O.C.G.A.
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.
As used in this part, the term: (1) “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. (2) “Knowingly” means having a general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both: (A) The character and content of any material described in this part which is reasonably susceptible to examination by the defendant; and (B) The age of the minor; provided, however, that an honest mistake shall constitute an excuse from liability in this part if the defendant made a reasonable, bona fide attempt to ascertain the true age of such minor. (3) “Minor” means a person less than 18 years of age. (4) “Sadomasochistic abuse” means actual or simulated flagellation or torture by or upon a person who is nude, clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained by one so clothed or nude. (5) “Sexual conduct” means actual or simulated acts of masturbation, homosexuality, sexual intercourse, or physical contact in an act of apparent sexual stimulation or gratification with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is female, breasts. (6) “Sexual excitement” means the condition of human male or female genitals when in a state of sexual stimulation or arousal. (7) “Sexually explicit nudity” means a state of undress so as to expose the human male or female genitals, pubic area, or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered or uncovered male genitals in a discernibly turgid state.
OFFENSES/HEALTH & MORALS
History
Code 1981, § 16-12-102, enacted by Ga.
L. 1983, p. 1437, § 2; Ga. L. 1984, p. 1495, § 3; Ga. L. 1996, p. 6, § 16.
Annotations
JUDICIAL DECISIONS Constitutionality. - Definition of material targeted in O.C.G.A. § 16-12-102 does not involve “legislative overkill”; the definition employs a narrowly crafted adaptation of the current definition of adult obscenity announced by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). American Booksellers v. Webb, 919 F.2d 1493, 1990 U.S. App. LEXIS 22251 (11th Cir. 1990), cert. denied, 500 U.S. 942, 111 S. Ct. 2237, 114 L. Ed. 2d 479, 1991 U.S. LEXIS 2930 (1991). O.C.G.A. § 16-12-102 covers only material unprotected to minors and is not so indeterminate that the statute unduly chills protected expression. American Booksellers v. Webb, 919 F.2d 1493, 1990 U.S. App. LEXIS 22251 (11th Cir. 1990), cert. denied, 500 U.S. 942, 111 S. Ct. 2237, 114 L. Ed. 2d 479, 1991 U.S. LEXIS 2930 (1991). “Obscene” work viewed “as a whole.” - The O.C.G.A. § 16-12-103(a)(1) charge against the defendant was based on defendant’s exhibiting to a minor an allegedly pornographic motion picture, and the jury was allowed to view a videotape of this motion picture; but at some point during the showing of this film, defense counsel stipulated that the film was sexually explicit, and the remainder of the film was not shown to the jury, as a result of this truncation of the jury’s view of the film,
there was insufficient evidence under which the jury could have found defendant guilty of this charge since, in order to be adjudged obscene, the work must depict sexually explicit nudity and be harmful to minors; in order to be adjudged harmful to minors, the work must meet the three-part test set out in O.C.G.A. § 16-12-102(1)(A), (B), and (C) and in order to determine whether the work meets the tests set out in subparagraphs (A) and (C), the work must be viewed “as a whole.” Hunter v. State, 257 Ga. 571, 361 S.E.2d 787, 1987 Ga. LEXIS 1009 (1987). Materials “harmful to minors.” - In a prosecution for exhibiting harmful material to a minor, pursuant to the statutory definition, the question for the jury was whether the materials in question were “harmful to minors” under the “prevailing standards in the adult community” and testimony of a defense witness that the materials were not in fact harmful was irrelevant. Hollis v. State, 215 Ga. App. 35, 450 S.E.2d 247, 1994 Ga. App. LEXIS 1139 (1994). Watching sexually explicit videotapes with minor. - In a prosecution for child molestation, based on defendant’s forcing a minor to watch sexually explicit videotapes with the defendant, the state was not required to prove that the tapes were “obscene” and “harmful to minors.” Stroeining v. State, 226 Ga. App. 410, 486 S.E.2d 670, 1997 Ga. App. LEXIS 635 (1997).
OPINIONS OF THE ATTORNEY GENERAL Protection of minors. - Public libraries may be required by legislation to take appropriate action to protect minors
from exposure to materials which fall within the definition of harmful to minors. 1995 Op. Att’y Gen. No. U95-24.
Notes of Decisions
Am. Booksellers v. James Webb, 919 F.2d 1493 (11th Cir. 1990).
· cites it 6× “Section 3 of the Act, which is codified at O.C.G.A. §§ 16-12-102 to 16-12-104 (1988), 2 regu *1496 lates the distribution and display of sexually explicit materials deemed “harmful to minors” under the definition provided in section 16-12-102.”
Am. Booksellers Ass'n, Inc. v. Webb, 590 F. Supp. 677 (N.D. Ga. 1984).
· cites it 13× “Section 3 of the Act amends Part 3 of Article 3 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to the sale and distribution of harmful materials to minors, by repealing the current O.C.G.A. §§ 16-12-102 through *682 16-12-104 (Michie Supp.”
Hunter v. State, 361 S.E.2d 787 (Ga. 1987).
· cites it 14× “OCGA §§ 16-12-102; 16-12-103; and 16-12-104 were amended by Section 3 of Georgia Laws 1984, pp.”
Scott v. State, 788 S.E.2d 468 (Ga. 2016).
· cites it 2× “” OCGA § 16-12-102 (7). • “Sexual conduct” is defined as “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…”
Am. Booksellers Ass'n, Inc. v. Webb, 643 F. Supp. 1546 (N.D. Ga. 1986).
· cites it 10× “Seeking declaratory and injunctive relief, plaintiffs 1 challenge a Georgia statute, O.C.G.A. §§ 16-12-102— 16-12-104 (the “Act”), 2 that, inter alia, makes it a criminal offense to sell to minors or to display in a place accessible to minors any material deemed “harmful to…”
Stroeining v. State, 486 S.E.2d 670 (Ga. Ct. App. 1997).
· cites it 8× “In his first enumeration of error, appellant contends that the State failed to prove that the videotapes shown to the victim were “obscene” and thus, “harmful” to minors under the definitions provided in OCGA § 16-12-102 (1). Therefore, appellant argues, simply proving that…”
Am. Booksellers Assn. v. Webb, 329 S.E.2d 495 (Ga. 1985).
· cites it 6× “Laws 1495 (hereinafter the Act), amending OCGA § 16-12-102 et seq., on state and federal constitutional grounds.”
Hollis v. State, 450 S.E.2d 247 (Ga. Ct. App. 1994).
· cites it 6× “” OCGA § 16-12-102 (1). The question for the jury was not whether the materials in question are “harmful to minors” in some unstructured, theoretical sense, but rather whether they were harmful under the “prevailing standards in the adult community as a whole with respect to…”
State v. Cafe Erotica, Inc., 500 S.E.2d 574 (Ga. 1998).
· cites it 4× “” OCGA § 16-12-102 (3). Without explanation, however, OCGA § 16-12-103 (b) (2) expands the reach of the statute when a live performance “which is harmful to minors” and contains sexually explicit nudity, sexual conduct, or sadomasochistic abuse is involved.”
Am. Booksellers Ass'n, Inc. v. Webb, 654 F. Supp. 503 (N.D. Ga. 1987).
· cites it 2× “This order will resolve the sole remaining issue in plaintiffs’ challenge to O.C.G.A. §§ 16-12-102 — 16-12-104 (the “Act”).”
Joseph Boone v. State (Ga. Ct. App. 2024).
· cites it 2× “6 “Sexually explicit nudity” as defined in OCGA § 16-12-102 (7) “means a state of undress so as to expose the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering…”
— 16-12-102(1) — 3 cases
Am. Booksellers v. James Webb, 919 F.2d 1493 (11th Cir. 1990).
“Section 3 of the Act, which is codified at O.C.G.A. §§ 16-12-102 to 16-12-104 (1988), 2 regu *1496 lates the distribution and display of sexually explicit materials deemed “harmful to minors” under the definition provided in section 16-12-102.”
Am. Booksellers Ass'n, Inc. v. Webb, 643 F. Supp. 1546 (N.D. Ga. 1986).
“Seeking declaratory and injunctive relief, plaintiffs 1 challenge a Georgia statute, O.C.G.A. §§ 16-12-102— 16-12-104 (the “Act”), 2 that, inter alia, makes it a criminal offense to sell to minors or to display in a place accessible to minors any material deemed “harmful to…”
Am. Booksellers Ass'n, Inc. v. Webb, 590 F. Supp. 677 (N.D. Ga. 1984).
“Section 3 of the Act amends Part 3 of Article 3 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to the sale and distribution of harmful materials to minors, by repealing the current O.C.G.A. §§ 16-12-102 through *682 16-12-104 (Michie Supp.”
— 16-12-102(1)(A) — 1 case
Am. Booksellers Ass'n, Inc. v. Webb, 590 F. Supp. 677 (N.D. Ga. 1984).
“Section 3 of the Act amends Part 3 of Article 3 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to the sale and distribution of harmful materials to minors, by repealing the current O.C.G.A. §§ 16-12-102 through *682 16-12-104 (Michie Supp.”
— 16-12-102(2) — 1 case
Am. Booksellers Ass'n, Inc. v. Webb, 643 F. Supp. 1546 (N.D. Ga. 1986).
“Seeking declaratory and injunctive relief, plaintiffs 1 challenge a Georgia statute, O.C.G.A. §§ 16-12-102— 16-12-104 (the “Act”), 2 that, inter alia, makes it a criminal offense to sell to minors or to display in a place accessible to minors any material deemed “harmful to…”
— 16-12-102(3) — 1 case
State v. Cafe Erotica, Inc., 500 S.E.2d 574 (Ga. 1998).
“” OCGA § 16-12-102 (3). Without explanation, however, OCGA § 16-12-103 (b) (2) expands the reach of the statute when a live performance “which is harmful to minors” and contains sexually explicit nudity, sexual conduct, or sadomasochistic abuse is involved.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.