"In custody" construed.

- When a probationer was free to go about the probationer's normal activities subject to a court imposed curfew and the probationer's refraining from any illegal acts, the probationer was not a person "in custody" or "in the custody of the law," as contemplated by O.C.G.A. § 16-6-5.1. Palmer v. State, 260 Ga. 330, 393 S.E.2d 251 (1990) (decided prior to 1991 amendment).

"Probation officer" defined.

- Indictment stating that defendant was a "Surveillance Officer working for a county probation office" who had "supervisory and disciplinary authority" over a probationer is sufficient to allege that defendant was a "probation officer" within the meaning of O.C.G.A. § 16-6-5.1. Belvin v. State, 221 Ga. App. 114, 470 S.E.2d 497 (1996).

"In school."

- The 1990 Act amending subsection (b) to include a person "who is enrolled in a school" in the class of victims did not violate O.C.G.A. § 16-6-5.1. Randolph v. State, 269 Ga. 147, 496 S.E.2d 258 (1998).

Supervisory or disciplinary authority means that the teacher had the power either to direct the student in question, to require the student to comply with some form of directive, whether it be a school rule or an instruction from the defendant, or to take disciplinary action against the student for failure to comply with such a directive. Morrow v. State, 335 Ga. App. 73, 778 S.E.2d 848 (2015).

Conduct of school officials.

- O.C.G.A. § 16-6-5.1 was not void for vagueness as applied to an assistant principal of a high school charged with engaging in sexual contact with a student. Randolph v. State, 269 Ga. 147, 496 S.E.2d 258 (1998).

Must show direct authority over victim.

- Showing that all teachers at a school, including the accused, have some kind of general authority over students in the school is insufficient to demonstrate the supervisory or disciplinary authority required to convict a defendant under O.C.G.A. § 16-6-5.1; rather, the statute requires the state to prove that defendant had some kind of direct disciplinary or supervisory authority over the victim. Morrow v. State, 335 Ga. App. 73, 778 S.E.2d 848 (2015).

Indictment dismissed where defendant was not administrator at school.

- Trial court did not err in dismissing the indictment against the defendant charging the defendant with six counts of sexual assault against a person in custody based on the defendant's sexual contact with three students at the high school where the defendant was employed because the defendant's job as a secretary at the school was strictly clerical in nature and did not fall within the definition of an administrator. State v. Hammonds, 325 Ga. App. 815, 755 S.E.2d 214 (2014).

Indictment dismissed where defendant was mere employee or agent of school.

- Trial court did not err in dismissing the indictment against the defendant charging the defendant with six counts of sexual assault against a person in custody based on the defendant's sexual contact with three male students at the high school where the defendant was employed because the classification of individuals who may be prosecuted in the education setting is limited to teachers, principals, assistant principals, or other administrators of the school, and a mere employee or agent of the school, such as the defendant, is not subject to prosecution. State v. Hammonds, 325 Ga. App. 815, 755 S.E.2d 214 (2014).

Indictment dismissed where defendant had no supervisory or disciplinary authority.

- Trial court did not err in dismissing the indictment against the defendant charging the defendant with six counts of sexual assault against a person in custody based on the defendant's sexual contact with three male students at the high school where the defendant was employed because, even if the defendant could be considered a teacher by virtue of the defendant's position as an assistant cheerleading coach, any supervisory or disciplinary responsibilities the defendant might have had would have been confined to the members of the junior varsity cheerleading team of which the three male students were not members. State v. Hammonds, 325 Ga. App. 815, 755 S.E.2d 214 (2014).

Although there was sufficient evidence presented to show that the defendant, a paraprofessional assigned to a special needs student, had supervisory or disciplinary authority over the victim as required to prove a violation of O.C.G.A. § 16-6-5.1(b), the state admitted that the defendant was not a teacher and failed to prove that the defendant was a person to whom paragraph (b)(1) applied requiring reversal of the conviction of sexual assault. State v. Morrow, 300 Ga. 403, 794 S.E.2d 37 (2016).

Defendant's conviction for the sexual assault of a 16-year-old student was properly reversed because the term "teacher" in the sexual assault statute did not mean a paraprofessional such as the defendant; the defendant did not do the sorts of things that teachers typically do as the defendant did not assign class work, homework or any other tasks, give lectures, teach lessons, grade work, administer tests, attend faculty meetings, or report to school on teacher workdays; the defendant did not devote any meaningful portion of the defendant's time to the instruction of students; and the defendant was legally proscribed from being employed as a teacher at a public school as the defendant did not have a teaching certificate. State v. Morrow, 300 Ga. 403, 794 S.E.2d 37 (2016).

Trial court erred by denying petition for release from conduct of clergyman in Texas and requirement to register in Georgia.

- Trial court erred by denying a defendant's petition for release from the requirement that the defendant register as a sexual offender, pursuant to O.C.G.A. § 42-1-12, since the defendant's Texas conviction involving the use of the defendant's position as a clergyman to sexually assault two victims was not similar enough to any Georgia criminal statute that would have found the defendant to have been convicted of committing a dangerous sexual offense as that term was defined in § 42-1-12(a)(10)(A). Sharma v. State, 294 Ga. App. 783, 670 S.E.2d 494 (2008).

Coerced statement.

- In a prosecution under both O.C.G.A. §§ 16-6-5.1 and16-10-1, the trial court properly suppressed the oral and written statements made by the defendant, a public employee, during an internal investigation interview conducted by the Georgia Department of Corrections, and after the defendant was forbidden to seek the advice of counsel, as the defendant had an objective belief that a failure to cooperate with the investigation by taking part in the interview and signing a written document entitled "Notice of Interfering with On-Going Internal Investigation" would result in a loss of employment; thus, the defendant's right against self-incrimination was violated. State v. Aiken, 281 Ga. App. 415, 636 S.E.2d 156 (2006).

Evidence sufficient for conviction.

- Defendant's conviction of sexual assault against a person in custody, O.C.G.A. § 16-6-5.1(c)(1)(A), was supported by sufficient evidence, because the evidence showed that the defendant used the defendant's position as a police officer to induce the victim to have sex with the defendant, and consent of the victim was not a defense to prosecution, O.C.G.A. § 16-6-5.1(c)(3). Furthermore, although the trial court erred in admitting hearsay evidence pursuant to former O.C.G.A. § 24-3-1 (see now O.C.G.A. § 24-8-802) to explain a detective's conduct in investigating the case, it was highly probable that the testimony did not contribute to the verdict. Krauss v. State, 263 Ga. App. 488, 588 S.E.2d 239 (2003).

Because the defendant, as a respiratory therapist, assessed the patients, decided what treatments would be used per certain protocols, and directed the patients while the treatments were performed, the defendant had the requisite supervisory authority over the patients the defendant treated sufficient to sustain the defendant's convictions for sexual assault against a patient in a hospital while the defendant had supervisory authority over the victims. Ellis v. State, 324 Ga. App. 497, 751 S.E.2d 129 (2013).

Assault of counseling client.

- When defendant appealed defendant's conviction on multiple counts of violating O.C.G.A. §§ 16-6-3,16-6-4,16-6-5, and16-6-5.1, defendant unsuccessfully argued that the trial court erred in admitting two similar transactions. As to the first similar transaction, defendant induced any alleged error in that defendant's own counsel was the first to elicit the testimony of that transaction, and as to the second transaction, the trial court did not clearly err in finding that, because it involved a sexual act by defendant in defendant's counseling office with a female whom defendant was counseling, it was sufficiently similar to one of the crimes at issue which alleged a sexual act by defendant in defendant's counseling office with a female. Evans v. State, 300 Ga. App. 180, 684 S.E.2d 311 (2009), cert. denied, No. S10C0215, 2010 Ga. LEXIS 304 (Ga. 2010).

Consent of victim a defense when victim has reached the age of consent.

- Because a student had reached the age of consent, the trial court erred in preventing defendant from presenting a consent defense at trial to a charge of sexual assault of a person enrolled in school under O.C.G.A. § 16-6-5.1(b). Chase v. State, 285 Ga. 693, 681 S.E.2d 116 (2009).

Conviction reversed for failing to show any direct authority over victim.

- Defendant's conviction under O.C.G.A. § 16-6-5.1(b)(1) was reversed as the state offered no evidence to show that the defendant had any kind of direct authority over the victim, either as a paraprofessional/teacher or as a wrestling coach; there was no evidence showing that the defendant had the authority to give directives to the victim, to enforce school rules against the victim, or even to refer the victim to administrators for discipline. Morrow v. State, 335 Ga. App. 73, 778 S.E.2d 848 (2015).

Jury instruction only on supervisory authority appropriate.

- Because the defendant was only indicted for sexual assault against a patient in a hospital for engaging in sexual contact while the victims were patients in the hospital and while the defendant had supervisory authority over the victims, and the defendant was not charged with having disciplinary authority over the victims, the trial court did not err in the court's charge by providing the jury with only the definition of supervisory authority. Ellis v. State, 324 Ga. App. 497, 751 S.E.2d 129 (2013).

Cited in State v. Eastwood, 243 Ga. App. 822, 535 S.E.2d 246 (2000); Hammond v. Gordon County, 316 F. Supp. 2d 1262 (N.D. Ga. 2002).

ALR.

- Sufficiency of allegations or evidence of serious bodily injury to support charge of aggravated degree of rape, sodomy, or other sexual abuse, 103 A.L.R.6th 507.

Construction and application of 18 U.S.C.A. § 2242(2), proscribing sexual abuse of person incapable of appraising nature of conduct, declining participation, or communicating unwillingness to participate in sexual act, 83 A.L.R. Fed. 2d 1.