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.
(a) For the purposes of this Code section, the term ‘‘unborn child’’ means a member of the species homo sapiens at any stage of development who is carried in the womb.
(b) A person commits the offense of feticide if he or she willfully and without legal justification causes the death of an unborn child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, or if he or she, when in the commission of a felony, causes the death of an unborn child.
(c) A person convicted of the offense of feticide shall be punished by imprisonment for life.
(d) A person commits the offense of voluntary manslaughter of an unborn child when such person causes the death of an unborn child under circumstances which would otherwise be feticide and if such person acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; provided, however, that, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as feticide.
(e) A person convicted of the offense of voluntary manslaughter of an unborn child shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than 20 years.
(f ) Nothing in this Code section shall be construed to permit the prosecution of:
(1) Any person for conduct relating to an abortion for which the consent of the pregnant woman, or person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;
(2) Any person for any medical treatment of the pregnant woman or her unborn child; or
(3) Any woman with respect to her unborn child.
History
Code 1981, § 16-5-80, enacted by Ga. L. 1982, p. 2499, § 1; Ga. L. 2006, p. 643, § 2/SB 77.
Annotations
Editor’s notes. - Ga. L. 2006, p. 643, § 5/SB 77, not codified by the General Assembly, provides that the amendment by that Act shall apply to all offenses committed on or after July 1, 2006.
Law reviews. - For survey article on
criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 37 (2006). For note, ‘‘Incubating for the State: The Precarious Autonomy of Persistently Vegetative and Brain-Dead Pregnant Women,’’ see 22 Ga. L. Rev. 1103 (1988).
JUDICIAL DECISIONS Constitutionality. - O.C.G.A. § 16-5-80 informs all of what actions the state prohibits with sufficient definiteness that ordinary people can understand and thus is not unconstitutionally vague. Brinkley v. State, 253 Ga. 541, 322 S.E.2d 49 (1984). O.C.G.A. § 16-5-80 is not unconstitutionally vague, since the case law of Georgia has long adopted the common-law understanding of ‘‘quick’’: when the fetus is so far developed as to be capable of movement within the mother’s womb. Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987). O.C.G.A. § 16-5-80 is not unconstitutional either because there is no unlawful taking of a human life or because an unborn child is not a ‘‘person’’ within the meaning of the Fourteenth Amendment, a proposition that is simply immaterial in the present context to whether a state can prohibit the destruction of a fetus. Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987). O.C.G.A. § 16-5-80 does not violate equal protection by creating two classifications that are arbitrary and capricious; although O.C.G.A. § 16-12-140 punishes the offense of criminal abortion with imprisonment for not less than one year nor more than 10 years, while O.C.G.A. § 16-5-80 requires a life sentence, the distinction between the sentences required O.C.G.A. § 16-5-80 section and the abortion statute, O.C.G.A. § 16-12-140, is rationally related to legitimate governmental purposes. Smith v. Newsome, 815 F.2d 1386 (11th Cir. 1987). Government not required to develop exculpatory evidence for defense. - In a case in which defendant was convicted of murdering defendant’s girlfriend and an unborn child in violation
of 18 U.S.C. § 1111, O.C.G.A. § 16-5-80, incorporated by 18 U.S.C. § 13, and 18 U.S.C. § 924(c)(1) and (j), defendant’s argument that the defendant’s due process rights were violated because the case investigators intentionally and calculatingly refused to develop information which might implicate other suspects was without merit. The government was not required to develop exculpatory evidence for the defense. United States v. Natson, No. 07-11433, 2008 U.S. App. LEXIS 11228 (11th Cir. May 6, 2008) (Unpublished). Merger with aggravated assault. - Defendant’s convictions for aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) and feticide in violation of O.C.G.A. § 16-5-80(a) did not merge for sentencing purposes because the victim of the aggravated assault was the defendant’s girlfriend, while the victim of the feticide was the girlfriend’s unborn child; the merger doctrine does not apply if each of the charged crimes was committed against a different victim. Carmichael v. State, 305 Ga. App. 651, 700 S.E.2d 650 (2010). Evidence sufficient for conviction. - Evidence that the defendant, who threatened to kill the victim in the past, took the victim to a retention pond, shot the victim, wrapped the body with a large boulder, placed the victim in a retention pond, and, for days, misled the victim’s mother and authorities about the victim’s whereabouts was sufficient to support convictions for malice murder, felony murder, feticide, aggravated assault, and possession of a firearm. Platt v. State, 291 Ga. 631, 732 S.E.2d 75 (2012). Fleeing and alluding police as basis for feticide charge. - Evidence was
sufficient to support a finding that the appellant was a party to the act of fleeing and attempting to allude a police officer; consequently, since the evidence was sufficient for the jury to find the appellant guilty of the underlying felony on which the two felony murder counts were based, the element of fleeing and attempting to
allude a police officer as charged in the feticide count was also established. McNeely v. State, 296 Ga. 422, 768 S.E.2d 751 (2015). Cited in Billingsley v. State, 183 Ga. App. 850, 360 S.E.2d 451 (1987); Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008).
ARTICLE 7 STALKING
Law reviews. - For review of 1998 legislation relating to crimes and offenses, see 15 Ga. St. U. L. Rev. 62 (1998). For note, ‘‘Stalking the Stalker: Developing New Laws to Thwart Those Who Terrorize Others,’’ see 27 Ga. L. Rev. 285
(1992). For note on 1993 enactment of this article, see 10 Ga. St. U. L. Rev. 95 (1993). For comment, ‘‘Is Georgia’s Stalking Law Unconstitutionally Vague?,’’ see 45 Mercer L. Rev. 853 (1994).
Notes of Decisions
Cited in
33
cases (
1 in the last 5 years), 1983–2024 · leading case:
State v. Courchesne, 998 A.2d 1 (Conn. 2010).
State v. Courchesne, 998 A.2d 1 (Conn. 2010).
· cites it 3× “Ga. Code Ann. § 16-5-80 (2007) (treating killing of unborn fetus as “feticide”); La.”
McAuley v. Wills, 303 S.E.2d 258 (Ga. 1983).
· cites it 4× “§ 85-706) (protection of unborn's property interests); OCGA § 16-5-80 (Code Ann. § 26-1105) (crime of feticide); OCGA § 16-12-140 (Code Ann.”
State v. Jackson, 697 S.E.2d 757 (Ga. 2010).
· cites it 2× “”); § 16-5-80 (b) (“A person commits the offense of feticide it he or she willfully and without legal justification causes the death of an unborn child by any injury to the mother of such child.”
Jackson v. State, 430 S.E.2d 781 (Ga. Ct. App. 1993).
· cites it 8× “it shall be the duty of any law enforcement officer or other person having knowledge of such death to notify immediately the coroner or county medical examiner .”
Bradshaw v. State, 671 S.E.2d 485 (Ga. 2008).
· cites it 4× “A mandatory life sentence is the minimum sentence that may be imposed for the crimes of murder (OCGA § 16-5-1 (d)) and feticide (OCGA § 16-5-80 *681 (c)). Life imprisonment is the only punishment available for the crimes of hijacking an aircraft (OCGA § 16-5-44 (c)) and…”
State v. MacGuire, 2004 UT 4 (Utah 2004).
· cites it 2× “at 51, 53 (quoting Ga.Code Ann. § 16-5-80 (1982)). The court's conclusion that the state's feticide statute was not unconstitutionally vague was later followed by the Eleventh Circuit Court of Appeals.”
Brinkley v. State, 322 S.E.2d 49 (Ga. 1984).
· cites it 4× “They attack their convictions for feticide on the ground the code section, OCGA § 16-5-80, is constitutionally infirm due to vagueness.”
Washington v. State, 755 S.E.2d 160 (Ga. 2014).
· cites it 2× “Whether Washington was, in fact, the father of the unborn child, the prosecution urged that both Washington and Hardman believed him to be the father.”
Ward v. State, 417 S.E.2d 130 (Ga. 1992).
· cites it 2× “The offense of feticide is defined in OCGA § 16-5-80 (a) as *299 follows: A person commits the offense of feticide if he willfully kills an unborn child so far developed as to be ordinarily called “quick” by any injury to the mother of such child, which would be murder if it…”
People v. Davis, 872 P.2d 591 (Cal. 1994).
· cites it 2× “09 ; Ga. Code Ann. § 16-5-80 ; Mich. Comp. Laws Ann.”
Carmichael v. State, 700 S.E.2d 650 (Ga. Ct. App. 2010).
· cites it 4× “” OCGA § 16-5-80 (a) (2005).-“Quickening” is the stage of fetal development “when the fetus has developed to the point of being capable of movement within the mother’s womb.”
McNeely v. State, 768 S.E.2d 751 (Ga. 2015).
· cites it 2× “” Appellant was also convicted of feticide, OCGA § 16-5-80, for willfully killing an unborn child in the manner set forth in the statute “while in the commission of the felony of Fleeing and Attempting to Elude a Police Officer .”
Harper v. State, 417 S.E.2d 435 (Ga. Ct. App. 1992).
· cites it 4× “While we must concede that the decisions on this issue do not seem to be joined by any consistent thread of logic, the fact remains that armed robbery continues to be classified under statutory law as a capital offense, and it is clearly within the province of the legislature to…”
State v. Luster, 419 S.E.2d 32 (Ga. Ct. App. 1992).
· cites it 2× “, OCGA § 16-5-80 (feticide). Although it is true, as asserted by the State, that Tiffany eventually became a “living, breathing person” when she was born, at the time any transfer of cocaine metabolites could have taken place from Luster upon which an indictment could be based,…”
Larry Gene Heath v. Charlie Jones, Warden, 941 F.2d 1126 (11th Cir. 1991).
“See Ga.Code Ann. § 16-5-80. . For example, one editorial actually came out against the Alabama prosecution because the paper thought it violated the double jeopardy clause and basic principles of fairness.”
Gillespie v. State, 633 S.E.2d 632 (Ga. Ct. App. 2006).
· cites it 4× “2d 555 (2000); OCGA § 16-5-80. [7] Citron, supra at 828 , 542 S.”
Billingsley v. State, 360 S.E.2d 451 (Ga. Ct. App. 1987).
· cites it 2× “This interpretation is supported by the fact that the legislature re-enacted a feticide statute in 1982 (OCGA § 16-5-80, Ga. L. 1982, p. 2499, § 1), a course of action which would have been unnecessary had unborn children been considered persons within the meaning of our…”
United States v. Natson, 444 F. Supp. 2d 1296 (M.D. Ga. 2006).
· cites it 2× “§ 1111 , Feti-cide (Count Two), O.C.G.A. § 16-5-80, 18 *1299 U.S.C. §§ 7(3) and 13, and Use of a Firearm During a Crime of Violence (Count Three), 18 U.”
State v. Lamy, 969 A.2d 451 (N.H. 2009).
“09 (LexisNexis 2008); Ga. Code Ann. § 16-5-80 (2007); 720 Ill. Comp.”
State v. Hammett, 384 S.E.2d 220 (Ga. Ct. App. 1989).
· cites it 2× “It is thus apparent that it is not the victim’s status at the time the injuries are inflicted that determines the nature of the crime (murder or vehicular homicide, as opposed to feticide, see OCGA § 16-5-80), but the victim’s status at the time of death which is the…”
Pineda v. State, 706 S.E.2d 407 (Ga. 2011).
· cites it 2× “See OCGA § 16-5-80. See also Ranger, supra. 3 This interpreter also had the last name of Pineda.”
Ankrom v. State, 152 So. 3d 397 (Ala. 2013).
“§§ 13-1102(A), (B) (negligent homicide), 13-1103(A)(5), (B) (manslaughter), 13-1104(A), (B) (second-degree murder), 13-1105(A)(1), (C) (first-degree murder) (2010); Ga.Code Ann. §§ 16-5-80 (feticide), 40-6-393.”
Breyne v. Potter, 574 S.E.2d 916 (Ga. Ct. App. 2002).
· cites it 2× “OCGA § 16-5-80 defines the offense of feticide as wilfully killing “an unborn child so far developed as to be ordinarily called ‘quick’ by any injury to the mother , of such child, which would be murder if it resulted in the death of such mother.”
Kempson v. State, 602 S.E.2d 587 (Ga. 2004).
· cites it 2× “The notice of appeal was filed on December 4, 2003. The appeal was docketed on December 19, 2003, and submitted for decision on briefs.”
McCarty v. State, 2002 OK CR 4 (Okla. Crim. App. 2002).
· cites it 2× “09; Ga.Code Ann. § 16-5-80; Mich.Comp.Laws Ann.”
Citron v. Ghaffari, 542 S.E.2d 555 (Ga. Ct. App. 2000).
· cites it 2× “In addressing the death of a child prior to birth, Georgia has historically adhered to the concept of “quickening.”
Castro v. Melchor, 366 P.3d 1058 (Haw. App. 2016).
“, Ga.Code Ann. § 16-5-80 (Westlaw 2015) (defining the crimes of "feticide” and "voluntary manslaughter of an unborn child”); 18 Pa.”
Washington v. State, 755 S.E.2d 160 (Ga. 2014).
· cites it 2× “Whether Washington was, in fact, the father of the unborn child, the prosecution urged that both Washington and Hardman believed him to be the father.”
Hill v. State, 664 S.E.2d 781 (Ga. Ct. App. 2008).
· cites it 8× “” 12 As an example of a Georgia criminal statute that by specific language includes fetuses or unborn children within its contemplation, Luster cited our feticide statute, OCGA § 16-5-80 (a). When Luster was decided, that statute provided, “A person commits the offense of…”
Joseph Newton v. State (Ga. Ct. App. 2024).
· cites it 2× “” The court then tracked the language of OCGA § 16-5-80 (b) in giving the jury the following definition of the crime of feticide: “A person commits the offense of feticide if he willfully and without legal justification causes the death of an unborn child by any injury to the…”
Washington v. State (Ga. 2014).
· cites it 2× “See OCGA § 16-5-80. 3 At trial, Washington testified, and he admitted that he knew in December 2008 that he might be the father of the unborn child.”
McNeely v. State (Ga. 2015).
· cites it 2× “” Appellant was also convicted of feticide, OCGA § 16-5-80, for willfully 7 killing an unborn child in the manner set forth in the statute “while in the commission of the felony of Fleeing and Attempting to Elude a Police Officer .”
— 16-5-80(b) — 1 case
State v. Jackson, 697 S.E.2d 757 (Ga. 2010).
“”); § 16-5-80 (b) (“A person commits the offense of feticide it he or she willfully and without legal justification causes the death of an unborn child by any injury to the mother of such child.”
— 16-5-80(c) — 1 case
Bradshaw v. State, 671 S.E.2d 485 (Ga. 2008).
“A mandatory life sentence is the minimum sentence that may be imposed for the crimes of murder (OCGA § 16-5-1 (d)) and feticide (OCGA § 16-5-80 *681 (c)). Life imprisonment is the only punishment available for the crimes of hijacking an aircraft (OCGA § 16-5-44 (c)) and…”
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.