2022 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 1 - Procedure for Sentencing and Imposition of Punishment
§ 17-10-6.2. Punishment for Sexual Offenders

1. As used in this Code section, the term “sexual offense” means:
   1. Aggravated assault with the intent to rape, in violation of Code Section 16-5-21;
   2. False imprisonment, in violation of Code Section 16-5-41, if the victim is not the child of the defendant and the victim is less than 14 years of age;
   3. Sodomy, in violation of Code Section 16-6-2, unless subject to the provisions of subsection (d) of Code Section 16-6-2;
   4. Statutory rape, in violation of Code Section 16-6-3, if the person convicted of the crime is 21 years of age or older;
   5. Child molestation, in violation of subsection (a) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (b) of Code Section 16-6-4;
   6. Enticing a child for indecent purposes, in violation of Code Section 16-6-5, unless subject to the provisions of subsection (c) of Code Section 16-6-5;
   7. Improper sexual contact by employee or agent and improper sexual contact by person in a position of trust, as provided in Code Section 16-6-5.1;
   8. Incest, in violation of Code Section 16-6-22;
   9. A second or subsequent conviction for sexual battery, in violation of Code Section 16-6-22.1; or
   10. Sexual exploitation of children, in violation of Code Section 16-12-100, unless subject to the provisions of paragraph (2) or (3) of subsection (f) of Code Section 16-12-100.
2. Except as provided in subsection (c) of this Code section, and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to such sexual offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the court. Any such sentence shall include, in addition to the mandatory term of imprisonment, an additional probated sentence of at least one year; provided, however, that when a court imposes consecutive sentences for sexual offenses, the requirement that the court impose a probated sentence of at least one year shall only apply to the final consecutive sentence imposed. No person convicted of a sexual offense shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42 or any other provision of Georgia law relating to the sentencing of first offenders.
3. 1. In the court’s discretion, the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum or provided that:
      1. The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;
      2. The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;
      3. The court has not found evidence of a relevant similar transaction;
      4. The victim did not suffer any intentional physical harm during the commission of the offense;
      5. The offense did not involve the transportation of the victim; and
      6. The victim was not physically restrained during the commission of the offense.
   2. If the court deviates in sentencing pursuant to this subsection, the judge shall issue a written order setting forth the judge’s reasons. Any such order shall be appealable by the defendant pursuant to Code Section 5-6-34, or by the State of Georgia pursuant to Code Section 5-7-1, unless the sentence imposed was pursuant to an agreement by the prosecuting attorney and the defendant.
4. If the court imposes a probated sentence, the defendant shall submit to review by the Sexual Offender Registration Review Board for purposes of risk assessment classification within ten days of being sentenced and shall otherwise comply with Article 2 of Chapter 1 of Title 42.

History. Code 1981, § 17-10-6.2 , enacted by Ga. L. 2006, p. 379, § 21/HB 1059; Ga. L. 2013, p. 222, § 9/HB 349; Ga. L. 2017, p. 489, § 5/HB 341; Ga. L. 2019, p. 912, § 3/SB 9; Ga. L. 2021, p. 516, § 2/SB 117.

The 2019 amendment, effective July 1, 2019, rewrote paragraph (a)(7), which formerly read: “Sexual assault against persons in custody, in violation of Code Section 16-6-5.1;”.

The 2021 amendment, effective July 1, 2021, inserted “and improper sexual contact by person in a position of trust” in paragraph (a)(7).

Editor’s notes.

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.”

Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides that: “This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense.”

Law reviews.

For article, “Appeal and Error: Appeal or Certiorari by State in Criminal Cases,” see 30 Ga. St. U. L. Rev. 17 (2013).

For annual survey on criminal law, see 66 Mercer L. Rev. 37 (2014).

For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017).