discussion Model: Another Way to Approach Reforming Rape Laws," see 20 Ga. St. U. L. Rev. 565 (2004). For article on the 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 11 (2006). For article, "Rape On and Off Campus," see 65 Emory L. J. 1 (2015). For article, "The Costs of Changing Our Minds," see 69 Emory L.J. 75 (2019). For note proposing Blood Grouping Test Act to expand admissible guidance in paternity proceedings, see 1 Mercer L. Rev. 266 (1950). For note on the 1999 amendment to this Code section, see 16 Ga. St. U. L. Rev. 99 (1999). For comment on Lynn v. State, 231 Ga. 559, 203 S.E.2d 221 (1974), appearing below, see 8 Ga. L. Rev. 973 (1974).

ANALYSIS

• General Consideration
• Merger and Other Offenses
• Jury Instructions
• Sufficiency of Evidence
• Sentence
• Death Penalty

The 1996 amendment repealed the ten year mandatory minimum sentence for rape and aggravated sodomy formerly applicable to first offenders. 1996 Op. Att'y Gen. No. U96-20.

RESEARCH REFERENCES

Am. Jur. 2d.

- 65 Am. Jur. 2d, Rape, § 1 et seq.

Handling the Defense in a Rape Prosecution, 18 Am. Jur. Trials 341.

- 75 C.J.S., Rape, § 1 et seq.

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

Civil liability for carnal knowledge with actual consent of girl under age of consent, 79 A.L.R. 1229.

Assault with intent to ravish or rape consenting female under age of consent, 81 A.L.R. 599.

Rape as bailable offense, 118 A.L.R. 1115.

Former acquittal or conviction under indictment or other information for rape or other sexual offense which does not allege that female was under age of consent as bar to subsequent prosecution under indictment or information which alleges that she was under age of consent; and vice versa, 119 A.L.R. 1205.

Admissibility, in prosecution for sexual offense, of evidence of other similar offenses, 167 A.L.R. 565; 77 A.L.R.2d 841.

Admissibility and propriety, in rape prosecution, of evidence that accused is married, had children, and the like, 62 A.L.R.2d 1067.

Admissibility, in nonstatutory rape prosecution, of evidence of pregnancy of prosecutrix, 62 A.L.R.2d 1083.

Incest as included within charge of rape, 76 A.L.R.2d 484.

Rape by fraud or impersonation, 91 A.L.R.2d 591.

Impotency as defense to charge of rape, attempt to rape, or assault with intent to commit rape, 23 A.L.R.3d 1351.

Rape or similar offense based on intercourse with woman who is allegedly mentally deficient, 31 A.L.R.3d 1227.

Applicability, in proceedings under statutes relating to sexual psychopaths, of constitutional provisions for the protection of a person accused of crime, 34 A.L.R.3d 652.

Racial discrimination in punishment for crime, 40 A.L.R.3d 227.

What constitutes penetration in prosecution for rape or statutory rape, 76 A.L.R.3d 163.

Multiple instances of forcible intercourse involving same defendant and same victim as constituting multiple crimes of rape, 81 A.L.R.3d 1228.

What constitutes offense of "sexual battery,", 87 A.L.R.3d 1250.

Modern status of admissibility, in forcible rape prosecution, of complainant's prior sexual acts, 94 A.L.R.3d 257.

Constitutionality of rape laws limited to protection of females only, 99 A.L.R.3d 129.

Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.

Venue in rape cases where crime is committed partly in one place and partly in another, 100 A.L.R.3d 1174.

Admissibility, in rape case, of evidence that accused raped or attempted to rape person other than prosecutrix, 2 A.L.R.4th 330.

Validity and construction of statute defining crime of rape to include activity traditionally punishable as sodomy or the like, 3 A.L.R.4th 1009.

Criminal responsibility of husband for rape, or assault to commit rape, on wife, 24 A.L.R.4th 105.

Admissibility, at criminal prosecution, of expert testimony on rape trauma syndrome, 42 A.L.R.4th 879.

Conviction of rape or related sexual offenses on basis of intercourse accomplished under the pretext of, or in the course of, medical treatment, 65 A.L.R.4th 1064.

Prosecution of female as principal for rape, 67 A.L.R.4th 1127.

Fact that murder-rape victim was dead at time of penetration as affecting conviction for rape, 76 A.L.R.4th 1147.

Propriety of publishing identity of sexual assault victim, 40 A.L.R.5th 787.

Validity, construction, and application of state statutes authorizing community notification of release of convicted sex offender, 78 A.L.R.5th 489.

Admissibility of expert testimony as to proper techniques for interviewing children or evaluating techniques employed in particular case, 87 A.L.R.5th 693.

Defense of mistake of fact as to victim's consent in rape prosecution, 102 A.L.R.5th 447.

Offense of rape after withdrawal of consent, 33 A.L.R.6th 353.

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.

Admissibility of suicide note in criminal proceedings, 13 A.L.R.7th 6.

Construction and application of "crime of violence" provision of U.S.S.G. § 2L1.2 pertaining to unlawfully entering or remaining in the United States after commission of felony offense, 68 A.L.R. Fed. 2d 55.

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.