TITLE 16 CRIMES AND OFFENSES

Section 12. Offenses Against Public Health and Morals, 16-12-1 through 16-12-191.

ARTICLE 3 OBSCENITY AND RELATED OFFENSES

16-12-100.1. Electronically furnishing obscene material to minors.

As used in this Code section, the term:
1. "Bulletin board system" means a computer data and file service that is accessed wirelessly or by physical connection 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:
  1. To make available by electronic storage device, including floppy disks and other magnetic storage devices, or by CD-ROM; or
  2. To make available by allowing access to information stored in a computer, including making material available by operating a computer bulletin board system.
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:
  1. Taken as a whole, predominantly appeals to the prurient, shameful, or morbid interest of minors;
  2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
  3. 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.
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:
  1. 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
  2. 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.
Except as provided in subsection (d) of this Code section, any person who violates this Code section shall be guilty of a misdemeanor of a high and aggravated nature.
Any person who violates this Code section shall be guilty of a misdemeanor if:
1. At the time of the offense, the minor receiving the obscene materials was at least 14 years of age;
2. The receipt of the materials was with the permission of the minor; and
3. The defendant was 18 years of age or younger.

(Code 1981, §16-12-100.1, enacted by Ga. L. 1993, p. 735, § 1; Ga. L. 2013, p. 663, § 2/HB 156.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1993, "system" was substituted for "systems" in paragraph (a)(1).

Law reviews.

- For article, "'Sexting' to Minors in a Rapidly Evolving Digital Age: Frix v. State Establishes the Applicability of Georgia's Obscenity Statutes to Text Messages," see 61 Mercer L. Rev. 1283 (2010). For note on 1993 enactment of this Code section, see 10 Ga. St. U.L. Rev. 104 (1993).

JUDICIAL DECISIONS

Age of victim.

- Because the vast majority of high school students are under the age of 18 in November of a school year, the jury could have reasonably concluded that the victim was under 18 at the time of the crime. Wetzel v. State, 298 Ga. 20, 779 S.E.2d 263 (2015).

Accusation insufficient as to date of offense.

- Accusation that alleged contributing to the delinquency of a minor and electronically furnishing obscene material to a minor within a two and a half month time frame was subject to a demurrer because the state gave no explanation as to why an investigating officer was unable to ascertain the dates of the offenses from the victim's computer. State v. Meeks, 309 Ga. App. 855, 711 S.E.2d 403 (2011).

Text messages do not qualify.

- Sending a text message over a cellular phone does not meet the definition of "electronically furnishes" set forth in O.C.G.A. § 16-12-100.1(a)(3)(B) as to allowing access to information stored in a computer. Frix v. State, 298 Ga. App. 538, 680 S.E.2d 582 (2009).

Required registration as sex offender.

- Detective erroneously promised during an interview that a defendant would not be charged with an offense that required sex offender registration because a conviction for electronically furnishing obscene material to a minor under O.C.G.A. § 16-12-100.1 would require registration as a sex offender under O.C.G.A. § 42-1-12(e)(2); prior to the erroneous promise, the defendant's confession was voluntarily made under former O.C.G.A. § 24-3-50 (see now O.C.G.A. § 24-8-824) as the confession was made without the slightest hope of benefit. State v. Lee, 295 Ga. App. 49, 670 S.E.2d 879 (2008).

"Including" expanded, not limited, ways material could be made available.

- Term "including", as used in O.C.G.A. § 16-12-100.1(a)(3)(B), expanded, rather than limited, the ways by which obscene material could be made available to minors by allowing access to information stored in a computer. Wetzel v. State, 298 Ga. 20, 779 S.E.2d 263 (2015).

Cases Citing Georgia Code 16-12-100.1 From Courtlistener.com
Total Results: 4
Yelverton v. State
Court: Supreme Court of Georgia | Date Filed: 2016-11-30
Citation: 300 Ga. 312, 794 S.E.2d 613, 2016 Ga. LEXIS 780
Snippet: material to minors in violation of Code Section 16-12-100.1; (xvii) Computer pornography and child exploitation
Scott v. State
Court: Supreme Court of Georgia | Date Filed: 2016-07-05
Citation: 299 Ga. 568, 788 S.E.2d 468, 2016 Ga. LEXIS 460
Snippet: sexual stimulation or gratification.” OCGA § 16-12-100.1 (a) (7). • “Sexual excitement” is defined
Gregory v. Sexual Offender Registration Review Board
Court: Supreme Court of Georgia | Date Filed: 2016-03-21
Citation: 298 Ga. 675, 784 S.E.2d 392, 2016 Ga. LEXIS 242
Snippet: material to minors in violation of Code Section 16-12-100.1; (xvii) Computer pornography and child
Wetzel v. State
Court: Supreme Court of Georgia | Date Filed: 2015-11-02
Citation: 298 Ga. 20, 779 S.E.2d 263, 2015 Ga. LEXIS 790
Snippet: obscene material to a minor in violation of OCGA § 16-12-100.1 (b) (Count 3). The computer pornography

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