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Improper Sexual Contact

One of the more lengthy and complex of the sex crimes statutes is improper sexual contact.  It replaced a prior statute dealing with sexual contact involving persons in protected status.  It covers and expands upon that  subject.

Types of Contact or Conduct

There are two classes of acts which can implicate OCGA 16-6-5.1:  sexually explicit conduct and sexual contact.

Sexually explicit conduct

Sexually explicit conduct means actual or simulated:

(A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(B) Bestiality;
(C) Masturbation;
(D) Lewd exhibition of the genitals or pubic area of any person;
(E) Flagellation or torture by or upon a person who is nude;
(F) Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude;
(G) 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;
(H) Defecation or urination for the purpose of sexual stimulation of the viewer; or
(I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.

Sexual Contact

Sexual contact means any contact involving the intimate parts of either person for the purpose of sexual gratification of either person.  Intimate parts means the genital area, groin, inner thighs, buttocks or breasts of a person.

Types of Relationships

The criminalized conduct occurs in the context of certain types of relationships. These are relationships that involve:

  • Child-placing agencies
  • Child welfare and youth services
  • Foster care home
  • Foster parent-child relationship
  • Psychotherapy
  • Sensitive care facilities
  • Schools (providing elementary or secondary education)
  • Probation or parole supervision
  • Law Enforcement Agencies
  • Pretrial diversion supervision
  • Accountability court programs
  • Hospital patients
  • Person admitted for care to a sensitive care facility
  • Psychotherapy
  • Other situations where the person is in a position of trust for a minor

It is important to note that these can involve a relationship between two adults, two minors, or an adult and a minor.  It can involve relationships where both persons are otherwise able to give consent.  It basically always involve situations where one person has some level or appearance of power over the other person.

The situations which can implicate OCGA 16-6-5.1 are very broad.  

An employee means an individual who works for salary, wages, or other remuneration for an employee or sole proprietor.  An agent means a individual authorized to act on behalf of another, with or without compensation. A sole proprietor in the context of this statute means only an owner or operator of a program or facility rendering serrvices or housing to another as a condition of such other person's probation or parole.

Degrees of Criminal Conduct

The statute breaks down into two degrees.  First degree is the more serious.  Second degree can still be very serious.

First Degree Offenses

As one might imagine from the list of situations described above, this is fairly complicated.  Most arrest situations are going to need to be evaluated very closely to assess whether a criminal offense has occurred.  That said, the statute lays out three classes of first degree offenses.

First degree offenses are generally punishable by imprisonment for not less than one nor more than 25 years and by a fine not to exceed $100,000, with the following exceptions:

If the victim is under the age of 16 years, then the sentencing range is not less than 10 nor more than 30 years and a fine not to exceed $100,000, and is subject to the sentencing and punishment provisions of OCGA 17-10-6.2.

If the victim is at least 14 years of age but less than 21 years of age and alleged perpetrator is 21 years of age or younger and is no more than 48 months older than the victim, the offense is a misdemeanor and is not subject to OCGA 17-10-6.2.

If the victim is under the age of 16 and the act physically injures the victim, 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 and is subject to OCGA 17-10-6.2.

If the victim is under the age of 16 and the offense 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 and is subject to OCGA 17-10-6.2.

Improper Sexual Contact by Employee or Agent in the First Degree

This offense involves a defendant who is an employee or agent who knowingly engages in sexually explicit conduct with another person that the 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.

Improper Sexual Contact by a Foster Parent in the First Degree

The offense occurs when a foster parent knowingly engages in sexually explicit conduct with his or her current foster child.

Improper Sexual Contact by a Person in a Position of Trust in the First Degree

This offense involves an individual who has been entrusted a minor by the minor's parent or guardian or other person standing in loco parentis to the minor for the purpose of the individual providing education or supervision of the minor, but only while the agreement for entrustment is active, that is not satisfied or terminated, and engages in sexually explicit conduct with that minor.

Second Degree Offenses

Second degree offenses basically mirror the first degree offenses but involve sexual contact not rising to the level of sexually explicit conduct.

The general rules is that these offenses with be misdemeanors of a high and aggravated nature and shall not be subject to OCGA 17-10-6.2.  This generally means that the maximum punishment is 12 months in prison and a $1,000 fine.  There are some exceptions:

If the victim is under the age of 16 years, the offense is a felony punishable by imprisonment for not less than 5 nor more than 25 years and a fine not to exceed $25,000, and is subject to OCGA 17-10-6.2.

A second or subsequent conviction for a second degree offense is punishable as a felony  with imprisonment for not less than one year nor more than five years and shall be subject to OCGA 17-10-6.2.

However, if either of the above two classes of punishment involve a a victim who is at least 14 years of age but less than 21 years of age and alleged perpetrator is 21 years of age or younger and is no more than 48 months older than the victim, the offense is a misdemeanor and is not subject to OCGA 17-10-6.2.

Improper Sexual Contact by Employee or Agent in the Second Degree

This offense involves a defendant who is an employee or agent who knowingly engages in sexual contact with another person that the 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.

Improper Sexual Contact by a Foster Parent in the Second Degree

The offense occurs when a foster parent knowingly engages in sexual contact with his or her current foster child.

Improper Sexual Contact by a Person in a Position of Trust in the Second Degree

This offense involves an individual who has been entrusted a minor by the minor's parent or guardian or other person standing in loco parentis to the minor for the purpose of the individual providing education or supervision of the minor, but only while the agreement for entrustment is active, that is not satisfied or terminated and has sexual contact with that minor.

Consent is Not a Defense

OCGA 16-6-5.1 provides that consent of the victim is not a defense to a prosecution under this Code Section.

Excluded Relationships

There are two relationships that are excluded under the statute.

An employee or agent who is a student at the same school as the victim is not subject to the statute.

The statute also does not apply if the two persons involved are lawfully married to one another.

Impact of OCGA 17-10-6.2

The sentences set out above generally can be probated, withheld or suspended in the discretion of the sentencing judge.  When an offense is subject to the sentencing and punishment provisions of OCGA 17-10-6.2, the offense will have a mandatory minimum period of imprisonment based on the lower number of the sentencing range.  There are exceptions to the mandatory minimum if the prosecution and defense agree to a lesser punishment and:

(A) 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;
(B) 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;
(C) The court has not found evidence of a relevant similar transaction;
(D) The victim did not suffer any intentional physical harm during the commission of the offense;
(E) The offense did not involve the transportation of the victim; and
(F) The victim was not physically restrained during the commission of the offense.

The sentencing judge will be required to make  findings in a written order with the reasons for the deviation from the mandatory minimum period of imprisonment.

If in that event, the defendant receives a probated sentence, they must submit to a review by the Sexual Offender Registration Review Board within 10 days of being sentenced for the purpose of being classified and shall comply with sexual offender registration requirements.

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