O.C.G.A.

O.C.G.A. § 16-3-1 (2019)

Minimum age

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

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 person shall not be considered or found guilty of a crime unless he has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime.

History

Code 1933, § 26-701, enacted by Ga. L. 1968, p. 1249, § 1.

Annotations

Law reviews. - For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B. J. 189 (1969). For article suggesting upward adjustment to age 15 of the age of criminal responsibility and creation of a rebuttable presumption of adult accountability for youths aged 15 to 18, see 23 Mercer L. Rev. 341 (1972). For survey article on constitutional law,

see 34 Mercer L. Rev. 53 (1982). For article, ‘‘Annual Survey of Georgia Law: June 1, 2015 - May 31, 2016: Special Contribution: Georgia’s Safe Harbor Ruling for Affirmative Defenses in Criminal Cases Should Be Revisited,’’ see 68 Mercer L. Rev. 35 (2016). For comment criticizing Hatch v. O’Neill, 231 Ga. 446, 202 S.E.2d 44 (1973), holding individual under age of criminal responsibility not civilly liable for willful torts, see 26 Mercer L. Rev. 367 (1974).

JUDICIAL DECISIONS Section raises defense for purpose of protecting children from consequences of criminal guilt. - Statute did not provide that a person under 13 years of age was incapable of performing an act which was designated a crime under the laws of this state; it simply raised a defense for such a person because of social desirability of protecting those no more than 12 years of age from consequences of criminal guilt. K.M.S. v. State, 129 Ga. App. 683, 200 S.E.2d 916 (1973). Child not guilty of contributory negligence for violation of laws. - In a personal injury action by a 10-year-old child, since the child could not be found guilty of violating the criminal law, the trial court erred by charging that the child could be guilty of contributory negligence per se for violating certain traffic laws. Sorrells v. Miller, 218 Ga. App. 641, 462 S.E.2d 793 (1995). Legislative intent. - Trial court did not unfairly enhance defendant’s sentence for armed robbery based on a previous aggravated child molestation conviction, committed when defendant was 13 years old, as: (1) under O.C.G.A. § 16-3-1, the legislature made the age of 13 the age of

criminal responsibility in Georgia; (2) the legislature did not elect to carve out an exception that would exempt youthful offenders from the sentencing provisions of O.C.G.A. § 17-10-7(b)(2); and (3) the Georgia Supreme Court had upheld the constitutionality of the ‘‘two violent felonies’’ statute, O.C.G.A. § 17-10-7(b)(2). Lee v. State, 267 Ga. App. 834, 600 S.E.2d 825 (2004). Self-incrimination. - If witness is exempt from criminal prosecution because of age, protection against self-incrimination is unnecessary. Jones v. State, 128 Ga. App. 885, 198 S.E.2d 336 (1973). Age referred to in O.C.G.A. § 16-3-1 is biological age, not ‘‘mental age.’’ Couch v. State, 253 Ga. 764, 325 S.E.2d 366 (1985). Application in a tort action. - Summary judgment was properly denied on a parent’s claim of intentional infliction of emotional distress, false arrest, false imprisonment, and invasion of privacy arising out of an accusation by store employees that the parent’s nine-year-old child stole from the store because the child was below the age of 13, the age of criminal

responsibility under O.C.G.A. § 16-3-1, and was legally incapable of giving consent to their actions under O.C.G.A. §§ 51-11-2 and 51-11-6. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008). Cited in Carter v. State, 122 Ga. App. 21, 176 S.E.2d 238 (1970); Brady v. Lewless, 124 Ga. App. 858, 186 S.E.2d 310 (1971); Hatch v. O’Neill, 231 Ga. 446, 202 S.E.2d 44 (1973); M.S.K. v. State, 131 Ga. App. 1, 205 S.E.2d 59 (1974); Soles v. Beasley, 137 Ga. App. 280, 223 S.E.2d 477 (1976); Carrindine v. Ricketts, 236 Ga.

283, 223 S.E.2d 627 (1976); Lockett v. State, 143 Ga. App. 629, 239 S.E.2d 238 (1977); Morris v. State, 150 Ga. App. 310, 257 S.E.2d 378 (1979); Barrett v. Carter, 248 Ga. 389, 283 S.E.2d 609 (1981); Beldonza v. State, 160 Ga. App. 647, 288 S.E.2d 37 (1981); Green v. Gaydon, 174 Ga. App. 796, 331 S.E.2d 106 (1985); Spivey v. Sellers, 185 Ga. App. 241, 363 S.E.2d 856 (1987); Waugh v. State, 263 Ga. 691, 437 S.E.2d 297 (1993); Luke v. State, 222 Ga. App. 203, 474 S.E.2d 49 (1996); Arbegast v. State, 332 Ga. App. 414, 773 S.E.2d 283 (2015).

RESEARCH REFERENCES Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 34. C.J.S. - 43 C.J.S., Infants, § 378.

Notes of Decisions

Cited in 42 cases (2 in the last 5 years), 1983–2025 · leading case: Wilson v. State, 860 S.E.2d 485 (Ga. 2021).

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Wilson v. State, 860 S.E.2d 485 (Ga. 2021). · cites it 67× “Specifically, he argues that, because he was between the ages of 11 and 13 when the alleged prior offenses occurred, either he lacked the capacity to commit a crime under OCGA § 16-3-1, 3 or the State was required to prove by a preponderance of the evidence that he had the…”

Adams v. State, 707 S.E.2d 359 (Ga. 2011). · cites it 64× “Adams contends on appeal that the time period for which he was convicted includes a period in which, because of his age, he could not be found criminally responsible.”

McClure v. State, 306 Ga. 856 (Ga. 2019). · cites it 6× “3 As we have 2 See OCGA § 16-3-1 et seq. See OCGA § 16-3-28 (“A defense based upon any of the provisions of [Title 16, Chapter 3, Article 2] is an affirmative defense.”

Luke v. State, 474 S.E.2d 49 (Ga. Ct. App. 1996). · cites it 14× “In reaching this conclusion, we relied upon OCGA § 16-3-1, which sets the age of criminal responsibility at 13.”

Todd v. Byrd, 640 S.E.2d 652 (Ga. Ct. App. 2006). · cites it 8× “OCGA § 16-3-1." (Citations omitted.) The court also stated that "whether a child can be contributorily negligent depends upon each child's mental and physical capabilities, and that question is one for the jury.”

Dixon v. State, 596 S.E.2d 147 (Ga. 2004). · cites it 4× “See OCGA § 16-3-1. [20] There was no allegation of sodomy in the indictment.”

Burger v. Kemp, 483 U.S. 776 (1987). · cites it 2× “[3] Although an individual may be held criminally responsible at the age of 13, Ga. Code Ann. § 16-3-1 (1984), the age of legal majority in Georgia is 18 years, § 39-1-1 (1982).”

Robinson v. State, 805 S.E.2d 103 (Ga. Ct. App. 2017). · cites it 2× “See OCGA § 16-3-1 (age 13)[.]” Dean v. State, 321 Ga.”

Mcclure v. The State., 815 S.E.2d 313 (Ga. Ct. App. 2018). · cites it 3× “The trouble is that there isn’t any there there. The rule has no basis in statute.”

Bunn v. State, 728 S.E.2d 569 (Ga. 2012). · cites it 2× “, OCGA§§ 16-3-1 (establishing 13 as the age of criminal responsibility), 16-6-3 (establishing 16 as the age of consent); City of Dallas v.”

Cooper v. State, 348 S.E.2d 486 (Ga. Ct. App. 1986). · cites it 4× “OCGA § 16-3-1. Thus, our present situation regarding sodomy is very similar to rape in 1852 when the Supreme Court held: "A child under ten years [then the age of criminality] of age, cannot consent to carnal intercourse, so as to rebut the presumption of force.”

Ledford v. State, 721 S.E.2d 585 (Ga. Ct. App. 2011). · cites it 2× “To the contrary, under OCGA § 16-3-1 “[a] person shall not be considered or found guilty of a crime unless he has attained the age of 13 years at *395 the time of the act, omission, or negligence constituting the crime.”

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