2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 6 - Sexual Offenses
§ 16-6-4. Child Molestation; Aggravated Child Molestation

Universal Citation: GA Code § 16-6-4 (2021)
  1. A person commits the offense of child molestation when such person:
    1. Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person; or
    2. By means of an electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.
    1. Except as provided in paragraph (2) of this subsection, a person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.2 and 17-10-7. Upon a defendant being incarcerated on a conviction for a first offense, the Department of Corrections shall provide counseling to such defendant. Except as provided in paragraph (2) of this subsection, upon a second or subsequent conviction of an offense of child molestation, the defendant shall be punished by imprisonment for not less than ten years nor more than 30 years or by imprisonment for life and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.2 and 17-10-7; provided, however, that prior to trial, a defendant shall be given notice, in writing, that the state intends to seek a punishment of life imprisonment.
    2. If the victim is at least 14 but less than 16 years of age and the person convicted of child molestation is 18 years of age or younger and is no more than four years 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.
  2. A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.
    1. Except as provided in paragraph (2) of this subsection, a person convicted of the offense of aggravated child molestation shall be punished 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, and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.
    2. A person convicted of the offense of aggravated child molestation when:
      1. The victim is at least 13 but less than 16 years of age;
      2. The person convicted of aggravated child molestation is 18 years of age or younger and is no more than four years older than the victim; and
      3. The basis of the charge of aggravated child molestation involves an act of sodomy

        shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.1.

  3. A person shall be subject to prosecution in this state pursuant to Code Section 17-2-1 for any conduct made unlawful by paragraph (2) of subsection (a) of this Code section which the person engages in while:
    1. Either within or outside of this state if, by such conduct, the person commits a violation of paragraph (2) of subsection (a) of this Code section which involves a child who resides in this state; or
    2. Within this state if, by such conduct, the person commits a violation of paragraph (2) of subsection (a) of this Code section which involves a child who resides within or outside this state.

(Ga. L. 1950, p. 387, § 1; Ga. L. 1953, Nov.-Dec. Sess., p. 408, § 1; Code 1933, § 26-2019, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1984, p. 685, § 1; Ga. L. 1984, p. 1495, § 1; Ga. L. 1985, p. 283, § 1; Ga. L. 1987, p. 617, § 1; Ga. L. 1992, p. 6, § 16; Ga. L. 1993, p. 715, § 1; Ga. L. 1994, p. 1959, § 6; Ga. L. 1995, p. 957, § 4; Ga. L. 1997, p. 1578, § 1; Ga. L. 2006, p. 379, § 11/HB 1059; Ga. L. 2009, p. 729, § 1/HB 123.)

Cross references.

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

Computer pornography and child exploitation prevention, § 16-12-100.2.

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

Testimony as to child's description of sexual contact or physical abuse, § 24-8-820.

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

Editor's notes.

- 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: "In the event any section, subsection, sentence, clause, or phrase of this Act shall be declared or adjudged invalid or unconstitutional, such adjudication shall in no manner affect the other sections, subsections, sentences, clauses, or phrases of this Act, which shall remain of full force and effect as if the section, subsection, sentence, clause, or phrase so declared or adjudged invalid or unconstitutional were not originally a part hereof. The General Assembly declares that it would have passed the remaining parts of this Act if it had known that such part or parts hereof would be declared or adjudged invalid or unconstitutional."

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. 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. 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: "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."

Law reviews.

- For article recommending more consistency in age requirements of law pertaining to the welfare of minors, see 6 Ga. St. B. J. 189 (1969). For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U. L. Rev. 95 (1997). For annual survey of criminal law, see 56 Mercer L. Rev. 153 (2004). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 11 (2006). For survey article on criminal law, see 60 Mercer L. Rev. 85 (2008). 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 note, "Pedophilia, Exhibitionism, and Voyeurism: Legal Problems in the Deviant Society," see 4 Ga. L. Rev. 149 (1969). For note, "Can't Do the Time, Don't Do the Crime?: Dixon v. State, Statutory Construction, and the Harsh Realities of Mandatory Minimum Sentencing in Georgia," see 22 Ga. St. U. L. Rev. 519 (2005). For note, "Calling on the Legislature: Dixon v. State and Georgia's Statutory Scheme to Protect Minors from Sexual Exploitation," see 56 Mercer L. Rev. 777 (2005). For comment, "Civil Contempt and Child Sexual Abuse Allegations: A Modern Solomon's Choice?," see 40 Emory L.J. 203 (1991).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Indictment
  • Application
  • Expert Testimony
  • Merging With Other Offenses
  • Jury Issues and Instructions
  • Sentence

RESEARCH REFERENCES

Am. Jur. 2d.

- 42 Am. Jur. 2d, Infants, § 15 et seq. 50 Am. Jur. 2d, Lewdness, Indecency and Obscenity, §§ 15, 16.

Liability of School Districts Under Common Law Tort Theories for the Sexual Molestation of a Student by a Teacher, 31 POF3d 261.

C.J.S.

- 43 C.J.S., Infants, §§ 193, 200 et seq.

ALR.

- Assault with intent to commit unnatural sex act upon minor as affected by latter's consent, 65 A.L.R.2d 748.

Applicability of criminal statutes relating to offenses against children of a specified age with respect to a child who has passed the anniversary date of such age, 73 A.L.R.2d 874.

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.

Sexual child abuser's civil liability to child's parent, 54 A.L.R.4th 93.

Admissibility of evidence that juvenile prosecuting witness in sex offense case had prior sexual experience for purposes of showing alternative source of child's ability to describe sex acts, 83 A.L.R.4th 685.

Statute protecting minors in a specified age range from rape or other sexual activity as applicable to defendant minor within protected age group, 18 A.L.R.5th 856.

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

Validity, construction, and application of state statutes prohibiting child luring as applied to cases involving luring of child by means of electronic communications, 33 A.L.R.6th 373.

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.

Necessity of Expert Testimony on Grooming Behavior Involving Sexual Conduct with Child, 53 A.L.R.7th 3.

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