Civil Liability and Sex Crimes in Georgia: Child Molestation OCGA 16-6-4
Posted by Wetherington Law Firm | Articles
Child Molestation Civil Lawsuits in Georgia
Hello, and welcome back to our ongoing blog series on sex crimes and civil liability. The statutes forbidding sex crimes are intended to protect people from physical and emotional pain, so violations of these statutes can create criminal AND civil liability.
Last week, we talked about how this applies to Georgia’s statutory rape law, OCGA 16-6-3. This week, we’ll talk about OCGA 16-6-4, which deals with child molestation. As always, this article is not meant to help educate people who have been charged with child molestation. It is instead intended for victims and their families. We will go through the rules that apply in Georgia and what to expect in a civil lawsuit against the perpetrator and anyone else who may be responsible.
The Legal Definition of Child Molestation in Georgia
OCGA 16-6-4 is fairly broad, covering a wide range of sexually predatory behaviors. An act of child molestation can be any act that’s intended to be sexually stimulating in any way, while involving a person under the age of 16.
(a) A person commits the offense of child molestation when such person:
(1) Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person; or
(2) By means of an electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.
Direct sexual contact between the perpetrator and the victim is not necessary for a child molestation conviction. The victim’s involvement can be as minimal as simply observing or being in the same room while the act is occurring. Child molestation can take place without touching, without the removal of clothing, and even without in-person contact of any kind. Engaging minors in sexually explicit interactions using technology is child molestation, even if the perpetrator and victim never meet.
What Makes Child Molestation “Aggravated”?
Aggravated child molestation is child molestation that physically harms the victim, or involves oral or anal sexual contact.
(c) A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.
Observable injuries are not necessary for child molestation to be considered aggravated. Any physical pain, as reported by the victim, is enough to make the distinction.
Criminal Consequences for Child Molestation
For a first-time offender, the required prison sentence for non-aggravated child molestation is 5-20 years, in addition to counseling. For a second offense or more, the required sentence is 10-30 years, although life imprisonment may also be a possibility, under Georgia’s rules for sentencing repeat, violent offenders.
(1) Except as provided in paragraph (2) of this subsection, a person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6. 2 and 17-10-7. Upon a defendant being incarcerated on a conviction for a first offense, the Department of Corrections shall provide counseling to such defendant. Except as provided in paragraph (2) of this subsection, upon a second or subsequent conviction of an offense of child molestation, the defendant shall be punished by imprisonment for not less than ten years nor more than 30 years or by imprisonment for life and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.2 and 17-10-7; provided, however, that prior to trial, a defendant shall be given notice, in writing, that the state intends to seek a punishment of life imprisonment.
In cases of aggravated child molestation, there is a minimum of 25 years and a possibility of life imprisonment, regardless of whether it’s a first offense or not.
(1) Except as provided in paragraph (2) of this subsection, a person convicted of the offense of aggravated child molestation shall be punished by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life, and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.
Exceptions for Young Offenders
OCGA 16-6-4 contains an exception for perpetrators who are 18 years of age or younger, if the victim is at least 14. In these cases, the offense is a misdemeanor.
(2) If the victim is at least 14 but less than 16 years of age and the person convicted of child molestation is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.
The exception is similar if the offense would normally be classified as aggravated child molestation due to oral or anal contact.
(2) A person convicted of the offense of aggravated child molestation when:
(A) The victim is at least 13 but less than 16 years of age;
(B) The person convicted of aggravated child molestation is 18 years of age or younger and is no more than four years older than the victim; and
(C) The basis of the charge of aggravated child molestation involves an act of sodomy
shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.1.
If the victim is at least 13 years old and the age difference is no more than four years, this is also a misdemeanor.
However, there is no exception for aggravated child molestation that causes physical injury to the victim.
Authority to Prosecute Child Molestation Cases
Georgia courts have the right to prosecute cases of child molestation that occur while either the perpetrator or the victim is located within the state.
(e) A person shall be subject to prosecution in this state pursuant to Code Section 17-2-1 for any conduct made unlawful by paragraph (2) of subsection (a) of this Code section which the person engages in while:
(1) Either within or outside of this state if, by such conduct, the person commits a violation of paragraph (2) of subsection (a) of this Code section which involves a child who resides in this state; or
(2) Within this state if, by such conduct, the person commits a violation of paragraph (2) of subsection (a) of this Code section which involves a child who resides within or outside this state.
Predators who engage in sexual interactions with minors online can be prosecuted whether they live in Georgia, have preyed on residents of Georgia, or both.
What Civil Damages Can a Child Recover After Molestation in Georgia?
Criminal law, including OCGA 16-6-4, is primarily focused on punishing and deterring wrongdoers. Civil law, on the other hand, is more concerned with compensating victims. A child who was molested is able to bring a claim through his legal guardian. This is typically a parent.
There are generally two ways to recover money after being subjected to molestation in Georgia. The first is from the attacker himself. This is commonly accomplished through court-ordered payments and/or a civil claim against the person responsible for the molestation. Civil claims will generally include tort claims like battery, intentional infliction of emotional distress, economic losses, and even punitive damages. Despite how obvious this claim sounds, it is rare for a victim’s family to directly sue and recover from an attacker. This is because most child molesters do not have the assets to pay the losses and/or insurance available that covers the claim.
More commonly, money is recovered from another person or business that helped create the conditions to make the molestation possible. This includes property owners that turn a blind eye to crime on their premises, companies that hire dangerous people, and even homeowners that host criminals at parties. Suing the Boy Scouts and churches for their role in child molestation is common and you have likely heard about those claims in the news. The reason the organization is typically sued is that the claims are covered by insurance policies held by the business.
What Monetary Damages is a Victim Entitled To Recover After a Child is Molested in Georgia?
Survivors of childhood molestation, the damages you can seek compensation for will fall into two categories: special and general.
Special Damages Address What the Perpetrator Has Cost You, Financially
Though it’s not the first effect people think of, childhood sexual trauma can carry a hefty financial burden. Survivors tend to make less money over the course of their lifetimes due to a range of factors, including reduced focus and motivation during school, social difficulties, and stigmatization. The process of coping with trauma can also be expensive in more direct ways, such as the cost of therapy, and the cost of treatment for the many physical ailments that become more common after trauma. To claim special damages, you’ll need to provide documentation of your losses and prove that they were caused, either directly or proximately, by your childhood molestation. The Wetherington Law Firm can help with this. To learn about the difference between direct and proximate cause, click here.
General Damages Address what the Perpetrator Has Cost You, Emotionally
Obviously, the financial cost to the victim doesn’t even begin to encompass the true cost of sexual trauma. That’s why general damages settlements exist, to honor the severity of what a survivor has been through, beyond material losses. A general damages settlement should account for the pain, fear, and anxiety your abuser put you through, the lasting effect on your personal relationships and wellbeing, and the positive experiences you’ve missed out on while coping with what happened to you. Monetary compensation won’t be able to erase these kinds of losses, but it can give you more freedom to pursue your recovery as you see fit, and may offer a sense of justice. It’s crucial to have an experienced and compassionate lawyer when pursuing general damages because, without a financial record to refer to, the total of the settlement will depend heavily on how compellingly your losses have been presented to the court.
What If I’ve Lost a Family Member to a Child Molester?
If you’ve lost a child to sexually-motivated violence, you may have grounds for a wrongful death suit. The rules for these are a little different from those for personal injury, and you can learn more about them here. The Wetherington Law Firm also represents wrongful death cases, and we’re always available to discuss your situation and what we can do to help.
Why Do I Need a Lawyer?
It’s always helpful to have an expert on your side during any kind of legal proceedings, and in situations as complex, high-stakes, and emotionally fraught as a sexual violence case, it’s absolutely essential. Taking on your abuser in court will mean weathering attacks on your credibility from opposing counsel, and facing frequent reminders of what happened to you. It’s a difficult process just to live through, without even taking into account the challenges of optimizing your strategy for the fairest possible compensation. A good lawyer can make a tremendous difference in both the ease and success of your case. When you’re represented by the Wetherington Law Firm, you have someone to argue on your behalf, handle counter-attacks, support you strategically and emotionally, and minimize your direct involvement in potentially retraumatizing parts of the process.
How to Hire the Best Lawyers for Sex Crime Survivors in Atlanta
At the Wetherington Law Firm, we strongly believe that no case should be determined by one side outspending the other. That’s why we work exclusively on a contingency basis, accepting payment only when we get a client their settlement.
With us, you will never have to worry about accounting for legal fees and gambling on whether your case is financially worth pursuing. We believe justice is always worth it. If we take your case, it’s because we believe in it, and we’re committed to fighting for what you deserve for as long as it takes. If we can’t win for you, you don’t pay.
To get started discussing your case in a free, no-obligation consultation, just give us a call at 404-888-4444.
The Wetherington Law Firm Wants to Be a Part of Making a Fairer World
We care passionately about getting justice for each one of our individual clients, and we also welcome opportunities to serve justice on a larger scale. If you were victimized not just by an individual but by an organization, we’ll take the fight to them as well. We want to hear what you have to say about the scope of the problem you mean to take on, and what you’d like to see done about it. We’re experienced in using litigation to drive change and protect potential future victims as well as compensating existing ones, and we love opportunities to work with empathetic people who think big. To learn more about our work making the world a fairer, safer place, just give us a call and ask!