Senate Bill 481 Summary & Analysis¹

Origins of the Bill

Senate Bill 481 ("SB 481") was introduced during the 2008 Georgia Assembly Legislative Session on February 20, 2008, by Senator Emanuel Jones. The bill is the second piece of legislation that has been proposed by Senator Jones in reaction to the plight of Genarlow Wilson.² Wilson engaged in consensual oral sex with a classmate and as a result was convicted of a felony and received a mandatory ten-year sentence. During the course of Wilson's trial, District Attorney David McDade released copies of a video showing Wilson, then 17, receiving oral sex from a 15-year-old girl and then having intercourse with another 17-year-old girl. McDade released the video after receiving an open records request from the Associated Press and gave the video to about three-dozen people, including reporters, lawmakers and several members of the public who requested it.

Legislative Purpose

The proposed bill, if enacted, would amend Chapter 12 of Title 16 and Chapter 18 of Title 50 of the Official Code of Georgia Annotated ("O.C.G.A") regarding offenses related to minors generally and inspection of public records so as to restrict access to evidence of violations of Code sections §§ 16-12-100 (sexual exploitation of children), 16-12-100.1 (electronically furnishing obscene materials to minors), and 16-12-100.2 (computer or electronic pornography) which depict a minor or any portion of a minor's body engaging in sexually explicit conduct. The bill was specifically drafted to block district attorneys from releasing photographic images of minors in sex cases to persons not directly involved in the case.

Summary and Explanation of Proposed Changes

SB 481 would limit access to evidence of violations of code §§ 16-12-100, 16-12-100.1, and 16-12-100.2 which depict a minor or any portion of a minor's body engaging in sexually explicit conduct to only those persons involved in the specific case at hand. Currently, Georgia law prohibits creating, reproducing, possessing, giving, exhibiting and distributing any visual medium depicting minors engaging in sexually explicit conduct. SB 481 represents an expansion of the current protections for child victims of sexual exploitation in that it further limits access to the exploitative material. Specifically, SB 481 proposes to amend O.C.G.A §§ 16-12-100, 50-18-71.1, and 50-18-72 in the following ways:

1. Adding a code section that makes it unlawful for any person to knowingly possess any visual medium that depicts a minor or any portion of a minor's body engaging in sexually explicit conduct to any other person regardless of purpose.

   1. Currently, O.C.G.A. § 16-12-100 prohibits (1) a person from knowingly creating, reproducing, publishing, promoting, selling, distributing, giving, exhibiting, or possessing with intent to sell or distribute any visual medium which depicts a minor or a portion of a minor's body engaged in any sexual explicit conduct, and (2) possessing or controlling any material which depicts a minor or a portion of a minor's body engaged in any sexual explicit conduct.

   2. SB 481 proposes to add a new code section 16-12-100.4 that would broaden the scope of unlawful activities to include distributing, giving, exhibiting, and reproducing any visual medium which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct regardless of whether or not the person engages in those activities with the intent to sell or distribute the material.

2. Limiting the exceptions to the new code section to prosecuting, defending, or representing a party in a civil action and providing that the material is not to be furnished to third parties or non-parties.

   1. Currently, O.C.G.A. § 16-12-100(d) explicitly states that the Code section does not apply to the activities of law enforcement and prosecution agencies during the investigation or prosecution of criminal offenses or to legitimate medical, scientific, or education activities.

   2. SB 481 proposes to add a new code section 16-12-100.4(c) that would essentially remove the above exception and instead create an affirmative defense for violations in only those situations where a person possesses such visual medium depiction for the purposes of prosecuting, defending or representing a party in a civil action and where the visual medium is necessary for the purpose of the case.

   3. Additionally, SB 481 proposes to add language that would prohibit the use of the affirmative defense if third parties or nonparties, other than the court, jury, court personnel, or expert witnesses are provided with access or possession of the visual medium depiction.

3. Adding a new code subsection that requires that a judge approve the public inspection of any physical evidence of a violation of O.C.G.A. §§ 16-12-100, 16-12-100.1, and 16-12-100.2 and limiting inspection so that the property cannot be photographed, copied, or reproduced by any means.

   1. O.C.G.A. § 50-18-71.1 currently states that any exhibit tendered to the court, as evidence in a criminal or civil trial, cannot be open to public inspection without the approval of the judge assigned to the case. However, if the judge does not approve the open inspection, upon request, a photograph, photocopy, facsimile, or another reproduction may be provided.

   2. The language proposed in SB 481 would add a provision that requires that a judge approve any public inspection of any physical evidence of a violation of O.C.G.A. §§ 16-12-100, 16-12-100.1, and 16-12-100.2. The new language does not allow the materials to be photographed, copied, or reproduced by any means at all, even if approval of a public inspection is denied.

4. Adding a new exception for which public disclosure of records shall not be required.

   1. Under the current law, O.C.G.A. § 50-18-72, there is no exception for public disclosure of records relating to sexually explicit material or visual medium that depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct.

   2. SB 481 will supplement the current law by adding a new provision to the current list of exceptions where public disclosure of records is not required. The new exception would not require public disclosure of records for any physical evidence or investigatory materials that are evidence of an alleged violation of Code §§ 16-12-100, 16-12-100.1, and 16-12-100.2.

Analysis and Recommendations

Protecting the children depicted in these images of sexually explicit conduct from having their sexual activity viewed by others is good public policy because it prevents the ongoing victimization of these children. In addition, these children have a privacy interest in keeping their faces and identities concealed.

Issue (a): The proposed language for O.C.G.A. § 16-12-100.4 is not necessary because it is very similar to the provisions and penalties already found in O.C.G.A. § 16-12-100. For example, O.C.G.A. § 16-12-100 prohibits (1) a person from knowingly creating, reproducing, publishing, promoting, selling, distributing, giving, exhibiting, or possessing with intent to sell or distribute any material which depicts a minor or a portion of a minor's body engaged in any sexual explicit conduct, and (2) possessing or controlling any material which depicts a minor or a portion of a minor's body engaged in any sexual explicit conduct. Similarly, the proposed language for O.C.G.A. § 16-12-100.4 references definitions from O.C.G.A. § 16-12-100. And finally, O.C.G.A. § 16-12-100 already provides for penalties for violations of the code. In addition, O.C.G.A. § 16-12-100 is the only relevant code section that creates an exception for law enforcement and prosecutorial agencies. Therefore, rather than creating an entirely new code section with different provisions and penalties to address the problem, which may create confusion, it would be simpler and clearer to amend O.C.G.A. § 16-12-100 as follows.

Recommended language: to replace the current proposed language for Section 1:

Section 1.1

Part 2 of Article 3 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to offenses related to minors generally, is amended in Code Section 16-12-100(b), relating to unlawful conduct, by amending part of the current subsection to read as follows:

"(8) It is unlawful for any person knowingly to posses, distribute, give, exhibit, reproduce, or control any material or visual medium which depicts a minor or any portion of a minor's body engaging in sexually explicit conduct to any other person."

Section 1.2

Part 2 of Article 3 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to offenses related to minors generally, is amended in Code Section 16-12-100(d), relating to exceptions to unlawful conduct, by amending the subsection to read as follows:

"(d) The provisions of subsection (b) of this Code section shall not apply to the activities of law enforcement and prosecution agencies in the investigation of criminal offenses or to legitimate medical, scientific, or education activities. It shall be an affirmative defense to a charge of violating this Code Section if the defendant possesses such visual medium depiction for the purposes of prosecuting, defending, or representing a party in a civil action when such visual medium depiction is necessary for the purposes of such case; provided, however, that the affirmative defense provided in this subsection shall not apply to providing to third parties or nonparties, other than to the court, jury, court personnel, or expert witnesses, access or possession of such visual medium depiction."

Section 1.3

Part 2 of Article 3 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to offenses related to minors generally, is amended in Code Section 16-12-100(g), relating to penalties for violation of the Code section, by amending part of the current subsection and adding a new part to the subsection to read as follows:

"(g)(1) Except as otherwise provided in paragraphs (2) and (3) of this subsection, any person who violates a provision of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five or more than 20 years and by a fine of not more than $100,000.00. In the event, however, that the person so convicted is a member of the immediate family of the victim, no fine shall be imposed."

...

(3) Any person who violates subsection (d) of this Code section shall be guilty of a felony, punishable by imprisonment for not less than one nor more than 20 years."

Issue (b): The proposed language in SB 481 makes the exception in O.C.G.A. § 16-12-100(d) that protects the activities of law enforcement and prosecution agencies during the investigation or prosecution of criminal offenses from constituting a violation of the child pornography law null and void. In its place, SB 481 provides affirmative defenses in only those situations where the defendant possesses a pornographic depiction of a minor "for the purposes of prosecuting, defending or representing a party in a civil action" and where the visual medium is necessary for the purpose of the case. Although the language of SB 481 seems to imply that the affirmative defense would apply to prosecutors and defenders in criminal cases, the current wording lacks clarity. Specifically, the language is unclear as to whether the affirmative defense would apply to all prosecutors and defenders or only to those prosecutors and defenders in civil actions. In addition, this language creates a gap in protection for law enforcement during the course of investigations of criminal offenses. If no protection is provided for legitimate law enforcement and criminal prosecutors and defenders, the investigation and prosecution of violations of §§ 16-12-100, 16-12-100.1, and 16-12-100.2 would be significantly hampered, as it would open up law enforcement investigators, prosecutors, and defenders to criminal liability for possessing any evidence of such violations.

Recommended Language³: to replace the current proposed language for Section 1:

Section 1
...

(c) It shall be an affirmative defense to a charge of violating this Code section if (1) the defendant possesses such visual medium depiction for the purposes of prosecuting or defending in a criminal action or representing a party in a civil action when such visual medium depiction is necessary for the purpose of such case or (2) the defendant is a member of law enforcement and possesses such visual medium depiction during the investigation of criminal offenses; provided, however, that the affirmative defenses provided in this subsection shall not apply to providing to third parties or nonparties, other than to the court, jury, court personnel, or expert witnesses, access or possession of such visual medium depiction.

Conclusion

SB 481 broadens the scope of privacy protection for minor victims of sexual exploitation. This goal is fully supported by the Barton Child Law & Policy Clinic. However, as written, the bill is slightly confusing and somewhat redundant. The Barton Clinic recommends that parts of the bill be redrafted as noted above in Issue (a) in order to improve its clarity. Further, the bill as drafted does not provide adequate protection for the legitimate actions of law enforcement or criminal prosecutors or defenders. To ensure that these groups are protected, the Barton Clinic recommends that parts of the bill be redrafted as noted above in Issue (b).

It should also be noted that House Bill 1020 ("HB 1020"), a bill with similar goals and provisions, was introduced in the House on January 30, 2008 by Representative Rick Golick (34^th District). The language of HB 1020 adds a new code section to Chapter 16 of Title 17 of the Official Code of Georgia Annotated, relating to discovery in felony cases. The new proposed language would mandate that any material evidence of a violation of O.C.G.A. § 16-12-100, 16-12-100.1 or 16-12-100.2 is to be kept in the possession, custody, and control of the law enforcement agency, prosecuting attorney's office or the court. HB 1020 would allow defendants the opportunity to inspect, view, and examine the evidence. Further, the bill would prohibit the production or discovery of such evidence unless the court finds that such evidence is material, necessary, and relevant. If the court allows the production of such evidence, the courtroom must be cleared of all but those necessary to the action or proceeding. Finally, HB 1020 amends O.C.G.A. § 50-18-72, relating to public disclosure of records, in an almost identical manner as SB 481.

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