House Bill 1213 Summary and Analysis¹

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Origins Of HB 1213

House Bill 1213 ("HB 1213") was introduced by Representative May (R- 111^th ) on February 14^th in the Georgia 2008 General Assembly Legislative Session. The proposed bill is a further refinement of earlier revisions of the Georgia statute criminalizing incest, effective July 1, 2006, which replaced references to the perpetrator as "he" with "person" and "he or she" and increased the sentencing range from 1-20 years to 10-30 years.²

Legislative Purpose

The proposed bill, if enacted, would modify the incest statute, Chapter 6 of Title 16 of the Official Code of Georgia Annotated (O.C.G.A. § 16-6-22), to neutralize gender references and to expand the sex acts which are included in the definition of incest.

The original version of this statute, drafted in 1933, assumed that the only incestuous perpetrator would be a male, and that the relationship would inherently be coercive and not consensual because males were presumed to exert influence over all females in the family. Removal of gender labels in reference to the perpetrator was one step, but the last revision left a loophole remaining in the law. Currently, same-sex relations are not chargeable under the incest statute, regardless of the relationship of the perpetrator and victim.

Incest is traditionally thought of as a wrongful act more harmful than sexual molestation of a child by an unrelated perpetrator, because the family unit is generally considered a realm where trust may be implicit. A violation of that trust therefore creates a greater harm to the victim than perhaps the same actions perpetrated by a non-relative would. The proposed revisions would recognize that violation regardless of the gender the victim or perpetrator.

Summary and Explanation of the Proposed Changes

HB 1213 amends O.C.G.A. § 16-6-22 to allow a wider range of sexual acts to be considered incest. It specifically:

1. Includes any sexual penetration between specified family members in the crime of incest.
   1. Currently, O.C.G.A. § 16-6-22 only applies in cases of sexual intercourse, defined as genital-to-genital penetration between a male and a female. Sex acts outside of this definition are not covered by the statute.
   2. HB 1213 replaces the term "sexual intercourse" with "a sexual penetration" allowing for prosecution of incestuous relations which do not include sexual intercourse.
   3. The state has an interest in protecting children from harm inflicted by improper relations and exposure to sexual activity, regardless of the form the sexual acts take.
2. Eliminates specific gender relationships of victims to perpetrators.
   1. Currently, O.C.G.A. § 16-6-22 does not recognize incest when the victim and the perpetrator are of the same gender. The current version of the statute specifies the relationships that are criminal, specifically naming father and daughter or stepdaughter; mother and son or stepson; brother and sister; grandparent and grandchild; aunt and nephew; or uncle and niece.
   2. HB 1213 would allow prosecution of incestuous acts regardless of the gender of the victim or perpetrator. The proposed language change would remove gender-specific relationship labels pertaining to the victim. "Father and daughter or stepdaughter" would become "father and child or stepchild"; "Brother and Sister" would become "Sibling and sibling"; "Aunt and nephew" would become "Aunt and niece or nephew."
   3. Neutralizing the gender specifics in this statute would protect more victims of incest than the current version does.
3. Allows for equitable prosecution regardless of gender of victim.
   1. Currently, O.C.G.A. § 16-6-22 does not apply, for example, to incestuous relations between two males. In this circumstance, a defendant could only be charged under O.C.G.A. § 16-6-3 Statutory Rape or O.C.G.A. § 16-6-4 Aggravated Child Molestation, depending upon the individual facts of the specific case. Thus, a defendant having incestuous relations with both a female and a male relative would have to be charged with two different crimes. This defendant could be charged with incest for relations with the opposite-gender relative, but could not be charged with incest for relations with the same-gender relative.
   2. HB 1213 would prevent an arbitrary application of criminal law based on the gender of the victim. For example, as long as more than one separate occurrence of the crime occurred, a defendant can be charged with both incest and rape. These crimes have separate elements pertaining to each of them which make them distinct. Rape requires proof of force, for instance, and incest requires a defined familial relation. Without those elements, each crime is not shown. The Georgia Court of Appeals has upheld dual convictions based on precisely this scenario. A man was convicted of raping his adoptive daughter for one occasion, and for committing incest upon her for a second occasion.³
4. Allows for equitable charging and sentencing regardless of gender of victim.
   1. Currently, O.C.G.A. § 16-6-22 allows for imprisonment of 10-30 years, or 25-50 years if the victim is under the age of 14, for convictions under the incest statute. A defendant having incestuous relations with a relative of the same gender could be charged under O.C.G.A. § 16-6-3 (Statutory Rape) or O.C.G.A. § 16-6-4 (Aggravated Child Molestation). Both of these provide an age exception for situations in which the victim is 14-16 years old and the defendant is less than four years older. Outside of these age exceptions, the sentencing guidelines vary. This could lead to disparate charges and sentencing for the same crime, based on the gender of the victim.
      1. Under O.C.G.A. § 16-6-3 (Statutory Rape), for example, a defendant over 21 years of age could be sentenced to 10-20 years.
      2. Under O.C.G.A. § 16-6-4 (Aggravated Child Molestation), the same defendant could be sentenced to 5-20 years for a first offense and 10-30 years for second and subsequent offenses.
   2. HB 1213 would allow for similar sentencing for similar intra-family crimes, preventing different sentencing based on the gender of the victim.

Conclusion

This bill is well-drafted and protects children. Sexual contact between relatives is harmful to children regardless of gender or type of contact. Georgia's current law does not adequately protect children victimized by a relative of the same gender. The Barton Child Law and Policy Clinic supports the passage of HB 1213.

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1 March 11, 2008 by Megan Pulsts, Student Attorney, Emory University School of Law Class of 2009.

2 GA Legis. 571 (2006), HB 1059, effective July 1, 2006.

3 See Kirby v. State, 187 Ga.App. 88 (1988).

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