HB1458: HB1458 Crimes and offenses; permit clergy members to be charged with certain improper sexual contact offenses

26 LC 62 0441 House Bill 1458 By: Representatives Smith of the 18th, Hong of the 103rd, Gunter of the 8th, and Reeves of the 99th A BILL TO BE ENTITLED AN ACT To amend Chapter 6 of Title 16 of the Official Code of Georgia Annotated, relating to sexual1 offenses, so as to permit clergy members to be charged with certain improper sexual contact2 offenses; to provide for definitions; to provide for related matters; to repeal conflicting laws;3 and for other purposes.4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:5 SECTION 1.6 Chapter 6 of Title 16 of the Official Code of Georgia Annotated, relating to sexual offenses,7 is amended by revising Code Section 16-6-5.1, relating to impro per sexual contact by8 employee, agent, or foster parent, consent not a defense, and penalty, as follows:9 "16-6-5.1.10 (a) As used in this Code section, the term:11 (1) 'Agent' means an individual authorized to act on behalf of another, with or without12 compensation.13 (1.1) 'Child-placing agency' shall have the same meaning as se t forth in Code14 Section 49-5-3.15 H. B. 1458 - 1 - 26 LC 62 0441 (2) 'Child welfare and youth services' shall have the same meaning as set forth in Code16 Section 49-5-3.17 (2.1) 'Clergy member' means any person, whether licensed or unlicensed, who represents18 himself or herself as a minister, pastor, priest, rabbi, imam, or other spiritual leader of an19 organization claiming to be a faith based organization in this state or any other state, or20 any person who provides or purports to provide spiritual guidance, pastoral counseling,21 religious instruction, or spiritual direction to another person in a relationship of trust,22 confidence, or dependency.23 (3) 'Disability' shall have the same meaning as set forth in Code Section 37-1-1.24 (4) 'Employee' means an individual who works for salary, wages, or other remuneration25 for an employer or sole proprietor.26 (4.1) 'Foster care home' means a private home used by a child-placing agency which has27 been approved by the child-placing agency to provide 24 hour care, lodging, supervision,28 and maintenance for one or more children or a private home whic h has been approved29 and is directly supervised by the Department of Human Services to provide 24 hour care,30 lodging, supervision, and maintenance for one or more children.31 (4.2) 'Foster parent' means the person or persons who provide care, lodging, supervision,32 and maintenance for one or more children in a foster care home used by a child-placing33 agency or in a foster care home approved and directly supervised by the Department of34 Human Services.35 (5) 'Intimate parts' means the genital area, groin, inner thighs, buttocks, or breasts of a36 person.37 (5.1) 'Pastoral counseling or spiritual authority relationship ' means a relationship in38 which a clergy member provides spiritual guidance, pastoral care, religious instruction,39 confession, mentoring, or emotional or spiritual support in cir cumstances where a40 reasonable person would view the clergy member as exercising in fluence, trust, or41 authority over another person's spiritual, emotional, or personal well-being.42 H. B. 1458 - 2 - 26 LC 62 0441 (5.2) 'Person in a position of trust' means an individual with whom a parent, guardian,43 or other person standing in loco parentis of a minor has entere d into an agreement44 entrusting such individual with the responsibility of education and supervision of such45 minor; provided, however, that no such status shall exist when the terms of the agreement46 have been satisfied or terminated and the minor is no longer under the supervision of such47 individual.48 (6) 'Psychotherapy' means the professional treatment or counse ling of a mental or49 emotional illness, symptom, or condition.50 (7) 'School' means any educational institution, public or private, providing elementary51 or secondary education to children at any level, kindergarten t hrough twelfth grade, or52 the equivalent thereof if grade divisions are not used, including extracurricular programs53 of such institution.54 (8) 'Sensitive care facility' means any facility licensed or required to be licensed under55 Code Section 31-7-3, 31-7-12, or 31-7-12.2 or who is required to be licensed pursuant to56 Code Section 31-7-151 or 31-7-173.57 (9) 'Sexual contact' means any contact involving the intimate parts of either person for58 the purpose of sexual gratification of either person.59 (10) 'Sexually explicit conduct' shall have the same meaning a s set forth in Code60 Section 16-12-100.61 (11) 'Sole proprietor' means an individual who is an owner or operator of a program or62 facility rendering services or housing to another as a conditio n of such other person's63 probation or parole.64 (b) An employee, clergy member, or agent commits the offense of improper sexual contact65 by employee or agent in the first degree when such employee, cl ergy member, or agent66 knowingly engages in sexually explicit conduct with another person whom such employee,67 clergy member, or agent knows or reasonably should have known is contemporaneously:68 H. B. 1458 - 3 - 26 LC 62 0441 (1) Enrolled as a student at a school of which he or she is an employee, clergy member,69 or agent;70 (2) Under probation, parole, a program or within a facility as a condition of probation or71 parole, accountability court, or pretrial diversion supervision of the office or court of72 which he or she is an employee, clergy member, or agent;73 (3) Being detained by or is in the custody of any law enforcement agency of which he74 or she is an employee, clergy member, or agent;75 (4) A patient in or at a hospital of which he or she is an emp loyee, clergy member, or76 agent;77 (5) In the custody of a correctional facility, juvenile detention facility, facility providing78 services to a person with a disability, or a facility providing child welfare and youth79 services of which he or she is an employee, clergy member, or agent;80 (6) The subject of such employee employee's, clergy member's, or agent's actual or81 purported psychotherapy treatment or counseling; or82 (7) Admitted for care at a sensitive care facility of which he or she is an employee,83 clergy member, or agent; or84 (8) The subject of a clergy member's pastoral counseling or sp iritual authority85 relationship.86 (b.1) A person commits the offense of improper sexual contact by a foster parent in the87 first degree when he or she is a foster parent and knowingly engages in sexually explicit88 conduct with his or her current foster child.89 (b.2) A person commits the offense of improper sexual contact by a person in a position90 of trust in the first degree when a person in a position of trust engages in sexually explicit91 conduct with a minor for whom he or she has entered into an agreement entrusting him or92 her with the responsibility of education and supervision of such minor.93 (c) A person commits the offense of improper sexual contact by employee, clergy member,94 or agent in the second degree when such employee, clergy member , or agent knowingly95 H. B. 1458 - 4 - 26 LC 62 0441 engages in sexual contact, excluding sexually explicit conduct, with another person whom96 such employee, clergy member, or agent knows or reasonably should have known is97 contemporaneously:98 (1) Enrolled as a student at a school of which he or she is an employee, clergy member,99 or agent;100 (2) Under probation, parole, a program or within a facility as a condition of probation or101 parole, accountability court, or pretrial diversion supervision of the office or court of102 which he or she is an employee, clergy member, or agent;103 (3) Being detained by or is in the custody of a law enforcement agency of which he or104 she is an employee, clergy member, or agent;105 (4) A patient in or at a hospital of which he or she is an emp loyee, clergy member, or106 agent;107 (5) In the custody of a correctional facility, juvenile detention facility, facility providing108 services to a person with a d isability, or facility providing c hild welfare and youth109 services of which he or she is an employee, clergy member, or agent;110 (6) The subject of such employee employee's, clergy member's, or agent's actual or111 purported psychotherapy treatment or counseling; or112 (7) Admitted for care at a sensitive care facility of which he or she is an employee,113 clergy member, or agent; or114 (8) The subject of such clergy member's pastoral counseling or spiritual authority115 relationship.116 (c.1) A person commits the offense of improper sexual contact by a foster parent in the117 second degree when he or she is a foster parent and knowingly engages in sexual contact,118 excluding sexually explicit conduct, with his or her current foster child.119 (c.2) A person commits the offense of improper sexual contact by a person in a position120 of trust in the second degree when a person in a position of trust engages in sexual contact,121 excluding sexually explicit conduct, with a minor for whom he or she has entered into an122 H. B. 1458 - 5 - 26 LC 62 0441 agreement entrusting him or her with the responsibility of educ ation and supervision of123 such minor.124 (d) Consent of the victim shall not be a defense to a prosecution under this Code section.125 (e)(1) This Code section shall not apply to sexually explicit conduct or sexual contact126 between individuals lawfully married to each other.127 (2) This Code section shall not apply to a student who is enrolled at the same school as128 the victim.129 (f) A person convicted of improper sexual contact by employee, clergy member, or agent130 in the first degree, improper sexual contact by a person in a p osition of trust in the first131 degree, or improper sexual contact by a foster parent in the first degree shall be punished132 by imprisonment for not less than one nor more than 25 years and by a fine not to exceed133 $100,000.00; provided, however, that:134 (1) Except as provided in paragraph (2) of this subsection, any person convicted of the135 offense of improper sexual contact by employee, clergy member, or agent, improper136 sexual contact by a person in a position of trust in the first degree, or improper sexual137 contact by a foster parent with a child under the age of 16 yea rs shall be punished by138 imprisonment for not less than ten nor more than 30 years and a fine not to exceed139 $100,000.00 and shall, in addition, be subject to the sentencin g and punishment140 provisions of Code Section 17-10-6.2; and141 (2)(A) If at the time of the offense the victim of the offense is at least 14 years of age142 but less than 21 years of age and the person is 21 years of age or younger and is no143 more than 48 months older than the victim, such person shall be guilty of a144 misdemeanor and shall not be subject to the sentencing and punishment provisions of145 Code Section 17-10-6.2.146 (B) If at the time of the offense the victim of the offense is under the age of 16 and the147 act physically injures the victim or involves an act of sodomy, the offense shall be148 punished by imprisonment for not less than 25 nor more than 50 years and a fine not149 H. B. 1458 - 6 - 26 LC 62 0441 to exceed $100,000.00 and shall, in addition, be subject to the sentencing and150 punishment provisions of Code Section 17-10-6.2.151 (g) A person convicted of improper sexual contact by employee, clergy member, or agent152 in the second degree, improper sexual contact by a person in a position of trust in the153 second degree, or improper sexual contact by a foster parent in the second degree shall be154 punished as for a misdemeanor of a high and aggravated nature and shall not be subject to155 the sentencing and punishment provisions of Code Section 17-10-6.2; provided, however,156 that:157 (1) Except as provided in paragraphs (2) and (3) of this subsection, any person convicted158 of the offense of improper sexual contact by employee, clergy member, or agent in the159 second degree, improper sexual contact by a person in a positio n of trust in the second160 degree, or improper sexual contact by a foster parent in the se cond degree with a child161 under the age of 16 years shall be punished by imprisonment for not less than five nor162 more than 25 years and by a fine not to exceed $25,000.00 and s hall, in addition, be163 subject to the sentencing and punishment provisions of Code Section 17-10-6.2;164 (2) If at the time of the offense the victim of the offense is at least 14 years of age but165 less than 21 years of age and the person is 21 years of age or younger and is no more than166 48 months older than the victim, such person shall be guilty of a misdemeanor and shall167 not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2;168 and169 (3) Except as provided in paragraph (2) of this subsection, upon a second or subsequent170 conviction of the offense of improper sexual contact by employe e, clergy member, or171 agent in the second degree, improper sexual contact by a person in a position of trust in172 the second degree, or improper sexual contact by a foster parent in the second degree, the173 person shall be guilty of a felony and shall be punished by imprisonment for not less than174 one year nor more than five years and shall be subject to the sentencing and punishment175 provisions of Code Section 17-10-6.2.176 H. B. 1458 - 7 - 26 LC 62 0441 (h)(1) As used in this subsection, the term 'sexual felony' shall have the same meaning177 as set forth in paragraph (2) of subsection (j) of Code Section 16-5-21.178 (2) Except as provided in paragraph (3) of subsection (g) of t his Code section, any179 person having been previously convicted of a sexual felony who is convicted of the180 felony offense of improper sexual contact by employee, clergy member, agent, or foster181 parent in the first or second degree, shall be punished by imprisonment for life or a split182 sentence that is a term of imprisonment followed by probation f or life. As a condition183 of probation, the court shall impose the requirement of electronic monitoring as set forth184 in paragraph (14) of subsection (a) of Code Section 42-8-35."185 SECTION 2.186 All laws and parts of laws in conflict with this Act are repealed.187 H. B. 1458 - 8 -