GA Code § 16-6-13 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 6 - Sexual Offenses|§ 16-6-13. Penalties for Violating Code Sections 16-6-9 Through 16-6-12

  Except as otherwise provided in subsection (b) of this Code section, a person convicted of violating:   Code Section 16-6-10 shall be punished as for a misdemeanor of a high and aggravated nature, and at the sole discretion of the judge, all but 24 hours of any term of imprisonment imposed may be suspended, stayed, or probated;   Code Section 16-6-9 shall be punished as for a misdemeanor;   Code Section 16-6-11 for a:   First offense shall be punished as for a misdemeanor of a high and aggravated nature, and at the sole discretion of the judge, all but 72 hours of any term of imprisonment imposed may be suspended, stayed, or probated; and   Second or subsequent offense shall be guilty of a felony and shall be punished by a term of imprisonment of not less than one year nor more than ten years; or     Code Section 16-6-12 for a:   First offense shall be punished as for a misdemeanor of a high and aggravated nature, and at the sole discretion of the judge, all but 72 hours of any term of imprisonment imposed may be suspended, stayed, or probated; and   Second or subsequent offense shall be guilty of a felony and shall be punished by a term of imprisonment of not less than one year nor more than ten years.         Reserved.   A person convicted of any of the offenses enumerated in Code Sections 16-6-10 through 16-6-12 when such offense involves the conduct of a person under the age of 18 years shall be guilty of a felony and shall be punished by imprisonment for a period of not less than ten nor more than 30 years and a fine of not more than $100,000.00.   Adjudication of guilt or imposition of a sentence for a conviction of a second or subsequent offense pursuant to this subsection, including a plea of nolo contendere, shall not be suspended, probated, deferred, or withheld.       The clerk of the court in which a person is convicted of pandering shall cause to be published a notice of conviction for each such person convicted. Such notices of conviction shall be published in the manner of legal notices in the legal organ of the county in which such person resides or, in the case of nonresidents, in the legal organ of the county in which the person was convicted. Such notice of conviction shall be one column wide by two inches long and shall contain the photograph taken by the arresting law enforcement agency at the time of arrest, name, and address of the convicted person and the date, time, place of arrest, and disposition of the case and shall be published once in the legal organ of the appropriate county in the second week following such conviction or as soon thereafter as publication may be made.   The convicted person for which a notice of conviction is published pursuant to this subsection shall be assessed the cost of publication of such notice and such assessment shall be imposed at the time of conviction in addition to any other fine imposed pursuant to this Code section.   The clerk of the court, the publisher of any legal organ which publishes a notice of conviction, and any other person involved in the publication of an erroneous notice of conviction shall be immune from civil or criminal liability for such erroneous publication, provided such publication was made in good faith.     In addition to any other penalty authorized under subsections (a) and (b) of this Code section, a person convicted of an offense enumerated in Code Sections 16-6-9 through 16-6-12 shall be fined $2,500.00 if such offense was committed within 1,000 feet of any school building, school grounds, public place of worship, or playground or recreation center which is used primarily by persons under the age of 17 years.    (Code 1933, § 26-2015, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1970, p. 236, § 4; Ga. L. 1988, p. 1797, § 2; Ga. L. 1992, p. 6, § 16; Ga. L. 1998, p. 1301, § 2; Ga. L. 2001, p. 92, § 4; Ga. L. 2003, p. 878, § 1.1; Ga. L. 2011, p. 217, § 2/HB 200; Ga. L. 2017, p. 489, § 3/HB 341; Ga. L. 2019, p. 73, § 1/HB 281; Ga. L. 2019, p. 74, § 1-7/SB 158.)    The 2017 amendment,  effective July 1, 2017, substituted the present provisions of subsection (a) for the former provisions, which read: "Except as otherwise provided in subsection (b) of this Code section, a person convicted of any of the offenses enumerated in Code Sections 16-6-10 through 16-6-12 shall be punished as for a misdemeanor of a high and aggravated nature. A person convicted of the offense enumerated in Code Section 16-6-9 shall be punished as for a misdemeanor.".    The 2019 amendments.  The first 2019 amendment, effective July 1, 2019, substituted the present provisions of paragraph (a)(3) for the former provisions, which read: "Code Section 16-6-11 shall be punished as for a misdemeanor of a high and aggravated nature, and at the sole discretion of the judge, all but 24 hours of any term of imprisonment imposed may be suspended, stayed, or probated; or"; substituted the present provisions of paragraph (a)(4) for the former provisions, which read: "Code Section 16-6-12 shall be punished as for a misdemeanor of a high and aggravated nature, and at the sole discretion of the judge, all but 24 hours of any term of imprisonment imposed may be suspended, stayed, or probated."; and substituted "30 years and a fine of not more than $100,000.00" for "30 years, a fine of not more than $100,000.00, or both" near the end of paragraph (b)(2). The second 2019 amendment, effective July 1, 2019, substituted "Reserved." for the former provisions of paragraph (b)(1), which read: "A person convicted of any of the offenses enumerated in Code Sections 16-6-10 through 16-6-12 when such offense involves the conduct of a person who is at least 16 but less than 18 years of age shall be guilty of a felony and shall be punished by imprisonment for a period of not less than five nor more than 20 years, a fine of not less than $2,500.00 nor more than $10,000.00, or both.", and, in paragraph (b)(2), substituted "age of 18" for "age of 16" and substituted "30 years and a fine of not more than $100,000.00" for "30 years, a fine of not more than $100,000.00, or both". See Editor's note for applicability.   Cross references.   - Affirmative defense to certain sexual crimes, § 16-3-6.    Registered offenders residing within areas where minors congregate, § 42-1-13.   Editor's notes.   - Ga. L. 2001, p. 92, §§ 1 and 2, not codified by the General Assembly, provide: "This Act shall be known and may be cited as the 'Child Sexual Commerce Prevention Act of 2001.' The General Assembly acknowledges that children are increasingly induced, coerced, or compelled to perform sexual acts for the financial benefit of third parties. The General Assembly enacts this law to express its abhorrence for these practices and to better protect children from sexual exploitation."   Ga. L. 2019, p. 74, § 1-1/SB 158, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Anti-Human Trafficking Protective Response Act.'"   Ga. L. 2019, p. 74, § 3-1/SB 158, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2019, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2019, shall be governed by the statute in effect at the time of such offense, and any resulting conviction shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction."   Law reviews.   - For review of 1998 legislation relating to crimes and offenses, see 15 Ga. St. U. L. Rev. 69 (1998). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 131 (2011). For article, "Crimes and Offenses: Crimes Against the Person," see 28 Ga. St. U. L. Rev. 131 (2011). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 63 (2019). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 32 (2001).   JUDICIAL DECISIONS   Failure to request lesser included offense instruction.    - Counsel was not ineffective for failing to request a jury instruction on the crime of pimping as a lesser-included offense of trafficking a minor for sexual servitude without the use of coercion because the jury found the defendant guilty on the three trafficking without coercion counts and on three related counts charging the greater offense of trafficking the victim for sexual servitude through the use of coercion; thus, the defendant did not meet the defendant's burden of showing that there was a reasonable possibility that the jury would have acquitted the defendant on all of the indicted offenses and, instead, convicted the defendant only of pimping if counsel had requested a jury instruction on pimping as a lesser-included offense. Byrd v. State, 344 Ga. App. 780, 811 S.E.2d 85 (2018), overruled on other grounds by Thomas v. State, 352 Ga. App. 640, 835 S.E.2d 640 (2019).   Conviction for felony versus misdemeanor appropriate.    - Trial court did not err by sentencing defendant for felony pimping, instead of only a misdemeanor count of pimping, as defendant was charged with instructing a person to commit the act of prostitution and receiving money therefrom, which was a clear violation of O.C.G.A. § 16-6-11(4), and because the indictment alleged that the person whom defendant instructed was under the age of 18 years, the crime of pimping was elevated to a felony under O.C.G.A. § 16-6-13(b). Burroughs v. State, 292 Ga. App. 580, 665 S.E.2d 4 (2008), cert. denied, No. S08C1930, 2008 Ga. LEXIS 930 (Ga. 2008).   Failure to request instruction on pimping.    - Counsel was not ineffective for failing to request a jury instruction on the crime of pimping as a lesser-included offense of trafficking a minor for sexual servitude without the use of coercion because counsel believed that requesting an instruction on pimping as a lesser-included offense would have eliminated any chance of obtaining a full acquittal on all charges; and requesting a pimping instruction would have given the jury the opportunity to acquit the defendant on the sexual trafficking charges, but still find the defendant guilty of pimping, and that potential outcome outweighed any benefit to the defendant as pimping carried a substantial sentence that was comparable to that of trafficking for sexual servitude without coercion. Byrd v. State, 344 Ga. App. 780, 811 S.E.2d 85 (2018), overruled on other grounds by Thomas v. State, 352 Ga. App. 640, 835 S.E.2d 640 (2019).    Cited in Sutton v. Garmon, 245 Ga. 685, 266 S.E.2d 497 (1980).