(a)
A person commits the offense of distributing obscene material
when he sells, lends, rents, leases, gives, advertises,
publishes, exhibits, or otherwise disseminates to any person
any obscene material of any description, knowing the obscene
nature thereof, or offers to do so, or possesses such material
with the intent to do so, provided that the word "knowing,"
as used in this Code section, shall be deemed to be either
actual or constructive knowledge of the obscene contents
of the subject matter; and a person has constructive knowledge
of the obscene contents if he has knowledge of facts which
would put a reasonable and prudent person on notice as to
the suspect nature of the material; provided, however, that
the character and reputation of the individual charged with
an offense under this law, and, if a commercial dissemination
of obscene material is involved, the character and reputation
of the business establishment involved may be placed in
evidence by the defendant on the question of intent to violate
this law. Undeveloped photographs, molds, printing plates,
and the like shall be deemed obscene notwithstanding that
processing or other acts may be required to make the obscenity
patent or to disseminate it.
(b) Material is obscene if:
(1) To the average person, applying contemporary community
standards, taken as a whole, it predominantly appeals
to the prurient interest, that is, a shameful or morbid
interest in nudity, sex, or excretion;
(2) The material taken as a whole lacks serious literary,
artistic, political, or scientific value; and
(3) The material depicts or describes, in a patently offensive
way, sexual conduct specifically defined in subparagraphs
(A) through (E) of this paragraph:
(A) Acts of sexual intercourse, heterosexual or homosexual,
normal or perverted, actual or simulated;
(B) Acts of masturbation;
(C) Acts involving excretory functions or lewd exhibition
of the genitals;
(D) Acts of bestiality or the fondling of sex organs
of animals; or
(E) Sexual acts of flagellation, torture, or other violence
indicating a sadomasochistic sexual relationship.
(c)
Any device designed or marketed as useful primarily for
the stimulation of human genital organs is obscene material
under this Code section.
(d) Material not otherwise obscene may be obscene under
this Code section if the distribution thereof, the offer
to do so, or the possession with the intent to do so is
a commercial exploitation of erotica solely for the sake
of their prurient appeal.
(e) It is an affirmative defense under this Code section
that dissemination of the material was restricted to:
(1) A person associated with an institution of higher
learning, either as a member of the faculty or a matriculated
student, teaching or pursuing a course of study related
to such material; or
(2) A person whose receipt of such material was authorized
in writing by a licensed medical practitioner or psychiatrist.
(f)
A person who commits the offense of distributing obscene
material shall be guilty of a misdemeanor of a high and
aggravated nature.
(1) "Minor" means any person under the age of
18 years.
(2) "Performance" means any play, dance, or
exhibit to be shown to or viewed by an audience.
(3) "Producing" means producing, directing,
manufacturing, issuing, or publishing.
(4) "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.
(5) "Visual medium" means any film, photograph,
negative, slide, magazine, or other visual medium.
(b)
(1)
It is unlawful for any person knowingly to employ, use,
persuade, induce, entice, or coerce any minor to engage
in or assist any other person to engage in any sexually
explicit conduct for the purpose of producing any visual
medium depicting such conduct.
(2) It is unlawful for any parent, legal guardian, or
person having custody or control of a minor knowingly
to permit the minor to engage in or to assist any other
person to engage in sexually explicit conduct for the
purpose of producing any visual medium depicting such
conduct.
(3) It is unlawful for any person knowingly to employ,
use, persuade, induce, entice, or coerce any minor to
engage in or assist any other person to engage in any
sexually explicit conduct for the purpose of any performance.
(4) It is unlawful for any parent, legal guardian, or
person having custody or control of a minor knowingly
to permit the minor to engage in or to assist any other
person to engage in sexually explicit conduct for the
purpose of any performance.
(5) It is unlawful for any person knowingly to create,
reproduce, publish, promote, sell, distribute, give, exhibit,
or possess with intent to sell or distribute any visual
medium which depicts a minor or a portion of a minor's
body engaged in any sexually explicit conduct.
(6) It is unlawful for any person knowingly to advertise,
sell, purchase, barter, or exchange any medium which provides
information as to where any visual medium which depicts
a minor or a portion of a minor's body engaged in any
sexually explicit conduct can be found or purchased.
(7) It is unlawful for any person knowingly to bring or
cause to be brought into this state any material which
depicts a minor or a portion of a minor's body engaged
in any sexually explicit conduct.
(8) It is unlawful for any person knowingly to possess
or control any material which depicts a minor or a portion
of a minor's body engaged in any sexually explicit conduct.
(c)
A person who, in the course of processing or producing visual
or printed matter either privately or commercially, has
reasonable cause to believe that the visual or printed matter
submitted for processing or producing depicts a minor engaged
in sexually explicit conduct shall immediately report such
incident, or cause a report to be made, to the Georgia Bureau
of Investigation or the law enforcement agency for the county
in which such matter is submitted. Any person participating
in the making of a report or causing a report to be made
pursuant to this subsection or participating in any judicial
proceeding or any other proceeding resulting therefrom shall
in so doing be immune from any civil or criminal liability
that might otherwise be incurred or imposed, providing such
participation pursuant to this subsection is made in good
faith.
(d) The provisions of subsection (b) of this Code section
shall not apply to the activities of law enforcement and
prosecution agencies in the investigation and prosecution
of criminal offenses or to legitimate medical, scientific,
or educational activities.
(e)
(1)
A person who is convicted of an offense under this Code
section shall forfeit to the State of Georgia such interest
as the person may have in:
(A) Any property constituting or directly derived from
gross profits or other proceeds obtained from such offense;
and
(B) Any property used, or intended to be used, to commit
such offense.
(2) In any action under this Code section, the court may
enter such restraining orders or take other appropriate
action, including acceptance of performance bonds, in
connection with any interest that is subject to forfeiture.
(3) The court shall order forfeiture of property referred
to in paragraph (1) of this subsection if the trier of
fact determines, beyond a reasonable doubt, that such
property is subject to forfeiture.
(4) The provisions of subsection (u) of Code Section 16-13-49
shall apply for the disposition of any property forfeited
under this subsection. In any disposition of property
under this subsection, a convicted person shall not be
permitted to acquire property forfeited by such person.
(f)
(1)
The following property shall be subject to forfeiture
to the State of Georgia:
(A) Any material or equipment used, or intended for
use, in producing, reproducing, transporting, shipping,
or receiving any visual medium in violation of this
Code section;
(B) Any visual medium produced, transported, shipped,
or received in violation of this Code section, or any
material containing such depiction; provided, however,
that any such property so forfeited shall be destroyed
by the appropriate law enforcement agency after it is
no longer needed in any court proceedings; or
(C) Any property constituting or directly derived from
gross profits or other proceeds obtained from a violation
of this Code section;
except
that no property of any owner shall be forfeited under
this paragraph, to the extent of the interest of such
owner, by reason of an act or omission established by
such owner to have been committed or omitted without knowledge
or consent of such owner.
(2) The procedure for forfeiture and disposition of forfeited
property under this subsection shall be as provided for
forfeitures under Code Section 16- 13-49.
(g)
(1) Except as otherwise provided in paragraph (2) of this
subsection, any person who violates a provision of this
Code section shall be guilty of a felony and, upon conviction
thereof, shall be punished by imprisonment for not less
than five nor more than 20 years and by a fine of not
more than $100,000.00. In the event, however, that the
person so convicted is a member of the immediate family
of the victim, no fine shall be imposed.
(2) Any person who violates subsection (c) of this Code
section shall be guilty of a misdemeanor.
§
16-12-100.1. Electronically furnishing obscene material
to minors
(a)
As used in this Code section, the term:
(1) "Bulletin board system" means a computer
data and file service that is accessed by telephone line
to store and transmit information.
(2) "CD-ROM" means a compact disc with read
only memory which has the capacity to store audio, video,
and written materials and is used by computers to reveal
the above-said material.
(3) "Electronically furnishes" means:
(A) To make available by electronic storage device,
including floppy disks and other magnetic storage devices,
or by CD-ROM; or
(B) To make available by allowing access to information
stored in a computer, including making material available
by operating a computer bulletin board.
(4) "Harmful to minors" means that quality of
description or representation, in whatever form, of nudity,
sexual conduct, sexual excitement, or sadomasochistic
abuse, when it:
(A) Taken as a whole, predominantly appeals to the prurient,
shameful, or morbid interest of minors;
(B) Is patently offensive to prevailing standards in
the adult community as a whole with respect to what
is suitable material for minors; and
(C) Is, when taken as a whole, lacking in serious literary,
artistic, political, or scientific value for minors.
(5) "Minor" means an unmarried person younger
than 18 years of age.
(6) "Sadomasochistic abuse" means flagellation
or torture by or upon a person who is nude or clad in
undergarments or in revealing or bizarre costume or the
condition of being fettered, bound, or otherwise physically
restrained on the part of one so clothed.
(7) "Sexual conduct" means human masturbation,
sexual intercourse, or any touching of the genitals, pubic
areas, or buttocks of the human male or female or the
breasts of the female, whether alone or between members
of the same or opposite sex or between humans and animals
in an act of apparent sexual stimulation or gratification.
(8) "Sexual excitement" means the condition
of human male or female genitals or the breasts of the
female when in a state of sexual stimulation.
(b)
A person commits the crime of electronically furnishing
obscene materials to minors if:
(1) Knowing or having good reason to know the character
of the material furnished, the person electronically furnishes
to an individual whom the person knows or should have
known is a minor:
(A) Any picture, photograph, drawing, or similar visual
representation or image of a person or portion of a
human body which depicts sexually explicit nudity, sexual
conduct, or sadomasochistic abuse and which is harmful
to minors; or
(B) Any written or aural matter that contains material
of the nature described in subparagraph (A) of this
paragraph or contains explicit verbal descriptions or
narrative accounts of sexual conduct, sexual excitement,
or sadomasochistic abuse;
(2) The offensive portions of the material electronically
furnished to the minor are not merely an incidental part
of an otherwise nonoffending whole;
(3) The material furnished to the minor, taken as a whole,
lacks serious literary, artistic, political, or scientific
value; and
(4) The material furnished to the minor, taken as a whole,
is harmful to minors in that it appeals to and incites
prurient interest.
(c) Any person who violates this Code section shall be guilty
of a misdemeanor of a high and aggravated nature.
§
16-12-100.2. Computer Pornography and Child Exploitation
Prevention Act of 1999
(a)
This Code section shall be known and may be cited as the
"Computer Pornography and Child Exploitation Prevention
Act of 1999."
(b) As used in this Code section, the term:
(1) "Child" means any person under the age of
16 years.
(2) "Identifiable child" means a person:
(A) Who was a child at the time the visual depiction
was created, adapted, or modified or whose image as
a child was used in creating, adapting, or modifying
the visual depiction; and
(B) Who is recognizable as an actual person by the person's
face, likeness, or other distinguishing characteristic,
such as a unique birthmark or other recognizable feature
or by electronic or scientific means as may be available.
The term shall not be construed to require proof of the
actual identity of the child.
(3) "Sadomasochistic abuse" has the same meaning
as provided in Code Section 16-12-100.1.
(4) "Sexual conduct" has the same meaning as
provided in Code Section 16-12- 100.1.
(5) "Sexual excitement" has the same meaning
as provided in Code Section 16- 12-100.1.
(6) "Sexually explicit nudity" has the same
meaning as provided in Code Section 16-12-102.
(7) "Visual depiction" means any image and includes
undeveloped film and video tape and data stored on computer
disk or by electronic means which is capable of conversion
into a visual image or which has been created, adapted,
or modified to show an identifiable child engaged in sexually
explicit conduct.
(c)
(1)
A person commits the offense of computer pornography if
such person
intentionally or willfully:
(A) Compiles, enters into, or transmits by means of
computer;
(B) Makes, prints, publishes, or reproduces by other
computerized means;
(C) Causes or allows to be entered into or transmitted
by means of computer; or
(D) Buys, sells, receives, exchanges, or disseminates
any notice, statement, or advertisement, or any child's
name, telephone number, place of residence, physical
characteristics, or other descriptive or identifying
information for the purpose of offering or soliciting
sexual conduct of or with an identifiable child or the
visual depiction of such conduct.
(2) Any person convicted of violating paragraph (1) of
this subsection shall be punished by a fine of not more
than $10,000.00 and by imprisonment for not less than
one nor more than 20 years.
(d)
(1)
It shall be unlawful for any person intentionally or willfully
to utilize a
computer on-line service or Internet service, including
but not limited to a local bulletin board service, Internet
chat room, e-mail, or on- line messaging service to seduce,
solicit, lure, or entice, or attempt to seduce, solicit,
lure, or entice a child or another person believed by
such person to be a child to commit any illegal act described
in Code Section 16- 6-2, relating to the offense of sodomy
or aggravated sodomy; Code Section 16-6-4, relating to
the offense of child molestation or aggravated child molestation;
Code Section 16-6-5, relating to the offense of enticing
a child for indecent purposes; or Code Section 16-6-8,
relating to the offense of public indecency or to engage
in any conduct that by its nature is an unlawful sexual
offense against a child.
(2) Any person who violates paragraph (1) of this subsection
shall be guilty of a felony and, upon conviction thereof,
shall be punished by imprisonment for not less than one
nor more than 20 years and by a fine of not more than
$25,000.00; provided, however, that, if at the time of
the offense the victim was 14 or 15 years of age and the
defendant was no more than three years older than the
victim, then the defendant shall be guilty of a misdemeanor
of a high and aggravated nature.
(e)
(1)
A person commits the offense of obscene Internet contact
with a child if he or
she has contact with someone he or she knows to be a child
or with someone he or she believes to be a child via a
computer on-line service or Internet service, including
but not limited to a local bulletin board service, Internet
chat room, e-mail, or on-line messaging service, and the
contact involves any matter containing explicit verbal
descriptions or narrative accounts of sexually explicit
nudity, sexual conduct, sexual excitement, or sadomasochistic
abuse that is intended to arouse or satisfy the sexual
desire of either the child or the person, provided that
no conviction shall be had for a violation of this subsection
on the unsupported testimony of a child.
(2) Any person who violates paragraph (1) of this subsection
shall be guilty of a felony and, upon conviction thereof,
shall be punished by imprisonment for not less than one
nor more than ten years or by a fine of not more than
$10,000.00; provided, however, that, if at the time of
the offense the victim was 14 or 15 years of age and the
defendant was no more than three years older than the
victim, then the defendant shall be guilty of a misdemeanor
of a high and aggravated nature.
(f)
(1) It shall be unlawful for any owner or operator of
a computer on-line
service, Internet service, or local bulletin board service
intentionally or willfully to permit a subscriber to utilize
the service to commit a violation of this Code section,
knowing that such person intended to utilize such service
to violate this Code section. No owner or operator of
a public computer on- line service, Internet service,
or local bulletin board service shall be held liable on
account of any action taken in good faith in providing
the aforementioned services.
(2) Any person who violates paragraph (1) of this subsection
shall be guilty of a misdemeanor of a high and aggravated
nature.
(g)
The sole fact that an undercover operative or law enforcement
officer was
involved in the detection and investigation of an offense
under this Code section shall not constitute a defense to
prosecution under this Code section.
(h) A person is subject to prosecution in this state pursuant
to Code Section 17-2-1,
relating to jurisdiction over crimes and persons charged
with commission of crimes
generally, for any conduct made unlawful by this Code section
which the person engages
in while either within or outside of this state if, by such
conduct, the person commits a
violation of this Code section which involves a child who
resides in this state or another
person believed by such person to be a child residing in
this state.
(i) Any violation of this Code section shall constitute
a separate offense.
•
State v. Kramer, 260 Ga. App. 546 (2003).
A warrant was executed where over 100 VHS videotapes containing
possible pornographic images were seized. The warrant was
issued to search the defendant's home for "videotapes,"
and was constitutionally inadequate, absent greater specificity.
•
Hoffman v. State, 259 Ga. App. 131 (2003).
The trial court did not abuse its discretion in admitting
defendant's prior federal conviction on charges of receiving
child pornography as a similar transaction evidence. Also,
evidence that defendant purchased mail-order pornographic
material prior to the date of the investigation which led
to the federal charge of receiving child pornography was
admissible.
•
Buckley v. State, 254 Ga. App. 61 (2002).
German National Police intercepted eight online images of
child pornography and gave statements to United States Customs
agents. A three month period of time elapsed between the
statements and the execution of a search warrant on the
defendant’s home. The statements were reliable, and
were enough for a finding of probable cause. The three month
delay did not render the information supporting the search
warrant stale. Probable cause existed, and the search warrant
was proper.
§
16-9-93. Criminal liability and penalties for crimes of
computer theft, trespass, invasion of privacy, forgery,
and password disclosure
(a)
Computer Theft. Any person who uses a computer or computer
network with knowledge that such use is without authority
and with the intention of:
(1) Taking or appropriating any property of another, whether
or not with the intention of depriving the owner of possession;
(2) Obtaining property by any deceitful means or artful
practice; or
(3) Converting property to such person's use in violation
of an agreement or other known legal obligation to make
a specified application or disposition of such property
shall
be guilty of the crime of computer theft.
(b)
Computer Trespass. Any person who uses a computer or computer
network with knowledge that such use is without authority
and with the intention of:
(1) Deleting or in any way removing, either temporarily
or permanently, any computer program or data from a computer
or computer network;
(2) Obstructing, interrupting, or in any way interfering
with the use of a computer program or data; or
(3) Altering, damaging, or in any way causing the malfunction
of a computer, computer network, or computer program,
regardless of how long the alteration, damage, or malfunction
persists
shall
be guilty of the crime of computer trespass.
(c) Computer Invasion of Privacy. Any person who uses a
computer or computer network with the intention of examining
any employment, medical, salary, credit, or any other financial
or personal data relating to any other person with knowledge
that such examination is without authority shall be guilty
of the crime of computer invasion of privacy.
(d) Computer Forgery. Any person who creates, alters, or
deletes any data contained in any computer or computer network,
who, if such person had created, altered, or deleted a tangible
document or instrument would have committed forgery under
Article 1 of this chapter, shall be guilty of the crime
of computer forgery. The absence of a tangible writing directly
created or altered by the offender shall not be a defense
to the crime of computer forgery if a creation, alteration,
or deletion of data was involved in lieu of a tangible document
or instrument.
(e) Computer Password Disclosure. Any person who discloses
a number, code, password, or other means of access to a
computer or computer network knowing that such disclosure
is without authority and which results in damages (including
the fair market value of any services used and victim expenditure)
to the owner of the computer or computer network in excess
of $500.00 shall be guilty of the crime of computer password
disclosure.
(f) Article not Exclusive. The provisions of this article
shall not be construed to preclude the applicability of
any other law which presently applies or may in the future
apply to any transaction or course of conduct which violates
this article.
(g) Civil Relief; Damages.
(1) Any person whose property or person is injured by
reason of a violation of any provision of this article
may sue therefor and recover for any damages sustained
and the costs of suit. Without limiting the generality
of the term, "damages" shall include loss of
profits and victim expenditure.
(2) At the request of any party to an action brought pursuant
to this Code section, the court shall by reasonable means
conduct all legal proceedings in such a way as to protect
the secrecy and security of any computer, computer network,
data, or computer program involved in order to prevent
possible recurrence of the same or a similar act by another
person and to protect any trade secrets of any party.
(3) The provisions of this article shall not be construed
to limit any person's right to pursue any additional civil
remedy otherwise allowed by law.
(4) A civil action under this Code section must be brought
within four years after the violation is discovered or
by exercise of reasonable diligence should have been discovered.
For purposes of this article, a continuing violation of
any one subsection of this Code section by any person
constitutes a single violation by such person.
(h)
Criminal Penalties.
(1) Any person convicted of the crime of computer theft,
computer trespass, computer invasion of privacy, or computer
forgery shall be fined not more than $50,000.00 or imprisoned
not more than 15 years, or both.
(2) Any person convicted of computer password disclosure
shall be fined not more than $5,000.00 or incarcerated
for a period not to exceed one year, or both.
•
Fugarino v. State, 243 Ga. App. 268 (2000).
The defendant's conviction for computer trespass was supported
by evidence that defendant, who was a computer programmer,
deleted large amounts of code from his employer's computer
in a vindictive and retaliatory manner and that employer
did not give defendant authority or permission for the deletions.
[This is the most recent case.]
As used in this article, the term:
(1) "Administrator" means the administrator appointed
under Part 2 of Article 15 of Chapter 1 of Title 10, the
"Fair Business Practices Act of 1975."
(2) "Business victim" means any individual or
entity that provided money, credit, goods, services, or
anything of value to someone other than the intended recipient
where the intended recipient has not given permission for
the actual recipient to receive it and the individual or
entity that provided money, credit, goods, services, or
anything of value has suffered financial loss as a direct
result of the commission or attempted commission of a violation
of this article.
(3) "Consumer victim" means any individual whose
personal identifying information has been obtained, compromised,
used, or recorded in any manner without the permission of
that individual.
(4) "Identifying information" shall include, but
not be limited to:
(A) Current or former names;
(B) Social security numbers;
(C) Driver's license numbers;
(D) Checking account numbers;
(E) Savings account numbers;
(F) Credit and other financial transaction card numbers;
(G) Debit card numbers;
(H) Personal identification numbers;
(I) Electronic identification numbers;
(J) Digital or electronic signatures;
(K) Medical identification numbers;
(L) Birth dates;
(M) Mother's maiden name;
(N) Selected personal identification numbers;
(O) Tax identification numbers;
(P) State identification card numbers issued by state
departments; or
(Q) Any other numbers or information which can be used
to access a person's or entity's resources.
(5) "Resources" includes, but is not limited
to:
(A) A person's or entity's credit, credit history, credit
profile, and credit rating;
(B) United States currency, securities, real property,
and personal property of any kind;
(C) Credit, charge, and debit accounts;
(D) Loans and lines of credit;
(E) Documents of title and other forms of commercial paper
recognized under Title 11;
(F) Any account, including a safety deposit box, with
a financial institution as defined by Code Section 7-1-4,
including a national bank, federal savings and loan association,
or federal credit union or a securities dealer licensed
by the Secretary of State or the federal Securities and
Exchange Commission; and
(G) A person's personal history, including but not limited
to records of such person's driving records; criminal,
medical, or insurance history; education; or employment.
A person commits the offense of identity fraud when without
the authorization or permission of a person with the intent
unlawfully to appropriate resources of or cause physical
harm to that person, or of any other person, to his or her
own use or to the use of a third party he or she:
(1) Obtains or records identifying information of a person
which would assist in accessing the resources of that person
or any other person; or
(2) Accesses or attempts to access the resources of a person
through the use of identifying information.
It shall be unlawful for any person to attempt or conspire
to commit any offense prohibited by this article. Any person
convicted of a violation of this Code section shall be punished
by imprisonment or community service, by a fine, or by both
such punishments not to exceed the maximum punishment prescribed
for the offense the commission of which was the object of
the attempt or conspiracy.
The administrator appointed under Code Section 10-1-395
shall have the authority to investigate any complaints of
consumer victims regarding identity fraud. In conducting
such investigations the administrator shall have all investigative
powers which are available to the administrator under Part
2 of Article 15 of Chapter 1 of Title 10, the "Fair
Business Practices Act of 1975." If, after such investigation,
the administrator determines that a person has been a consumer
victim of identity fraud in this state, the administrator
shall, at the request of the consumer victim, provide the
consumer victim with certification of the findings of such
investigation. Copies of any and all complaints received
by any law enforcement agency of this state regarding potential
violations of this article shall be transmitted to the Governor's
Office of Consumer Affairs. The Governor's Office of Consumer
Affairs shall maintain a repository for all complaints in
the State of Georgia regarding identity fraud. Information
contained in such repository shall not be subject to public
disclosure. The information in the repository may be transmitted
to any other appropriate investigatory agency or entity.
Consumer victims of identity fraud may file complaints directly
with the Governor's Office of Consumer Affairs. Employees
of the Governor's Office of Consumer Affairs may communicate
with consumer victims. Any and all transmissions authorized
under this Code section may be transmitted electronically,
provided that such transmissions are made through a secure
channel for the transmission of such electronic communications
or information, the sufficiency of which is acceptable to
the Governor's Office of Consumer Affairs. Nothing in this
Code section shall be construed to preclude any otherwise
authorized law enforcement or prosecutorial agencies from
conducting investigations and prosecuting offenses of identity
fraud.
The General Assembly finds that identity fraud involves
the use of identifying information which is uniquely personal
to the consumer or business victim of that identity fraud
and which information is considered to be in the lawful
possession of the consumer or business victim wherever the
consumer or business victim currently resides or is found.
Accordingly, the fraudulent use of that information involves
the fraudulent use of information that is, for the purposes
of this article, found within the county where the consumer
or business victim of the identity fraud resides or is found.
Accordingly, in a proceeding under this article, the crime
will be considered to have been committed in any county
where the person whose means of identification or financial
information was appropriated resides or is found, or in
any county in which any other part of the offense took place,
regardless of whether the defendant was ever actually in
such county.
(a) A violation of this article, other than a violation
of Code Section 16- 9-122, shall be punishable by imprisonment
for not less than one nor more than ten years or a fine
not to exceed $ 100,000.00, or both. Any person who commits
such a violation for the second or any subsequent offense
shall be punished by imprisonment for not less than three
nor more than 15 years, a fine not to exceed $ 250,000.00,
or both.
(b) Any person found guilty of a violation of this article
may be ordered by the court to make restitution to any consumer
victim or any business victim of such fraud.
(c) Each violation of this article shall constitute a separate
offense.
(d) Upon a conviction of a violation of this article, the
court may issue any order necessary to correct a public
record that contains false information resulting from the
actions which resulted in the conviction.
(a) The prohibitions set forth in Code Sections 16-9-121
and 16-9-122 shall not apply to nor shall any cause of action
arise under Code Sections 16-9-129 and 16-9-131 for:
(1) The lawful obtaining of credit information in the
course of a bona fide consumer or commercial transaction;
(2) The lawful, good faith exercise of a security interest
or a right to offset by a creditor or a financial institution;
(3) The lawful, good faith compliance by any party when
required by any warrant, levy, garnishment, attachment,
court order, or other judicial or administrative order,
decree, or directive; or
(4) The good faith use of identifying information with
the permission of the affected individual.
(b)
The exemptions provided in subsection (a) of this Code section
will not apply to a person intending to further a scheme
to violate Code Section 16- 9-121 or 16-9-122.
(c) It is not necessary for the state to negate any exemption
or exception in this article in any complaint, accusation,
indictment, or other pleading or in any trial, hearing,
or other proceeding under this article involving a business
victim. In such cases the burden of proof of any exemption
or exception is upon the business victim claiming it.
§
16-9-129. Business victims; damages, attorney's fees, and
costs
Any business victim who is injured by reason of any violation
of this article shall have a cause of action for the actual
damages sustained and, where appropriate, punitive damages.
Such business victim may also recover attorney's fees in
the trial and appellate courts and the costs of investigation
and litigation reasonably incurred.
§
16-9-130. Consumer victims; damages, attorney's fees, and
costs; procedure
(a) Any consumer victim who suffers injury or damages as
a result of a violation of this article may bring an action
individually or as a representative of a class against the
person or persons engaged in such violations under the rules
of civil procedure to seek equitable injunctive relief and
to recover general and punitive damages sustained as a consequence
thereof in any court having jurisdiction over the defendant;
provided, however, punitive damages shall be awarded only
in cases of intentional violation. A claim under this article
may also be asserted as a defense, setoff, cross- claim,
or counterclaim or third-party claim against such person.
(b) A court shall award three times actual damages for an
intentional violation.
(c) If the court finds in any action that there has been
a violation of this article, the consumer victim injured
by such violation shall, in addition to other relief provided
for in this Code section and irrespective of the amount
in controversy, be awarded reasonable attorney's fees and
expenses of litigation incurred in connection with said
action.
(d) It shall not be a defense in any action under this article
that others were, are, or will be engaged in like practices.
(e) In any action brought under this article the administrator
shall be served by certified or registered mail or statutory
overnight delivery with a copy of the initial complaint
and any amended complaint within 20 days of the filing of
such complaint. The administrator shall be entitled to be
heard in any such action, and the court where such action
is filed may enter an order requiring any of the parties
to serve a copy of any other pleadings in an action upon
the administrator.
Whenever an investigation has been conducted by the Governor's
Office of Consumer Affairs under this article and such investigation
reveals conduct which constitutes a criminal offense, the
administrator shall forward the results of such investigation
to the Attorney General or other prosecuting attorney of
this state who shall commence any criminal prosecution that
he or she deems appropriate.
This article is cumulative with other laws and is not exclusive.
The rights or remedies provided for in this article shall
be in addition to any other procedures, rights, remedies,
or duties provided for in any other law or in decisions
of the courts of this state dealing with the same subject
matter.
(1)
A person commits the offense of stalking when he or she
follows, places under
surveillance, or contacts another person at or about a
place or places without the consent of the other person
for the purpose of harassing and intimidating the other
person. For the purpose of this article, the terms "computer"
and "computer network" shall have the same meanings
as set out in Code Section 16-9-92; the term "contact"
shall mean any communication including without being limited
to communication in person, by telephone, by mail, by
broadcast, by computer, by computer network, or by any
other electronic device; and the place or places that
contact by telephone, mail, broadcast, computer, computer
network, or any other electronic device is deemed to occur
shall be the place or places where such communication
is received. For the purpose of this article, the term
"place or places" shall include any public or
private property occupied by the victim other than the
residence of the defendant. For the purposes of this article,
the term "harassing and intimidating" means
a knowing and willful course of conduct directed at a
specific person which causes emotional distress by placing
such person in reasonable fear for such person's safety
or the safety of a member of his or her immediate family,
by establishing a pattern of harassing and intimidating
behavior, and which serves no legitimate purpose. This
Code section shall not be construed to require that an
overt threat of death or bodily injury has been made.
(2) A person commits the offense of stalking when such
person, in violation of a bond to keep the peace posted
pursuant to Code Section 17-6-110, standing order issued
under Code Section 19-1-1, temporary restraining order,
temporary protective order, permanent restraining order,
permanent protective order, preliminary injunction, or
permanent injunction or condition of pretrial release,
condition of probation, or condition of parole in effect
prohibiting the harassment or intimidation of another
person, broadcasts or publishes, including electronic
publication, the picture, name, address, or phone number
of a person for whose benefit the bond, order, or condition
was made and without such person's consent in such a manner
that causes other persons to harass or intimidate such
person and the person making the broadcast or publication
knew or had reason to believe that such broadcast or publication
would cause such person to be harassed or intimidated
by others.
(b)
Except as provided in subsection (c) of this Code section,
a person who commits the offense of stalking is guilty of
a misdemeanor.
(c) Upon the second conviction, and all subsequent convictions,
for stalking, the defendant shall be guilty of a felony
and shall be punished by imprisonment for not less than
one year nor more than ten years.
(d) Before sentencing a defendant for any conviction of
stalking under this Code section or aggravated stalking
under Code Section 16-5-91, the sentencing judge may require
psychological evaluation of the offender and shall consider
the entire criminal record of the offender. At the time
of sentencing, the judge is authorized to issue a permanent
restraining order against the offender to protect the person
stalked and the members of such person's immediate family,
and the judge is authorized to require psychological treatment
of the offender as a part of the sentence, or as a condition
for suspension or stay of sentence, or for probation.
(a)
A person commits the offense of aggravated stalking when
such person, in violation of a bond to keep the peace posted
pursuant to Code Section 17-6-110, temporary restraining
order, temporary protective order, permanent restraining
order, permanent protective order, preliminary injunction,
good behavior bond, or permanent injunction or condition
of pretrial release, condition of probation, or condition
of parole in effect prohibiting the behavior described in
this subsection, follows, places under surveillance, or
contacts another person at or about a place or places without
the consent of the other person for the purpose of harassing
and intimidating the other person.
(b) Any person convicted of a violation of subsection (a)
of this Code section shall be guilty of a felony and, upon
conviction thereof, shall be punished by imprisonment for
not less than one nor more than ten years and by a fine
of not more than $10,000.00. The provisions of subsection
(d) of Code Section 16-5-90 apply to sentencing for conviction
of aggravated stalking.
§16-5-93 Right of Victim to Notification of Release
of Stalker
(a)
The victim of stalking or aggravated stalking shall be entitled
to notice of the release from custody of the person arrested
for and charged with the offense of stalking or aggravated
stalking and to notice of any hearing on the issue of bail
for such person. No such notice shall be required unless
the victim provides a landline telephone number other than
a pocket pager or electronic communication device number
to which such notice can be directed.
(b) The law enforcement agency, prosecutor, or court directly
involved with the victim at the outset of a criminal prosecution
for the offense of stalking or aggravated stalking shall
advise the victim of his or her right to notice and of the
requirement of the victim’s providing a landline telephone
number other than a pocket pager or electronic communication
device number to which the notice of custodial release or
bail hearing can be directed. Such victim shall transmit
the telephone number described in this subsection to the
court and custodian of the person charged with stalking
or aggravated stalking.
(c) Upon receipt of the telephone number, the custodian
of the person charged with stalking or aggravated stalking
shall take reasonable and necessary steps under the circumstances
to notify the victim of the person’s release from
custody. Such notice shall, at a minimum, include:
(1) Prior to the person’s release, placing a telephone
call to the number provided by the victim and giving notice
to the victim or any person answering the telephone who
appears to be sui juris or by leaving an appropriate message
on a telephone answering machine; and
(2) Following the person’s release, if the custodian
is unable to notify the victim by the method provided in
paragraph (1) of this subsection, telephoning the number
provided by the victim no less than two times in no less
than 15 minute intervals within one hour of custodial release
and giving notice to the victim or to any person answering
the telephone who appears to be sui juris or by leaving
an appropriate message on a telephone answering machine.
(d)
Upon receipt of the telephone number, the court conducting
a hearing on the issue of bail shall take reasonable and
necessary steps under the circumstances to notify the victim
of any scheduled hearing on the issue of bail. Such notice
shall, at a minimum, include placing a telephone call to
the number provided by the victim prior to any scheduled
hearing on the issue of bail.
(e) Notwithstanding any other provision of this Code section,
a scheduled bail hearing or the release of the person charged
with stalking or aggravated stalking shall not be delayed
solely for the purpose of effectuating notice pursuant to
this Code section for a period of more than 30 minutes.
(f) Upon the person’s release or escape from custody
after conviction and service of all or a portion of a sentence,
notification to the victim shall be provided by the State
Board of Pardons and Paroles as set forth in Code Sections
42-9-46 and 42-9-47.
(g) This Code section shall not apply to a custodian who
is transferring a person charged with stalking or aggravated
stalking to another custodian in this state.
(h) As used in this Code section, the term 'custodian' means
a warden, sheriff, jailer, deputy sheriff, police officer,
officer or employee of the Department of Juvenile Justice,
or any other law enforcement officer having actual custody
of an inmate.
(i) A custodian or his or her employing agency shall not
be liable in damages for a failure to provide the notice
required by this Code section, but the custodian shall be
subject to appropriate disciplinary action including termination
for such failure.
(a) A
person who is not a minor who alleges stalking by another
person may seek a restraining order by filing a petition
alleging conduct constituting stalking as defined in Code
Section 16-5-90. A person who is not a minor may also seek
relief on behalf of a minor by filing such a petition.
(b) Jurisdiction for such a petition shall be the same as
for family violence petitions as set out in Code Section
19-13-2.
(c) Upon the filing of a verified petition in which the
petitioner alleges with specific facts that probable cause
exists to establish that stalking by the respondent has
occurred in the past and may occur in the future, the court
may order such temporary relief ex parte as it deems necessary
to protect the petitioner or a minor of the household from
stalking. If the court issues an ex parte order, a copy
of the order shall be immediately furnished to the petitioner.
(d) The court may grant a protective order or approve a
consent agreement to bring about a cessation of conduct
constituting stalking. Orders or agreements may:
(1) Direct a party to refrain from such conduct;
(2) Order a party to refrain from harassing or interfering
with the other;
(3) Award costs and attorney’s fees to either party;
and
(4) Order either or all parties to receive appropriate psychiatric
or psychological services as a further measure to prevent
the recurrence of stalking.
(e)
The provisions of subsections (c) and (d) of Code Section
19-13-3, subsections (b), (c), and (d) of Code Section 19-13-4,
and Code Section 19-13-5, relating to family violence petitions,
shall apply to petitions filed pursuant to this Code section,
except that the clerk of court may provide forms for petitions
and pleadings to persons alleging conduct constituting stalking
and to any other person designated by the superior court
pursuant to this Code section as authorized to advise persons
alleging conduct constituting stalking on filling out and
filing such petitions and pleadings.
§
16-12-100.2. Computer Pornography and Child Exploitation
Prevention Act of 1999
.
. . (e)
(1)
A person commits the offense of obscene Internet contact
with a child if he or she has contact with someone he
or she knows to be a child or with someone he or she believes
to be a child via a computer on-line service or Internet
service, including but not limited to a local bulletin
board service, Internet chat room, e-mail, or on-line
messaging service, and the contact involves any matter
containing explicit verbal descriptions or narrative accounts
of sexually explicit nudity, sexual conduct, sexual excitement,
or sadomasochistic abuse that is intended to arouse or
satisfy the sexual desire of either the child or the person,
provided that no conviction shall be had for a violation
of this subsection on the unsupported testimony of a child.
(2) Any person who violates paragraph (1) of this subsection
shall be guilty of a felony and, upon conviction thereof,
shall be punished by imprisonment for not less than one
nor more than ten years or by a fine of not more than
$10,000.00; provided, however, that, if at the time of
the offense the victim was 14 or 15 years of age and the
defendant was no more than three years older than the
victim, then the defendant shall be guilty of a misdemeanor
of a high and aggravated nature.
