2022 Georgia Code
Title 16 - Crimes and Offenses
Chapter 6 - Sexual Offenses
§ 16-6-5.1. 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.
   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 or sole proprietor.
   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.
   11. “Sole proprietor” means an individual who is an owner or operator of a program or facility rendering services or housing to another as a condition of such other person’s probation or parole.

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

   (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.

   (5.1) “Person in a position of trust” means an individual with whom a parent, guardian, or other person standing in loco parentis of a minor has entered into an agreement entrusting such individual with the responsibility of education and supervision of such minor; provided, however, that no such status shall exist when the terms of the agreement have been satisfied or terminated and the minor is no longer under the supervision of such individual.

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, a program or within a facility as a condition of probation or 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.

   (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.

   (b.2) A person commits the offense of improper sexual contact by a person in a position of trust in the first degree when a person in a position of trust engages in sexually explicit conduct with a minor for whom he or she has entered into an agreement entrusting him or her with the responsibility of education and supervision of such minor.

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, a program or within a facility as a condition of probation or 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.

   (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.

   (c.2) A person commits the offense of improper sexual contact by a person in a position of trust in the second degree when a person in a position of trust engages in sexual contact, excluding sexually explicit conduct, with a minor for whom he or she has entered into an agreement entrusting him or her with the responsibility of education and supervision of such minor.

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, improper sexual contact by a person in a position of trust 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 and by a fine not to exceed $100,000.00; 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, improper sexual contact by a person in a position of trust in the first degree, 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 ten nor more than 30 years and a fine not to exceed $100,000.00 and shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2; and
   2. 1. 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.
      2. If at the time of the offense the victim of the offense is under the age of 16 and the act physically injures the victim or involves an act of sodomy, the offense shall be punished by imprisonment for not less than 25 nor more than 50 years and a fine not to exceed $100,000.00 and shall, in addition, 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, improper sexual contact by a person in a position of trust 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, improper sexual contact by a person in a position of trust 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 and by a fine not to exceed $25,000.00 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, improper sexual contact by a person in a position of trust 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.

History. 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; Ga. L. 2021, p. 384, § 6/HB 363; Ga. L. 2021, p. 516, § 1/SB 117; Ga. L. 2022, p. 352, § 16/HB 1428.

The 2019 amendment, effective July 1, 2019, rewrote this Code section.

The 2020 amendment, effective January 1, 2021, added paragraphs (a)(1.1), (a)(4.1), and (a)(4.2); added subsections (b.1) and (c.1); inserted “or improper sexual contact by a foster parent in the first degree” in subsection (f); inserted “or improper sexual contact by a foster parent” in the middle of paragraph (f)(1); and inserted “or improper sexual contact by a foster parent in the second degree” in subsection (g) and paragraphs (g)(1) and (g)(3).

The 2021 amendments.

The first 2021 amendment, effective July 1, 2021, added “or sole proprietor” at the end of paragraph (a)(4); added paragraph (a)(11); inserted “a program or within a facility as a condition of probation or parole, accountability court,” in paragraphs (b)(2) and (c)(2). The second 2021 amendment, effective July 1, 2021, added paragraph (a)(5.1) and subsections (b.2) and (c.2); in subsection (f), inserted “, improper sexual contact by a person in a position of trust in the first degree,” and substituted “25 years and by a fine not to exceed $100,000.00; provided” for “25 years or by a fine not to exceed $100,000.00, or both; provided”; in paragraph (f)(1), inserted “, improper sexual contact by a person in a position of trust in the first degree,” and substituted “10 nor more than 30 years and a fine not to exceed $100,000.00 and shall” for “25 nor more than 50 years or a fine not to exceed $100,000.00, or both, and shall”; designated the existing provisions of paragraph (f)(2) as subparagraph (f)(2)(A); added subparagraph (f)(2)(B); inserted “, improper sexual contact by a person in a position of trust in the second degree,” in subsection (g) and in paragraphs (g)(1) and (g)(3); and substituted “25 years and by a fine not to exceed $25,000.00 and shall” for “25 years or by a fine not to exceed $25,000.00, or both, and shall” near the end of paragraph (g)(1).

The 2022 amendment, effective May 2, 2022, part of an Act to revise, modernize, and correct the Code, in paragraph (f)(1), substituted “by employee or agent, improper sexual contact by a person in a position of trust in the first degree” for “by employee, improper sexual contact by a person in a position of trust in the first degree, or agent” and “ten” for “10”.

Cross references.

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 .

Code Commission notes.

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).

Editor’s notes.

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.

Law reviews.

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).