Civil Liability and Sex Crimes in Georgia: Child Pornography – OCGA 16-12-100
Posted by Wetherington Law Firm | Articles
Civil Consequences for Sexual Exploitation of a Minor in Georgia
Hello, and welcome back to our new blog series on sex crimes in Georgia. Last week, we talked about Georgia’s rape statute, OCGA 16-6-1, and how the concept of negligence per se can help rape survivors sue for damages in civil court. Today, let’s have a look at OCGA 16-12-100, and how the same concept applies to the survivors of child pornography. This article is intended for families who were victims of this crime. We will go through the rules that apply in Georgia and what to expect in a civil lawsuit against the predator and any other person or organization that enabled his or her behavior.
The Definition of Child Pornography in Georgia
A violation of OCGA 16-12-100 requires three distinct elements. Firstly, there must be a person under the age of 18.
(a) As used in this Code section, the term:
(1) “Minor” means any person under the age of 18 years.
Secondly, an attempt must be made to put that person on display for a live audience or make a visual recording of them. It doesn’t matter whether the visual image will be moving or still, what medium will be used to capture it, or whether the person’s body will be shown in full or in part.
(2) “Performance” means any play, dance, or exhibit to be shown to or viewed by an audience.
(3) “Producing” means producing, directing, manufacturing, issuing, or publishing.
(5) “Visual medium” means any film, photograph, negative, slide, magazine, or other visual medium.
Thirdly, that person must be shown in a lewd way in the actual or planned image. This includes being involved in sexual intercourse or touching, being involved in violence and/or bondage in conjunction with nudity, graphic display of the pubic area, and urinating or defecating in a sexual context. The person may be alone, or there may be other people or animals involved.
(4) “Sexually explicit conduct” means actual or simulated:
(A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(B) Bestiality;
(C) Masturbation;
(D) Lewd exhibition of the genitals or pubic area of any person;
(E) Flagellation or torture by or upon a person who is nude;
(F) Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude;
(G) Physical contact in an act of apparent sexual stimulation or gratification with any person’s unclothed genitals, pubic area, or buttocks or with a female’s nude breasts;
(H) Defecation or urination for the purpose of sexual stimulation of the viewer; or
(I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.
Any performance or recorded material that includes these three elements is illegal under Georgia’s child pornography law, regardless of whether the subject actually performed any of the implied acts or whether there were special effects involved.
Who Can Face Charges Related to Child Pornography?
Anyone who knowingly uses a minor in any way with the intent of producing child pornography is in violation of 16-12-100. Even if the camera fails and no actual recording is created, simply forcing, persuading, or asking the minor to undress or perform other actions for the sake of the recording is enough.
(b)
(1) It is unlawful for any person knowingly to employ, use, persuade, induce, entice, or coerce any minor to engage in or assist any other person to engage in any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.
Any adult who knowingly uses their control over a minor to enable the production of child pornography is also guilty.
(2) It is unlawful for any parent, legal guardian, or person having custody or control of a minor knowingly to permit the minor to engage in or to assist any other person to engage in sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.
The same goes for performances in front of a live audience that are never recorded.
(3) It is unlawful for any person knowingly to employ, use, persuade, induce, entice, or coerce any minor to engage in or assist any other person to engage in any sexually explicit conduct for the purpose of any performance.
(4) It is unlawful for any parent, legal guardian, or person having custody or control of a minor knowingly to permit the minor to engage in or to assist any other person to engage in sexually explicit conduct for the purpose of any performance.
In addition to the creators, anyone who knowingly helps distribute child pornography in any way is also in violation of 16-12-100, whether or not there is any money exchange involved.
(5) It is unlawful for any person knowingly to create, reproduce, publish, promote, sell, distribute, give, exhibit, or possess with intent to sell or distribute any visual medium which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.
So is anyone who shares, promises, or seeks out information on obtaining child pornography.
(6) It is unlawful for any person knowingly to advertise, sell, purchase, barter, or exchange any medium which provides information as to where any visual medium which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct can be found or purchased.
Any anyone who brings child pornography into Georgia.
(7) It is unlawful for any person knowingly to bring or cause to be brought into this state any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.
And anyone who possesses child pornography at any time, for almost any reason.
(8) It is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.
Apart from a small handful of exceptions that we’ll get into in a moment, basically anyone who’s ever had anything to do with child pornography, other than the victims, can be prosecuted under 16-12-100.
Whistleblower Duties and Protections Related to Child Pornography
Anyone who provides services in the visual media or print industry has a legal obligation to report any suspicions of child pornography. For example, if someone working for a print-on-demand publishing platform notices what appear to be lewd images of minors in a client’s uploaded files, the publishing employee must report the images to the appropriate authorities. This also applies to anyone approached “off-the-books” to process child pornography, including friends of the pornography producer.
(c) A person who, in the course of processing or producing visual or printed matter either privately or commercially, has reasonable cause to believe that the visual or printed matter submitted for processing or producing depicts a minor engaged in sexually explicit conduct shall immediately report such incident, or cause a report to be made, to the Georgia Bureau of Investigation or the law enforcement agency for the county in which such matter is submitted. Any person participating in the making of a report or causing a report to be made pursuant to this subsection or participating in any judicial proceeding or any other proceeding resulting therefrom shall in so doing be immune from any civil or criminal liability that might otherwise be incurred or imposed, providing such participation pursuant to this subsection is made in good faith.
As long as the person who was asked to provide services for publishing child pornography files a report in good faith at the first opportunity, that whistleblower is immune from prosecution for any services they might have unknowingly or unwillingly provided already.
Other Considerations
Law enforcement professionals are exempt from child pornography possession rules, to the extent that possessing child pornography may be necessary for the investigation and prosecution of related crimes.
(d) The provisions of subsection (b) of this Code section shall not apply to:
(1) The activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses;
Specific materials that would technically fit the above definition of child pornography can also be exempt, if they’re determined to be legitimately educational or scientific in nature. For example, a pediatric medical textbook, or a children’s sex education book, might need to include visual representations of how prepubescent sex organs differ from mature ones and change over time.
(2) Legitimate medical, scientific, or educational activities; or
Minors who create pornographic images of themselves and only themselves are also exempt from prosecution.
(3) Any person who creates or possesses a visual medium depicting only himself or herself engaged in sexually explicit conduct.
However, anyone else who encourages, takes possession of, or otherwise uses a minor’s self-pornography is still in violation of 16-12-100.
Criminal Consequences of Child Pornography Crimes
Child pornography is a felony carrying a prison sentence ranging from 5 to 20 years, not only for the producer, but for everyone else who controls, distributes, possesses, transports, or enables it in any of the ways mentioned above. Perpetrators who are not immediate family members of the minor may also be fined up to $100,000.
(f)
(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 nor more than 20 years and by a fine of not more than $100,000.00; provided, however, that if the person so convicted is a member of the immediate family of the victim, no fine shall be imposed. Any person punished as provided in this paragraph shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.
Anyone who suspects they are processing child pornography and fails in their whistleblower duty, but is otherwise not involved, is guilty of a misdemeanor.
(2) Any person who violates subsection (c) of this Code section shall be guilty of a misdemeanor.
In addition, law enforcement has the right and responsibility to confiscate the child pornography, all profits from the child pornography, and any supplemental materials or paraphernalia.
(e)
(1) As used in this subsection, the terms “proceeds” and “property” shall have the same meaning as set forth in Code Section 9-16-2.
(2) Any property which is, directly or indirectly, used or intended to be used in any manner to facilitate a violation of this Code section and any proceeds are declared to be contraband and no person shall have a property right in them.
(3) Any property subject to forfeiture pursuant to paragraph (2) of this subsection shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.
Consequences for Minors Who Produce Child Pornography in Georgia
Minors can be prosecuted for child pornography if the pornography in question involves other minors instead of, or in addition to, themselves.
If the minors involved are all consenting and at least 14 years old, and the pornographic materials are not used for profit or for any form of bullying, the underage producer can only be charged with a misdemeanor.
(2) Any person who violates subsection (c) of this Code section shall be guilty of a misdemeanor.
(3) Any person who violates paragraph (1), (5), (7), or (8) of subsection (b) of this Code section shall be guilty of a misdemeanor if:
(A) The minor depicted was at least 14 years of age at the time the visual medium was created;
(B) The visual medium was created with the permission of the minor depicted; and
(C) The defendant was 18 years of age or younger at the time of the offense and:
(i) The defendant’s violation of such paragraphs did not involve the distribution of such visual medium to another person; or
(ii) In the court’s discretion, and when the prosecuting attorney and the defendant have agreed, if the defendant’s violation of such paragraphs involved the distribution of such visual medium to another person but such distribution was not for the purpose of:
(I) Harassing, intimidating, or embarrassing the minor depicted; or
(II) For any commercial purpose.
Otherwise, the producer is subject to the same felony charges as an adult.
What Money Can a Victim of Child Pornography Recover?
If you were used for the production of child pornography as a minor, you can sue the producer for the damages you’ve suffered. If the producer has already been convicted of a 16-12-100 violation in criminal court, that will make your civil case simpler and easier to pursue, but it is unnecessary and you absolutely should NOT wait to pursue a claim. The claim may be brought through the child’s legal guardian.
There are generally two ways victims get compensation through the civil justice system. The first is from the person who created the images. This is sometimes accomplished through court-ordered payments. You can also file a civil claim, however, the person must have assets to pay for your losses (and most criminals don’t).
Most often, money is recovered from other people and businesses that helped create the conditions allowing a child to be exploited. This includes property owners that turn a blind eye to crime on their premises, companies that hire dangerous people, and organizations that allow sexual predators into their group. These claims are usually covered by insurance policies held by the business or organization. O.C.G.A. 51-3-1 imposes a duty on property owners/occupiers to do their best to limit lawful exposure to dangerous conditions, including criminals. If a child is taken advantage of because he or she seized an opportunity resulting from a property owner’s failure to implement a reasonable amount of security, victims can seek compensation for this lapse. You can learn more about this topic on our page dedicated to the area of law known as premises liability.
Once a claim is established through a civil law firm like us, the damages typically fall into two categories:
Special Damages Cover Your Financial Losses
Sexual trauma of any kind can have a steep cost for survivors over the course of a lifetime. If you’ve had to pay for therapy or other medical care as a result of your exploitation, that’s a clear example of special damages. If you’ve needed care that you couldn’t afford, the cost of that care should also be included in your special damages settlement, along with any additional costs incurred by the delay. Your academic performance may also have suffered as a result of your trauma, detracting from the earning power you would otherwise have had in adulthood. With the help of a skilled lawyer, you’ll need to take a full inventory of what your exploitation has cost you and will continue to cost you in monetary terms. To collect that sum, you’ll also need to prove that your losses were directly or proximately caused by the defendant’s actions. To learn more about direct and proximate cause and how the Wetherington Law Firm can help, click here.
General Damages Cover Your Emotional Losses
The worst consequences of being used for child pornography can’t be undone with any amount of money. Survivors of childhood sexual abuse often struggle with low self-esteem, depression, anxiety, and problems forming healthy relationships. Even with therapy, these effects may never completely fade. Unfortunately, the only remedy the law has for these non-financial losses is an additional sum of money, in the form of a general damages settlement, to help compensate for the harm that can’t be fixed. The value of general damages is inherently subjective, so the skill and experience of your lawyer can make a great deal of difference in how the court chooses to weight your emotional losses when calculating a final total for your settlement.
Why Do I Need a Lawyer?
Working with a good lawyer is absolutely essential in any legal situation where your financial future is on the line. Having a passionate and knowledgeable advocate to keep you on the right track and explain your situation to the court can make the difference between a token payment that will be gone within months and fair settlement that accounts for all aspects of your losses. A lawyer can also make the process less stressful, by acting as an intermediary between you and anyone who wants to shame or scare you away from pursuing the justice you deserve. Legal proceedings can often be re-traumatizing for survivors, but it does help to have an expert who cares about you on your side every step of the way, shielding you from unnecessary triggers and supporting you through the difficult parts.
How to Hire the Best Lawyers for Sex Crime Survivors in Atlanta
You deserve to be compensated for the way you’ve been exploited. You deserve the means to build a new life where you’ll feel secure and in control of your destiny.
The Wetherington Law Firm would be honored to help you get there, and we take our responsibility for your future very seriously. It’s why we work exclusively on a contingency basis. What that means is that our only payment comes in the form of a percentage of the settlements we win for our clients. That way, our clients never have to worry about whether they can afford representation, they never leave worse off than they started, and they know we’re as committed as they are to the success of their cases.
If you’re ready to talk to a lawyer about your situation and options, just give us a call or text at 404-888-4444.
The Wetherington Law Firm Supports Clients Who Want to Help Others
There’s nothing whatsoever wrong with wanting to take what you’re owed and move on with your life, and the Wetherington Law Firm will gladly help you do that. However, if your vision for justice is broader than that, we want to hear about it. If the child pornographer who used you has used other minors in similar ways, we’ll be happy to reach out to them and see if they’re interested in joining the fight. If a publishing or social media platform is allowing child pornography to spread, we’ll go after them as well as the pornography producers. We welcome opportunities to drive positive change and protect people beyond our own clients, and we love working with people who feel the same. To learn about what we’ve helped clients accomplish in the past, just reach out and ask!