TITLE 16 CRIMES AND OFFENSES

Section 5. Crimes Against the Person, 16-5-1 through 16-5-110.

ARTICLE 3 KIDNAPPING, FALSE IMPRISONMENT, AND RELATED OFFENSES

16-5-46. Trafficking of persons for labor or sexual servitude.

As used in this Code section, the term:
1. "Coercion" means:
  1. Causing or threatening to cause bodily harm to any individual, physically restraining or confining any individual, or threatening to physically restrain or confine any individual;
  2. Exposing or threatening to expose any fact or information or disseminating or threatening to disseminate any fact or information that would tend to subject an individual to criminal or immigration proceedings, hatred, contempt, or ridicule;
  3. Destroying, concealing, removing, confiscating, or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document, of any individual;
  4. Providing a controlled substance to such individual for the purpose of compelling such individual to engage in labor or sexual servitude against his or her will; or
  5. Causing or threatening to cause financial harm to any individual or using financial control over any individual.
2. "Controlled substance" shall have the same meaning as set forth in Code Section 16-13-21.
3. "Deception" means:
  1. Creating or confirming another's impression of an existing fact or past event which is false and which the accused knows or believes to be false;
  2. Maintaining the status or condition of an individual arising from a pledge by such individual of his or her personal services as security for a debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined, or preventing an individual from acquiring information pertinent to the disposition of such debt; or
  3. Promising benefits or the performance of services which the accused does not intend to deliver or perform or knows will not be delivered or performed. Evidence of failure to deliver benefits or perform services standing alone shall not be sufficient to authorize a conviction under this Code section.
4. "Developmental disability" shall have the same meaning as set forth in Code Section 37-1-1.
5. "Labor servitude" means work or service of economic or financial value which is performed or provided by another individual and is induced or obtained by coercion or deception.
6. "Performance" shall have the same meaning as set forth in Code Section 16-12-100.
7. "Sexually explicit conduct" shall have the same meaning as set forth in Code Section 16-12-100.
8. "Sexual servitude" means any sexually explicit conduct or performance involving sexually explicit conduct for which anything of value is directly or indirectly given, promised to, or received by any individual, which conduct is induced or obtained:
  1. By coercion or deception;
  2. From an individual who is under the age of 18 years;
  3. From an individual whom the accused believes to be under the age of 18 years;
  4. From an individual who has a developmental disability; or
  5. From an individual whom the accused believes to have a developmental disability.
A person commits the offense of trafficking a person for labor servitude when that person knowingly subjects another person to or maintains another person in labor servitude or knowingly recruits, entices, harbors, transports, provides, or obtains by any means another person for the purpose of labor servitude.
A person commits the offense of trafficking an individual for sexual servitude when that person knowingly:
1. Subjects an individual to or maintains an individual in sexual servitude;
2. Recruits, entices, harbors, transports, provides, or obtains by any means an individual for the purpose of sexual servitude; or
3. Solicits or patronizes by any means an individual to perform sexually explicit conduct on behalf of such person when such individual is the subject of sexual servitude.
The age of consent for sexual activity or the accused's lack of knowledge of the age or developmental disability of the individual being trafficked shall not constitute a defense in a prosecution for a violation of this Code section.
The sexual history or history of commercial sexual activity of a person alleged to have been trafficked or such person's connection by blood or marriage to an accused in the case or to anyone involved in such person's trafficking shall be excluded from evidence if the court finds at a hearing outside the presence of the jury that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
1. Except as provided in paragraph (2) of this subsection, any person who commits the offense of trafficking an individual for labor servitude shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment for not less than ten nor more than 20 years and a fine not to exceed $100,000.00.
2. Any person who commits the offense of trafficking an individual for labor servitude against an individual who is under 18 years of age and such individual under the age of 18 years was coerced or deceived into being trafficked for labor or if the offense is committed against an individual who has a developmental disability, the person shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment for not less than 25 nor more than 50 years or life imprisonment and a fine not to exceed $100,000.00.
3. Except as provided in paragraph (4) of this subsection, any person who violates paragraph (1) or (2) of subsection (c) of this Code section shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment for not less than ten nor more than 20 years.
4. Any person who violates paragraph (1) or (2) of subsection (c) of this Code section committed against an individual under 18 years of age and such individual under the age of 18 years was coerced or deceived into such violation or if such violation is committed against an individual who has a developmental disability, such person shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment for not less than 25 nor more than 50 years or life imprisonment.
5. Any person who violates paragraph (3) of subsection (c) of this Code section shall be guilty of a felony. When such offense is committed against an individual who is 16 years of age or older, upon conviction, such person shall be punished by imprisonment for not less than five nor more than 20 years. When such offense is committed against an individual who is younger than 16 years of age or an individual known to have a developmental disability, upon conviction, such person shall be punished by imprisonment for not less than ten nor more than 20 years.
1. As used in this subsection, the terms "civil forfeiture proceedings," "proceeds," and "property" shall have the same meanings as set forth in Code Section 9-16-2.
2. Any property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this Code section and any proceeds are declared to be contraband and no person shall have a property right in them.
3. Any property subject to forfeiture pursuant to paragraph (2) of this subsection shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.
4. The Attorney General shall be specifically authorized to commence civil forfeiture proceedings under this Code section.
Prosecuting attorneys and the Attorney General shall have concurrent authority to prosecute any criminal cases arising under the provisions of this Code section and to perform any duty that necessarily appertains thereto.
Each violation of this Code section shall constitute a separate offense and shall not merge with any other offense.
A corporation may be prosecuted under this Code section for an act or omission constituting a crime under this Code section only if an agent of the corporation performs the conduct which is an element of the crime while acting within the scope of his or her office or employment and on behalf of the corporation and the commission of the crime was either authorized, requested, commanded, performed, or within the scope of his or her employment on behalf of the corporation or constituted a pattern of illegal activity that an agent of the company knew or should have known was occurring.
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; provided, however, that Code Section 16-3-25 may still provide an absolute defense.

(Code 1981, §16-5-46, enacted by Ga. L. 2006, p. 105, § 3/SB 529; Ga. L. 2011, p. 217, § 1/HB 200; Ga. L. 2015, p. 693, § 2-2/HB 233; Ga. L. 2016, p. 377, § 1/HB 770; Ga. L. 2017, p. 489, § 1/HB 341; Ga. L. 2017, p. 774, § 16/HB 323; Ga. L. 2018, p. 628, § 1/HB 732.)

The 2011 amendment, effective July 1, 2011, rewrote this Code section.

The 2015 amendment, effective July 1, 2015, substituted the present provisions of subsection (g) for the former provisions, which read: "All real and personal property of every kind used or intended for use in the course of, derived from, or realized through a violation of this Code section shall be subject to forfeiture to the state. Forfeiture shall be had by the same procedure set forth in Code Section 16-14-7. Prosecuting attorneys and the Attorney General may commence forfeiture proceedings under this Code section." See Editor's notes for applicability.

The 2016 amendment, effective July 1, 2016, rewrote subsection (a); substituted "or developmental disability of the individual" for "of the person" in the middle of subsection (d); in paragraph (f)(1), substituted "person" for "accused" near the beginning, substituted "an individual" for "a person" near the middle, and substituted "20 years and a fine not to exceed $100,000.00" for "20 years, a fine not to exceed $100,000.00, or both" at the end; in paragraph (f)(2), substituted "an individual" for "a person" three times, substituted "person" for "accused" near the beginning, substituted "20 years and a fine not to exceed $100,000.00;" for "20 years, a fine not to exceed $100,000.00, or both;", substituted "such individual" for "such person", substituted "servitude or if the offense is committed against an individual who has a developmental disability, the person" for "servitude, the accused", and substituted "imprisonment and a fine not to exceed $100,000.00" for "imprisonment, a fine not to exceed $100,000.00, or both" at the end; and added subsection (k).

The 2017 amendments. The first 2017 amendment, effective July 1 2017, substituted the present provisions of subsection (c) for the former provisions, which read: "A person commits the offense of trafficking a person for sexual servitude when that person knowingly subjects another person to or maintains another person in sexual servitude or knowingly recruits, entices, harbors, transports, provides, or obtains by any means another person for the purpose of sexual servitude."; deleted "or sexual" following "individual for labor" in the middle of paragraph (f)(1) and near the beginning of paragraph (f)(2); in paragraph (f)(2), deleted "under the age of 18 years shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment for not less than ten nor more than 20 years and a fine not to exceed $100,000.00; provided, however, that if the offense is committed against an individual" following "individual who is" near the middle, and deleted "or sexual servitude" following "trafficked for labor" in the middle; and added paragraphs (f)(3) through (f)(5). The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, redesignated former paragraph (a)(1) as present paragraph (a)(4), and redesignated former paragraphs (a)(2) through (a)(4) as present paragraphs (a)(1) through (a)(3), respectively.

The 2018 amendment, effective July 1, 2018, inserted "or patronizes" near the beginning of paragraph (c)(3) and substituted "16 years of age or older" for "16 or 17 years of age" in the middle of the second sentence of paragraph (f)(5).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2011, a comma was inserted following "of this subsection" in paragraph (f)(1).

Editor's notes.

- Ga. L. 2006, p. 105, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Security and Immigration Compliance Act.' All requirements of this Act concerning immigration or the classification of immigration status shall be construed in conformity with federal immigration law."

Ga. L. 2006, p. 105, § 10(b), not codified by the General Assembly, provides that this Code section shall not apply to any offense committed prior to July 1, 2007.

Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."

Law reviews.

- For article on 2006 enactment of this Code section, see 23 Ga. St. U.L. Rev. 247 (2006). For annual survey of labor and employment law, see 58 Mercer L. Rev. 211 (2006). For article, "The Georgia Security and Immigration Compliance Act: Comprehensive Immigration Reform in Georgia - 'Think Globally ... Act Locally'," see 13 Ga. St. B.J. 14 (2007). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 131 (2011). For article, "Crimes and Offenses: Crimes Against the Person," see 28 Ga. St. U.L. Rev. 131 (2011). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017).

JUDICIAL DECISIONS

Convictions did not merge.

- Trial court did not err in imposing separate sentences on Counts 1, 3, and 5, instead of merging the sentences and imposing a single life sentence, because Counts 1, 3, and 5 of the indictment each alleged that the defendant trafficked the victim for sexual servitude on different dates - between January 1 and April 1, 2012, between April 5 and 8, 2012, and on April 10, 2012; none of those dates or time periods overlapped; and each count was supported by specific, distinguishable, and independent evidence at trial; thus, the defendant was not convicted on more than one count for the same actions committed on a single day or during the same period of days as would be required for the convictions to merge as a matter of fact. Byrd v. State, 344 Ga. App. 780, 811 S.E.2d 85 (2018).

Failure to request jury instruction on crime of pimping.

- Counsel was not ineffective for failing to request a jury instruction on the crime of pimping as a lesser-included offense of trafficking a minor for sexual servitude without the use of coercion because the jury found the defendant guilty on the three trafficking without coercion counts and on three related counts charging the greater offense of trafficking the victim for sexual servitude through the use of coercion; thus, the defendant did not meet the defendant's burden of showing that there was a reasonable possibility that the jury would have acquitted the defendant on all of the indicted offenses and, instead, convicted the defendant only of pimping if counsel had requested a jury instruction on pimping as a lesser-included offense. Byrd v. State, 344 Ga. App. 780, 811 S.E.2d 85 (2018).

Counsel was not ineffective for failing to request a jury instruction on the crime of pimping as a lesser-included offense of trafficking a minor for sexual servitude without the use of coercion because counsel believed that requesting an instruction on pimping as a lesser-included offense would have eliminated any chance of obtaining a full acquittal on all charges; and requesting a pimping instruction would have given the jury the opportunity to acquit the defendant on the sexual trafficking charges, but still find the defendant guilty of pimping, and that potential outcome outweighed any benefit to the defendant as pimping carried a substantial sentence that was comparable to that of trafficking for sexual servitude without coercion. Byrd v. State, 344 Ga. App. 780, 811 S.E.2d 85 (2018).

Evidence sufficient for conviction.

- Based on evidence that the defendant kept the victim in a state of financial dependence, provided the victim with drugs and alcohol to keep the victim compliant, and the defendant told the victim the defendant needed money to keep the defendant out of jail, the jury could infer that the defendant used coercion and deception in an effort to overmaster the victim's will and compel the victim to engage in sexually explicit conduct. Lemery v. State, 330 Ga. App. 623, 768 S.E.2d 800 (2015).

Defendant's conviction for trafficking a person for sexual servitude was supported by evidence that the victim worked for the defendant as a prostitute, danced at adult entertainment clubs and stripper parties, and gave erotic massages, giving all the money earned to the defendant, promoted the defendant's escort service, and continued to act as a prostitute for the defendant regardless of whether the defendant was physically present on a given day. Ferguson v. State, 335 Ga. App. 862, 783 S.E.2d 380 (2016).

Convictions for attempting to commit trafficking a person for sexual servitude, conspiring to commit pimping, and enticing a child under 16 for indecent purposes were supported by evidence that two victims were taken home from a bar by the defendant and one was asked if she would be comfortable doing prostitution in the defendant's household, and the two victims gave out a business card for the escort service and posted ads for prostitution on Craigslist. Ferguson v. State, 335 Ga. App. 862, 783 S.E.2d 380 (2016).

Evidence was sufficient to convict the defendant of pimping a person under the age of 18, contributing to the delinquency of a minor, and trafficking a person for sexual servitude because the copies of the birth certificate and social security card found in the victim's purse showed that the victim was under the age of 18; and an employee of the youth residence, from which the victim had recently run away, verified the victim's identity and that the victim was 16 years old. Mackey v. State, 342 Ga. App. 791, 805 S.E.2d 596 (2017).

Counsel not ineffective in advising on sentence.

- Trial counsel's performance was not deficient for not informing the defendant that the defendant would not be eligible for parole for 30 years because the offenses of trafficking a person for sexual servitude that the defendant was convicted of did not constitute serious violent felonies; and no other authority or competent evidence supported the defendant's claim that the defendant would not be eligible for parole until the defendant served 30 years in prison; thus, trial counsel did not misinform the defendant as to the defendant's parole eligibility if the defendant rejected the plea deal, was convicted at trial, and was sentenced to life imprisonment. Byrd v. State, 344 Ga. App. 780, 811 S.E.2d 85 (2018).

RESEARCH REFERENCES

ALR.

- Validity, construction, and application of state statutes proscribing human trafficking, 101 A.L.R.6th 417.

Syfert Injury Law Firm

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