16-12-100.3. Obscene telephone contact; conviction; penalties.

As used in this Code section, the terms “sexual conduct,” “sexual excitement,” and “sadomasochistic abuse” have the same meanings as provided for those terms in Code Section 16-12-100.1, relating to electronically furnishing obscene materials to minors; the term “sexually explicit nudity” has the same meaning as provided for that term in Code Section 16-12-102, relating to distributing harmful materials to minors; and the term “child” means a person under 14 years of age.#

A person 17 years of age or over commits the offense of obscene telephone contact with a child if that person has telephone contact with an individual whom that person knows or should have known is a child, and that contact involves any aural matter containing explicit verbal descriptions or narrative accounts of sexually explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse which is intended to arouse or satisfy the sexual desire of either the child or the person, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.#

1. (1)

   Except as otherwise provided in other paragraphs of this subsection, a person convicted of the offense of obscene telephone contact with a child shall be guilty of a misdemeanor of a high and aggravated nature.#

2. (2)

   Upon the first conviction of the offense of obscene telephone contact with a child:#

   1. (A)

      If the person convicted is less than 21 years of age, such person shall be guilty of a misdemeanor; or#

   2. (B)

      The judge may probate the sentence without regard to the age of the convicted person, and such probation may be upon the special condition that the defendant undergo a mandatory period of counseling administered by a licensed psychiatrist or a licensed psychologist. However, if the judge finds that such probation should not be imposed, the judge shall sentence the defendant to imprisonment; provided, further, that upon a defendant’s being incarcerated on a conviction for such first offense, the place of incarceration shall provide counseling to such defendant.#

3. (3)

   Upon a second or subsequent conviction of such offense, the defendant shall be guilty of a felony and punished by imprisonment for not less than one nor more than five years.#