O.C.G.A.
O.C.G.A.

O.C.G.A. § 16-12-100.3 (2019)

Obscene telephone contact; conviction; penalties

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Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) As used in this Code section, the terms “sexual conduct,” “sexual excitement,” and “sadomasochistic abuse” have the same meanings as provided for those terms in Code Section 16-12-100.1, relating to electronically furnishing obscene materials to minors; the term “sexually explicit nudity” has the same meaning as provided for that term in Code Section 16-12-102, relating to distributing harmful materials to minors; and the term “child” means a person under 14 years of age.

(b) A person 17 years of age or over commits the offense of obscene telephone contact with a child if that person has telephone contact with an individual whom that person knows or should have known is a child, and that contact involves any aural matter containing explicit verbal descriptions or narrative accounts of sexually explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse which is intended to arouse or satisfy the sexual desire of either the child or the person, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.

(c)(1) Except as otherwise provided in other paragraphs of this subsection, a person convicted of the offense of obscene telephone contact with a child shall be guilty of a misdemeanor of a high and aggravated nature.

(2) Upon the first conviction of the offense of obscene telephone contact with a child:

(A) If the person convicted is less than 21 years of age, such person shall be guilty of a misdemeanor; or

(B) The judge may probate the sentence without regard to the age of the convicted person, and such probation may be upon the special condition that the defendant undergo a mandatory period of counseling administered by a licensed psychiatrist or a licensed psychologist. However, if the judge finds that such probation should not be imposed, the judge shall sentence the defendant to imprisonment; provided, further, that upon a defendant’s being incarcerated on a conviction for such first offense, the place of incarceration shall provide counseling to such defendant.

(3) Upon a second or subsequent conviction of such offense, the defendant shall be guilty of a felony and punished by imprisonment for not less than one nor more than five years.

History

Code 1981, § 16-12-100.3, enacted by Ga. L. 2000, p. 1237, § 1.

Annotations

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).

JUDICIAL DECISIONS

Text messages not within ambit of statute. - Defendant was charged with obscene telephone contact with a minor based on text messages of a sexually explicit nature that the defendant had sent by cellular phone. As a text message was in written format and not capable of being heard, it was not "aural matter" within the meaning of O.C.G.A. § 16-12-100.3(b); therefore, the charge had to be quashed. Frix v. State, 298 Ga. App. 538, 680 S.E.2d 582 (2009).

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PART 3 SALE OR DISTRIBUTION OF HARMFUL MATERIALS TO MINORS

Editor's notes. - Prior to the effective date of the Code, Ga. L. 1981, p. 1578, § 2, effective July 1, 1981, repealed the provisions originally assigned to this part (codified at §§ 16-12-101 through 16-12-108) and enacted new provisions which were derived principally from Ga. L. 1969, p. 222, § 1 and codified at §§ 16-12-110 through 16-12-113. This part was then repealed and reenacted by Ga. L. 1983, p. 1437, § 2, effective July 1, 1983, by which Act the former §§ 16-12-110 through 16-12-113 were repealed and new §§ 16-12-101 through 16-12-105 were enacted.

Because Ga. L. 1981, p. 1578, § 2 repealed Code sections designated §§ 16-12-101 through 16-12-108 and enacted new Code sections designated as §§ 16-12-110 through 16-12-113, the Code did not originally contain a Code section designated as § 16-12-109. In 2003, the Code Commission reserved § 16-12-109; however, Ga. L. 2007, p. 47, § 16, effective May 11, 2007, repealed the reservation of this Code section.

Law reviews. - For annual survey of criminal law and procedure, see 35 Mercer L. Rev. 103 (1983).

Notes of Decisions
Cited in 5 cases, 2009–2019 · leading case: Frix v. State, 680 S.E.2d 582 (Ga. Ct. App. 2009).
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Frix v. State, 680 S.E.2d 582 (Ga. Ct. App. 2009). · cites it 14× “1 (Count 1); (2) distribution of harmful materials to a minor in violation of OCGA § 16-12-103 (Count 2); (3) obscene telephone contact with a minor in violation of OCGA § 16-12-100.3 (Count 3); and (4) possession of methamphetamine in violation of OCGA § 16-13-30 (Count 4).”
McAllister v. State, 830 S.E.2d 443 (Ga. Ct. App. 2019). · cites it 2× “2 ; OCGA § 16-12-100.3. OCGA § 24-4-414 (d). Steele , 337 Ga.”
Gregory v. Sexual Offender Reg. Review Bd., 784 S.E.2d 392 (Ga. 2016). · cites it 2× “2; (xviii) Obscene telephone contact in violation of Code Section 16-12-100.3; or (xix) Any conduct which, by its nature, is a sexual offense against a victim who is a minor or an attempt to commit a sexual offense against a victim who is a minor.”
Yelverton v. State, 794 S.E.2d 613 (Ga. 2016). · cites it 2× “2; (xviii) Obscene telephone contact in violation of Code Section 16-12-100.3; or (xix) Any conduct which, by its nature, is a sexual offense against a victim who is a minor or an attempt to commit a sexual offense against a victim who is a minor.”
David Billy McAllister, Jr. v. State, No. A19A0613 (Ga. Ct. App. June 25, 2019). · cites it 2× “2; OCGA § 16-12-100.3. 14 OCGA § 24-4-414 (d).”
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