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Georgia: Statutory Criminal Law

1. Assault and Battery

   1. Introduction

      In situations in which a WMC victim is physically assaulted, the State may charge a defendant with simple assault, aggravated assault, and/or battery. A WMC victim subject to violence at the hands of a defendant may ask the State to bring charges under this statute while bringing other related claims of his or her own against the defendant.

   2. Text of Statute(s)

      Ga. Code Ann. § 16-5-20 – Simple Assault

      Ga. Code Ann. § 16-5-21 – Aggravated Assault

      Ga. Code Ann. § 16-5-22 – Conviction of assault with intent to commit a crime if intended crime actually committed

      Ga. Code Ann. § 16-5-23 - Simple battery

      Ga. Code Ann. § 16-5-23.1 – Battery

      Ga. Code Ann. § 16-5-24 – Aggravated battery

      Ga. Code Ann. § 16-5-26 – Publication of second or subsequent conviction of simple assault, simple battery, or battery; cost of publication; good faith publications immune from liability

   3. Cases

      1. Johnson v. State, 579 S.E.2d 809 (Ga. Ct. App. 2003)
         • Procedural Posture: Defendant appealed his conviction for simple assault, battery, aggravated battery, stalking, aggravated stalking, and second degree criminal damage to property.
         • Law: Assault, battery, and stalking
         • Facts: Defendant was convicted by a jury where the defendant stalked victim to a doctor’s appointment and followed victim’s vehicle, yelling at the victim, impeding the victim’s movement, forcing victim into oncoming lanes of traffic, and on several occasions forcing the vehicle into oncoming lanes of traffic. On appeal, defendant alleged that there was insufficient evidence to support the verdict.
         • Outcome: The court affirmed the decision finding that given the defendant’s history of violence toward the victim, a jury could reasonably find that the defendant’s actions were intended to, and did, harass or intimidate the victim, and that the aggressive driving constituted at least simple assault because it placed the victim in reasonable apprehension of immediately receiving a violent injury.”
         • Special Notes: None

   4. Practice Pointers

      Our research did find any examples of cases with facts directly analogous to WMC’s fact pattern. Because assault requires a “reasonable apprehension of immediately receiving a violent injury” assault is less likely to occur through electronic means. However, it is possible that physical actions combined with electronic harassment could be sufficient for an assault charge (e.g., car sitting outside house of house with harassing electronic communications toward victim).

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2. Harassment

   1. Introduction

      In situations in which a WMC victim is harassed by phone, email, text message, or some other electronic mode of communication under certain specified circumstances, the State may pursue a harassing communications charge or invasion of privacy charge. Examples of harassment include repeated messages, threats via electronic communication, and intentional hang-ups of telephones.

   2. Text of Statute(s)

      Ga. Code Ann. § 16-11-39.1 - Harassing communications

      (a) A person commits the offense of harassing communications if such person:

      1) Contacts another person repeatedly via telecommunication, e-mail, text messaging, or any other form of electronic communication for the purpose of harassing, molesting, threatening, or intimidating such person or the family of such person;

      2) Threatens bodily harm via telecommunication, e-mail, text messaging, or any other form of electronic communication;

      3) Telephones another person and intentionally fails to hang up or disengage the connection; or

      4) Knowingly permits any device used for telecommunication, e-mail, text messaging, or any other form of electronic communication under such person's control to be used for any purpose prohibited by this subsection.

      (b) Any person who commits the offense of harassing communications shall be guilty of a misdemeanor.

      (c) The offense of harassing communications shall be considered to have been committed in the county where:

      1) The defendant was located when he or she placed the telephone call or transmitted, sent, or posted an electronic communication; or

      2) The telephone call or electronic communication was received.

      (d) Any violation of this Code section shall constitute a separate offense and shall not merge with any other crimes set forth in this title.

      (e) This Code section shall not apply to constitutionally protected speech.

   3. Cases

      1. Williams v. State, 675 S.E.2d 596 (Ga. Ct. App. 2009)
         • Procedural Posture: Defendant appealed his conviction for harassing phone calls.
         • Law: Harassing communications
         • Facts: Defendant was convicted by a jury under Ga. Code Ann. § 16-11-39.1. However, on appeal, he argued that the evidence was insufficient to sustain the conviction and the sentence was excessive. In this case, the defendant and victim were in a previous romantic relationship with numerous conflicts regarding the custody and support of the children. The defendant and victim exchanged heated phone messages, where the defendant threatened to kill the victim.¹
         • Outcome: The court affirmed the conviction, explaining that the harassing communications statute permits two “separate and alternative ways” to find harassment: 1) a single phone call threatening bodily harm or 2) repeated calls for the purpose of annoying, harassing, or molesting (including hang-ups). In this case, the defendant made a single phone call threatening to kill the victim. Thus, the conviction was upheld.²
         • Special Notes: The case shows that a string of harassing calls is not necessary for a conviction if a threat of bodily harm is present.
      2. Constantino v. State, 256 S.E.2d 382 (Ga. 1979)
         • Procedural Posture: Defendants appealed from his conviction.
         • Law: Harassing communications
         • Facts: The defendants repeatedly telephoned a news reporter asking him to investigate the difficulties they were having with the Department of Family & Children Services, which was attempting to take their children. After losing custody of the children, the news reporter began receiving hundreds of harassing phone calls. After threatening to contact police, the news reporter began receiving phone calls where the husband and wife would hang up. The defendants argued the statute was unconstitutional and objected on the grounds that a person telephoning another could never know if he is harassing that person since what may be harassing to that person might not be harassing to another.³
         • Outcome: The court affirmed the conviction, explaining that the “the victim's subjective ideas on what is or is not harassing are not in issue. In this case, the defendant telephoned intending to harass and the defendant. The conviction was upheld.⁴
         • Special Notes: The case shows that the victim’s subjective ideas on the harassment are not controlling, rather the intent of the plaintiff and presence of actual harassment control.
      3. Harris v. State, 380 S.E.2d 345 (Ga. Ct. App. 1989)
         • Procedural Posture: Defendant appealed conviction for making harassing phone calls.
         • Law: Harassing communications
         • Facts: The defendant left 10 to 20 messages with his ex-wife, addressing her by name. The defendant asserted the State failed to prove all essential elements of harassing communications because the defendant did not ever actually speak to the victim or have a conversation with the victim.⁵
         • Outcome: The court affirmed the conviction, finding that because the defendant knew his wife was the recipient of the messages, the lack of direct contact was immaterial. The court found that although the defendant claims the calls were made for the purpose of speaking with his son, there was sufficient evidence based on the number and the tenor of the calls to establish an intent to harass or annoy.⁶
         • Special Notes: This case demonstrates there is no need to actually speak with the person in order to support a harassment conviction.

   4. Practice Pointers

      • The first type of harassing communication requires the defendant to make the communication with the purpose of annoying or harassment. A WMC victim may be unable to use this statute in circumstances in which there is evidence that the caller had not initially intended to threaten him or her during the call.⁷
      • There is no private remedy for the crime of harassing communications.⁸ However, a WMC victim may be able to bring claims with similar fact patterns under other civil and common law mechanisms.⁹
      • If only a single call is made with no threat of bodily injury, then a harassing communication statute may not be able to be upheld.¹⁰

   1. Williams v. State, 675 S.E.2d at 597. ↩
   2. Id. ↩
   3. Constantino v. State, 255 S.E.2d at 383. ↩
   4. Id. ↩
   5. Harris v. State, 380 S.E.2d at 345. ↩
   6. Id. ↩
   7. Constantino v. State, 256 S.E.2d at 384. ↩
   8. Goia v. Citifinancial Auto, 499 Fed. Appx. 930, 937 (11th Cir. 2012). Note that this case is unreported and in federal court, so it is not controlling. However, the court reflects existing Georgia law. See Anthony v. American General Financial Services, Inc., 697 S.E.2d 166, 173 (Ga. 2010). ↩
   9. See supra Sections A and B for civil law and common law claims. ↩
   10. Hooper v. State, 478 S.E.2d 606, 609 (Ga. App. 1996). Finding conviction for making harassing phone calls by repetition could not be sustained when state specifically alleged that date of offense was material averment and evidence existed of only one call on that date. ↩

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3. Transmission of Sexual Content aka “Revenge Porn”

   1. Introduction

      In situations in which an abuser transmits explicit photography or videos, the State may pursue a conviction for the act of the transmission. This serves as the Georgia “revenge porn” statute.

   2. Text of Statute(s)

      Ga. Code Ann. § 16-11-90 – Transmission of Photography or Video Depicting Nudity or Sexually Explicit Conduct of an Adult

      (a) As used in this Code section, the term:

      (1) “Harassment” means engaging in conduct directed at a depicted person that is intended to cause substantial emotional harm to the depicted person.

      (2) “Nudity” means:

      (A) The showing of the human male or female genitals, pubic area, or buttocks without any covering or with less than a full opaque covering;

      (B) The showing of the female breasts without any covering or with less than a full opaque covering; or

      (C) The depiction of covered male genitals in a discernibly turgid state.

      3) “Sexually explicit conduct” shall have the same meaning as set forth in Code Section 16-12-100.

      (b) A person violates this Code section if he or she, knowing the content of a transmission or post, knowingly and without the consent of the depicted person:

      1) Electronically transmits or posts, in one or more transmissions or posts, a photograph or video which depicts nudity or sexually explicit conduct of an adult when the transmission or post is harassment or causes financial loss to the depicted person and serves no legitimate purpose to the depicted person; or

      2) Causes the electronic transmission or posting, in one or more transmissions or posts, of a photograph or video which depicts nudity or sexually explicit conduct of an adult when the transmission or post is harassment or causes financial loss to the depicted person and serves no legitimate purpose to the depicted person.

      (c) Any person who violates this Code section shall be guilty of a misdemeanor of a high and aggravated nature; provided, however, that upon a second or subsequent violation of this Code section, he or she shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment of not less than one nor more than five years, a fine of not more than $100,000.00, or both.

      (d) A person shall be subject to prosecution in this state pursuant to Code Section 17-2-1 for any conduct made unlawful by 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 this Code section which involves an individual who resides in this state; or

      (2) Within this state if, by such conduct, the person commits a violation of this Code section which involves an individual who resides within or outside this state.

      (e) 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;

      (2) Legitimate medical, scientific, or educational activities;

      (3) Any person who transmits or posts a photograph or video depicting only himself or herself engaged in nudity or sexually explicit conduct;

      (4) The transmission or posting of a photograph or video that was originally made for commercial purposes;

      (5) Any person who transmits or posts a photograph or video depicting a person voluntarily engaged in nudity or sexually explicit conduct in a public setting; or

      (6) A transmission that is made pursuant to or in anticipation of a civil action.

      (f) There shall be a rebuttable presumption that an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet, for content provided by another person, does not know the content of an electronic transmission or post.

      (g) Any violation of this Code section shall constitute a separate offense and shall not merge with any other crimes set forth in this title.

   3. Cases

      1. Somerville v. White, 787 S.E.2d 350 (Ga. Ct. App. 2016)
         • Procedural Posture: Plaintiff appealed award of damages for defendants’ counterclaims based on “violation of Georgia penal laws.”
         • Law: transmission of photography or video
         • Facts: The plaintiff brought an action against former girlfriend for a breach of contract for failure to repay a loan. The girlfriend counterclaimed for damages related to the statute criminalizing the transmission of photography or video depicting nudity or sexually explicit conduct. Specifically, among other harassing behavior, the defendant alleged the plaintiff accessed her email account and forwarded nude and sexually explicit photographs of her to over 300 of her contacts and uploaded similar photographs to social media. She alleged the act of sending these photographs violated Ga. Code Ann. § 16-11-90 and sought damages. The trial court awarded civil damages under this statute, which the plaintiff appealed.¹
         • Outcome: The appellate court found that the trial court erred in awarding civil damages, because Ga. Code Ann. § 16-11-90 is a criminal statute that does not provide for a private right of action. Citing the Georgia Supreme Court, the court explained “civil liability may only be authorized under a penal statute when the General Assembly has expressly provided for a private right of action in the textual provisions of that statute,5 “not extrapolated from the public policy the statute generally appears to advance.”² Further, the Georgia General Assembly has expressly established by statute that “no private right of action shall arise from any Act enacted after July 1, 2010, unless such right is expressly provided therein.”³

   4. Practice Pointers

      • The abuser must knowingly and without the consent of the victim transmit the sexually explicit material in order to obtain a conviction under Ga. Code Ann. § 16-11-90.
      • “Harassment” is required for a conviction under Ga. Code Ann. § 16–11–90, which means engaging in conduct directed at a depicted person that is intended to cause substantial emotional harm to the depicted person.
      • As noted in the case above, there is no private remedy related to the crime of harassing communications. However, a WMC victim may be able to bring claims based on these facts under other mechanisms.⁴
      • This statute was passed in 2014, so there is limited case law at this time. It is recommended to run a search for new cases if pursuing this crime.

   1. Somerville v. White, 787 S.E.2d at 351 (Ga. Ct. App. 2016). ↩
   2. Id. (citing Anthony v. American General Financial Services, Inc., 697 S.E.2d 166, 173 (Ga. 2010)). ↩
   3. Ga. Code Ann.§ 9-2-8,. ↩
   4. See Sections A and B for civil law and common law claims. ↩

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4. Eavesdropping, Peeping Tom, and Related Crimes

   1. Introduction

      Georgia has established offenses for wiretapping, eavesdropping, surveillance, and related criminal activities. These are classified generally as invasions of privacy under the statutes. A WMC victim could also press charges for “peeping Tom” if another intentionally invades the victim’s privacy by viewing the privacy of the victim without the victim’s knowledge or consent.

   2. Text of Statute(s)

      Ga. Code Ann. § 16-11-60 – Definitions

      Ga. Code Ann. § 16-11-61 – Peeping Toms

      Ga. Code Ann. § 16-11-62 – Eavesdropping, surveillance, or intercepting communication which invades privacy of another; divulging private message

      Ga. Code Ann. § 16-11-63 – Possession, sale, or distribution of eavesdropping devices

      Ga. Code Ann. § 16-11-64 – Interception of wire or oral transmissions by law enforcement officers

      Ga. Code Ann. § 16-11-64.1 – Application and issuance of order authorizing installation and use of pen register or trap and trace device

      Ga. Code Ann. § 16-11-64.2 – Emergency situation and other grounds authorizing installation and use of pen register or trap and trace device prior to order; time for order approving installation or use.

      Ga. Code Ann. § 16-11-64.3 – Emergency situation; application for an investigation warrant

      Ga. Code Ann. § 16-11-66 – Consent; telephonic conversations to which child under age of 18 years is a party Full title: Interception of wire, oral, or electronic communication by party thereto; consent requirements for recording and divulging conversations to which child under 18 years is a party; parental exception

      Ga. Code Ann. § 16-11-66.1 – Disclosure of stored wire or electronic communications; records; search warrants; issuance of subpoena; violation

      Ga. Code Ann. § 16-11-69 –Penalty for violations of part

   3. Cases

      1. Longenbach v. State, 415 S.E.2d 546 (Ga. Ct. App. 1992)
         • Procedural Posture: Defendant appealed from conviction under the “Peeping Tom” statute, Ga. Code § 16-11-61.
         • Law: Peeping Tom
         • Facts: Defendant was charged with burglary and offense of peeping Tom when victim woke up in bed with the defendant standing beside the bed masturbating. Victim started screaming and defendant ran out the door of the duplex. Defendant was acquitted of burglary and convicted for offense of peeping Tom. Defendant appealed, contending that the alleged lewd act did not meet the statutory requirements for conviction of peeping Tom.¹
         • Outcome: The court affirmed the conviction stating that “the gravamen of the offense of peeping Tom is being on the premises of another for the purpose of spying or invading privacy.”² Here, the defendant was on the premises of another and remained in the bedroom for the purpose of committing an act invading the privacy of the victim, which satisfied the statutory requirements.³
      2. Banks v. State, 341 S.E.2d 859 (Ga. Ct. App. 2009)
         • Procedural Posture: Defendant appealed his conviction for offense of peeping Tom.
         • Law: Peeping Tom
         • Facts: Defendant was observed by officers looking into the victim’s back window for two to three minutes with the victim dressed in a nightgown. The defendant asserted on appeal that the trial court failed to give adequate instructions related to the intent required to commit the offense.⁴
         • Outcome: The appellate court affirmed the trial court’s finding that specific intent is an essential element of the crime of peeping Tom, in that it must appear that the accused was on or about the premises of another for the purpose, that is, the intention of spying or invading the privacy of another or of doing acts which tend to invade the privacy of another.”⁵ In addition, the court explained that the weight of the evidence and credibility of witnesses are questions for the trier of fact, which had sufficient support to find the defendant guilty.
         • Special Notes: This case emphasizes that specific intent to commit the crime is required. The trier of fact will evaluate whether there is sufficient evidence to find the required intent.
      3. Malone v. State, 541 S.E.2d 431 (Ga. Ct. App. 2000)
         • Procedural Posture: Defendant appealed his conviction for aggravated child molestation and statutory rape.
         • Law: Interception of communications (Ga. Code Ann. § 16-11-66)
         • Facts: On appeal, defendant sought to suppress an audiotape of his phone conversation with a minor who had given prior consent to the conversation being taped. The defendant argued the minor could not give prior consent to the recording, rather an order of the court is required under Ga. Code Ann. § 16-11-66(b) in order to record a conversation.⁶
         • Outcome: The appellate court affirmed the conviction, finding that Ga. Code Ann. § 16-11-66(b) applies only to a third party’s interception of telephone conversations and does not prohibit the actual parties to such conversations from recording and divulging them.⁷ The key distinction between this scenario and that contemplated by the interception statute is that one of the persons in the conversation had provided consent to record.
         • Special Notes: After this case, the General Assembly amended Ga. Code § 16-11-66 to expressly permit parents, as third parties, to intercept and tape certain telephone conversations of minors.⁸ Other cases, including at least one Georgia Supreme Court decision, have repeatedly held parties to a conversation may record and transmit communications without the knowledge or consent of the other party.⁹
      4. Gary v. State, 790 S.E.2d 150 (Ga. Ct. App. 2016)
         • Procedural Posture: Defendant appealed his conviction for offense of peeping Tom.
         • Law: Eavesdropping (Ga. Code § 16–11–62(2))
         • Facts: Defendant was convicted of criminal invasion of privacy under Ga. Code Ann. § 16–11–62(2). The facts showed that while employed at a grocery store, the defendant aimed a cell phone underneath the skirt of the victim and recorded video. The defendant admitted to taking these recordings and a grand jury indicted the defendant on a single count of “Unlawful Eavesdropping and Surveillance.” The indictment did not identify the specific statute, but the state of Georgia maintained that the defendant violated Ga. Code Ann. § 16–11–62(2), which prohibits “any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view.” The defendant asserted that the alleged acts were not occurring in a private place and therefore his conduct did not violate the statute. The trial court rejected this argument, finding that the area of the victim’s body underneath her skirt, constituted a “a private place” within the meaning of the statute.¹⁰
         • Outcome: The appellate court reversed the trial court’s decision after analyzing the language of the statute. The court concluded that the statute does not criminalize the observation or filing of an individual in a public place.¹¹ In addition, the court explained that the weight of the evidence and credibility of witnesses are questions for the trier of fact, which had sufficient support to find the defendant guilty. The court added that “it is regrettable that no law currently exists which criminalizes” such reprehensible conduct as filming up a skirt, but suggested the remedy lays with the General Assembly rather than the courts.¹²
         • Special Notes: The statute was amended following the defendant’s indictment to extend “private place” to any place where there is a reasonable expectation of privacy.¹³ Our research did not find additional cases which have interpreted the issue of “private place,” and it is possible that a court interpreting the new definition might view the statute as applicable. Note that Judge Mercier wrote a dissent arguing the that statute should be construed broadly, given the many potential meanings of “place.” As such, the dissent asserted that the statute applied to a place on the body.¹⁴
      5. Ransom v. Ransom, 324 S.E.2d 437 (Ga. 1985)
         • Procedural Posture: In a divorce proceeding, husband and wife sought interlocutory appeal of motion in limine by wife to prevent admission of tape recordings of her telephone conversations.
         • Law: Eavesdropping (Ga. Code Ann. § 16–11–62)
         • Facts: In a divorce case, husband tape recorded telephone conversations that the wife conducted in the marital residence without her knowledge. The husband intended to use the recordings at the divorce trial to prove her infidelity during the marriage. The trial court entered an order prohibiting the use of the contents of the tape for impeachment purposes. Wife appealed the tapes being admissible for impeachment, while husband appealed the admissibility for all other purposes.¹⁵
         • Outcome: The Georgia Supreme Court found that Ga. Code Ann. § 16–11–62 is intended to protect all persons from an invasion of privacy, including invasions made upon the privacy of one spouse by the other in a private place.¹⁶ The court explained that the “legislature has not drawn an exception from the statute's prohibition for one who, in a clandestine manner, records the private telephone conversations of his spouse which occur in a private place, and we decline to do so.”¹⁷ As such, the wife had a right to privacy for her private conversations and the contents of the husband’s tape could not be used in the trial.
         • Special Notes: This case demonstrates that there is no exception to the statute for communications made by spouses.
      6. Kelley v. State, 503 S.E.2d 881 (Ga. Ct. App. 1998)
         • Procedural Posture: Defendant appealed conviction of invading 16-year old child’s privacy.
         • Law: Eavesdropping (Ga. Code Ann. § 16–11–62), invasion of privacy
         • Facts: Defendant’s guardians allegedly engaged in a number of inappropriate sexual activities, including a guardian taking a photo of the victim in a bathtub. The guardian never had the film developed and never showed the photograph to anyone. The trial court found that sufficient evidence existed to convict under Ga. Code Ann. § 16–11–62.¹⁸
         • Outcome: The appellate court found that the fact the film was not developed or the photograph shown to others was not relevant. The court then addressed whether a minor in a bathroom of the familial home had an expectation of privacy, finding that the privacy protections of Ga. Code Ann. § 16–11–62 applied to any person in a private place and out of public view. Here, the 16-year old girl would expect some privacy, even from her parents or guardians, when she was nude in the bathroom, and “a jury could conclude that . . . the act of taking a photograph of the 16-year-old victim nude was a “casual or hostile intrusion or surveillance.”¹⁹ The court affirmed the trial court’s decision.²⁰
         • Special Notes: The case also addressed child molestation and sexual battery laws, but is most applicable to WMC victims in that it shows distribution of a photograph is not required in order for a violation to occur.

   4. Practice Pointers

      • For the offense of Peeping Tom, specific intent is required. The trier of fact will evaluate whether there is sufficient evidence to find the required intent. It is not required that the peeping Tom actually spied on the victim, rather the act of spying must take place.²¹ Similarly, the victim does not have to be aware of the peeping in order for a conviction to be obtained.²²
      • For the offense of Peeping Tom, the defendant must be “on or about” the premises. The cases reviewed do not provide a specific distance or define this term. However, most Peeping Tom charges involve actual access into the victim’s home or peering through the window into the house.²³
      • A statutory exception to the offense of eavesdropping under Ga. Code Ann. § 16-11-62 exists for law enforcement officers, crime prevention, and security purposes.²⁴
      • Georgia is a single-party consent state for recording communications. While some states require both parties to consent to a recording, Georgia does not criminalize the recording of a conversation by someone who is a party to the conversation. Thus, a charge under Ga. Code Ann. § 16-11-62 or Ga. Code Ann. § 16-11-66 will not be available against a party engaged in the conversation.

   1. Longenbach v. State, 415 S.E.2d at 547 (Ga. Ct. App. 1992). ↩
   2. Id. ↩
   3. Id. at 548. ↩
   4. Banks v. State, 341 S.E.2d at 860. ↩
   5. Id. ↩
   6. Malone, 541 S.E.2d at 432. ↩
   7. Id. at 433. ↩
   8. Ga. Code § 16-11-66(d). ↩
   9. See State v. Birge, 241 S.E. 2d 213, 214 (Ga. 1978). ↩
   10. Gary v. State, 790 S.E.2d at 151. ↩
   11. Id. at 154. ↩
   12. Id. at 155. ↩
   13. Ga. Code Ann. § 16–11–60(3). ↩
   14. Gary v. State, 790 S.E.2d at 156 (Ga. Ct. App. 2016). ↩
   15. Ransom v. Ransom, 324 S.E. 2d at 438. ↩
   16. Id. at 439. ↩
   17. Id. ↩
   18. Kelley v. State, 503 S.E. 2d at 884-85. ↩
   19. Id. at 885. ↩
   20. Id. ↩
   21. McBride v. State, 396 S.E.2d 78, 78 (Ga. Ct. App. 1990). ↩
   22. See, generally, Smith v. State, 520 S.E.2d at 13 (Ga. Ct. App. 1999). ↩
   23. See, e.g., id. ↩
   24. See, e.g., Elmore v. Atlantic Zyre, Inc., 341 S.E.2d at 907. ↩

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5. Stalking and Prowling

   1. Introduction

      In situations in which a WMC victim is repeatedly harassed and intimidated, the State may charge a defendant with stalking. This law may apply to situations of cyberstalking and cybercrime, both of which are becoming increasingly common.

   2. Text of Statute(s)

      Ga. Code Ann. § 16-5-90 - Stalking; psychological evaluation

      Ga. Code Ann. § 16-5-91 - Aggravated Stalking

      Ga. Code Ann. § 16-5-92 – Applicability

      Ga. Code Ann. § 16-5-93 – Right of victim to notification of release or escape of stalker.

      Ga. Code Ann. § 16-5-95 – Offense of violating family violence order; penalty

      Ga. Code Ann. § 16-5-96 – Publication of second or subsequent conviction of stalking or aggravated stalking; cost of publication; good faith publications immune from liability

      Ga. Code Ann. § 16-11-36 – Loitering or Prowling

      Ga. Code Ann. § 16-11-38 – Wearing mask, hood, etc.

   3. Cases

      1. Austin v. State, 782 S.E.2d 308 (Ga. Ct. App. 2016)
         • Procedural Posture: Defendant appealed his conviction for the misdemeanor of stalking following a bench trial.
         • Law: Criminal stalking, criminal trespass, and loitering or prowling
         • Facts: Defendant and victim became friends who saw each other one to three times a week, usually with others present, with no romantic, intimate, or dating relationship. Defendant began to call victim when asked not to call and left hostile messages. The court stated that defendant behaved like a jealous boyfriend when learning of the victim spending time with another male friend. The defendant became angry when victim would not let him insider her house to install a computer modem he wished to give her. On at least one occasion, victim caught defendant outside her house and informed him he should not be there. On another occasion, the doorbell rang and the victim saw the defendant’s car driving away. On a third occasion, the defendant left an umbrella at the door. On these and other occasions, the victim informed defendant he should not be coming to her house. Finally, when victim’s dog began barking one night, she called the police and told them what had been happening. The police called the defendant and issued a criminal trespass warning, after which defendant was caught outside victim’s house in his car at midnight. The police were called again, and defendant was arrested for criminal trespass stalking, and loitering or prowling. He was convicted and appealed his conviction.
         • Outcome: The court affirmed the conviction. The court analyzed the stalking statute, finding that “course of conduct” within the definition of “harassing and intimidating” “dictates that a pattern of behavior must be shown.¹ This pattern can be proven by prior history between the parties. The court found that the evidence showed the defendant repeatedly returned to the victim’s home despite her requests for him to stop. The court noted that while the defendant claimed he had innocent motives for showing up at victim’s house, the finder of fact must “determine whether the defendant acted with the requisite degree of criminal intent.”² Here, the defendant had been informed he had no business coming to the property and the court concluded there was sufficient evidence to affirm the conviction.
         • Special Notes: This case illustrates that the conduct for stalking must be “repeated” conduct in order to constitute harassment for purposes of the statute. In addition, the defendant must have “knowing and willful” conduct directed at a specific person. The finder of fact (e.g., jury) will evaluate whether such specific intent exists
      2. Chan v. Ellis, 770 S.E.2d 851 (Ga. 2015)
         • Procedural Posture: Defendant appealed trial court’s finding of permanent injunction against website.
         • Law: Stalking
         • Facts: Defendant ran a website that provided commentary critical of copyright enforcement practices. Defendant published nearly 2,000 posts about plaintiff, a poet, which were mean-spirited, distasteful, and crude, including an open letter to plaintiff, referring to her in the second person and threatening to publicize additional information about her if she continues to aggressively enforce copyrights. Plaintiff sued for injunctive relief under the Georgia stalking law, alleging that the website publications violated Ga. Code § 16–5–90(a)(1). The trial court entered a permanent injunction against the defendant, directing him to delete all posts about the plaintiff. Defendant appealed, arguing that the publication of posts were not the sort of “contact” prohibited by the statute.³
         • Outcome: On appeal, the court reversed the trial court’s grant of the injunction. The court explained that “for purposes of the statute, one ‘contacts another person’ when he communicates with another person’ through any medium, including an electronic medium.”⁴ However, the court stated it is essential that the communication be directed specifically to that other person, as opposed to the public. The court added that “a communication is about a particular person does not mean necessarily that it is directed to that person.”⁵ The court found that the website posted information about the plaintiff but did not specifically direct communication to the public. Although a few posts were closer to direct “contact,” such as the open letter, the publication did not amount to stalking because, in part, the plaintiff made a choice to discover the content of the website (e.g., no message or communication was sent). In short, the stalking law is intended to forbid speech “only to the extent that it is directed to an unwilling listener.⁶ Therefore, the court reversed the grant of the permanent injunction.
         • Special Notes: Once again, it is important to establish that the communication was directed toward the victim. Posts merely about someone do not necessarily constitute stalking.
      3. Robinson v. State, 456 S.E.2d 68 (Ga. Ct. App. 1995)
         • Procedural Posture: Defendant appealed his conviction of stalking and making harassing phone calls.
         • Law: Stalking, harassing communications
         • Facts: Victim dated the defendant for a year before attempting to end the relationship. Upon attempting to break up, the defendant called victim constantly, left a note on her car, left a threatening letter in her mailbox, rode by her house, and threatened to write a disparaging letter to her supervisor. After a warrant was issued for the defendant’s arrest, he followed victim in his car for several miles. The defendant testified she feared for her life from these actions. The defendant appealed arguing that the evidence was insufficient to support the stalking conviction because the jury acquitted him of making harassing phone calls he had not “contacted” defendant for purposes of the statute.
         • Outcome: The court affirmed the conviction, stating that “contact” means “to get in touch with; communicate with.”⁷ The court found that sufficient evidence existed to show “contact” occurred (e.g., the letters).
         • Special Notes: “Contact” can occur in a variety of forms, as long as it is intended to get in touch with or communicate with the victim.
      4. Moran v. State, 780 S.E.2d 529 (Ga. Ct. App. 2015)
         • Procedural Posture: Defendant appealed his conviction.
         • Law: Stalking, aggravated battery aggravated, burglary
         • Facts: Victim and the victim’s friend went to dinner while the defendant, victim’s boyfriend, jealously texted the victim. The victim’s friend went to the victim’s room and fell asleep on victim’s bed. The friend awoke to sound of defendant standing over him and appearing like he was going to attack him. Standing face-to-face with the victim’s friend, defendant stabbed the friend in the back using a knife and punched him in the face several times. The defendant was charged with assault and battery of the friend and with stalking of the victim. The defendant appealed the stalking conviction arguing that the victim failed to testify she was in fear for her safety. She testified she was “blackout” drunk and did not remember the details of the night, other than certain text messages the defendant sent.
         • Outcome: The court found that the state failed to present sufficient evidence the victim was in reasonable fear for a her safety which is “an essential element of stalking.”⁸ The court explained that the victim did not show any fear or emotional distress. Even though evidence suggested the victim was “a little bit” afraid of defendant during a previous argument, the charged conduct did not have sufficient fear or emotional distress, resulting in the court reversing the conviction for stalking.⁹
         • Special Notes: Context is important in determining whether a victim’s “fear” is “reasonable.” Here, the victim did not even know the defendant was there due to her inebriated state.
      5. Krepps v. State, 687 S.E.2d 608 (Ga. Ct. App. 2009)
         • Procedural Posture: Defendant appealed his conviction for stalking his ex-wife.
         • Law: Stalking
         • Facts: Defendant was convicted of stalking in 2002 of making harassing phone calls and convicted of aggravated stalking in 2003 for violating his probation by repeatedly telephoning the victim late at night. After completing a probationary sentence, the defendant resumed making phone calls to the victim, with the victim hearing only music in the background. On appeal, the defendant argued that the evidence did not show the victim was placed in reasonable fear for his safety or the safety of an immediate family member. Specifically, the defendant never directly threatened the victim, but victim said he was in reasonable fear and found 38 roofing nails at the end of the driveway after telling defendant to stop calling.¹⁰ Defendant appealed from his conviction.
         • Outcome: On appeal, the court affirmed the judgment, finding that a defendant “need not engage in unequivocally hostile conduct or make explicit threats in order to be convicted of stalking. Even behavior that is not overtly threatening can provide the requisite degree of intimidation and harassment if it is ongoing, repetitious, and engaged in despite the communicated wishes of the victim.”¹¹ The court explained that it is up to the finder of fact to determine whether the defendant acted with “the requisite degree of criminal intent” to constitute stalking.¹²
         • Special Notes: Again, context is important in determining whether a victim’s “fear” is “reasonable.” The finder of fact will evaluate the facts to determine if there is sufficient criminal intent and an overt threat is not required.¹³ Also, this case involved a sentence for a “recidivist stalker” under Ga. Code Ann. § 16–5–90(c), with the court finding that aggravated stalking and stalking both triggered the “recidivist stalker” provision.
      6. Oliver v. State, 753 S.E.2d 468 (Ga. Ct. App. 2014)
         • Procedural Posture: Defendant appealed his conviction for aggravated stalking.
         • Law: Aggravated stalking
         • Facts: Victim lived with the defendant, her daughter, when defendant began exhibiting volatile and violent behavior toward her mother. The victim sought and obtained a family violence protective order, which ordered the defendant to stay away from the victim’s residence. Thereafter, defendant telephoned victim and said she was coming over while asking victim to call an ambulance for an overdose on tranquilizers in an attempt to commit suicide. The defendant knocked on victim’s door and the victim refused to let defendant inside. The victim called the police who arrived and transported the defendant to the hospital in an ambulance. The defendant was convicted of aggravated stalking for the incident. The defendant appealed arguing that the state failed to prove she had engaged in a “pattern of harassing and intimidating behavior.”¹⁴
         • Outcome: On appeal, the court affirmed the conviction. The court explained that “a single violation of a protective order, by itself, does not amount to aggravated stalking,” and the conduct must be established by “a pattern of harassing and intimidating behavior.”¹⁵ However, the statute “does prohibit ‘even a single violation of a protective order if that violation is part of a pattern of harassing and intimidating behavior.’” In evaluating the evidence, the jury can consider “the prior history between the parties, the defendant's surreptitious conduct, as well as [her] overtly confrontational acts, and any attempts by the defendant to contact, communicate with, or control the victim indirectly, as through third parties.”¹⁶ Here, the defendant repeatedly violated the protective order by calling the victim, appearing at her home, knocking on the door, yelling and screaming at the defendant, and refusing to leave, which was a pattern of harassing and intimidating behavior.¹⁷
         • Special Notes: A pattern of harassing behavior can be found from a series of immediate events, as well as past history.
      7. Daniels v. State, 448 S.E.2d 185 (Ga. 1994)
         • Procedural Posture: Defendant appealed his conviction of violating anti-mask statute.
         • Law: Wearing mask, hood, etc.
         • Facts: Defendant found a mask and a football helmet and put on the items to entertain neighborhood children, which several children enjoyed and laughed about. A police officer later saw the defendant wearing the items near two different girls who looked uneasy. After some questioning, the police officer arrested the defendant for violation of the anti-mask statute. The defendant appealed, arguing there was insufficient evidence of criminal intent.
         • Outcome: The Georgia Supreme Court reversed the conviction, as the evidence showed that the defendant’s purpose was to entertain the children, as he had done with other children earlier that day.¹⁸ The court explained that the use of a mask for amusement and entertainment is not covered by the statute and that the trial court improperly relied on a standard that the mask-wearer “reasonably should know” that the conduct “will threaten, intimidate, or provoke the apprehension of violence.”¹⁹
         • Special Notes: This case shows that the courts require evidence that a defendant either intended to threaten or intimidate or acted with reckless disregard for the rights and safety of others.

   4. Practice Pointers

      • When a WMC victim seeks assistance from the state to pursue charges of stalking against a defendant, a key consideration will be context. The courts have consistently held that an overt threat of bodily harm is not required. The more facts suggesting that a victim’s fear was “reasonable,” the better the odds that the Court will find in the State’s favor.
      • To support a conviction for stalking or aggravated stalking a pattern of intimidating or harassing behavior must be established.²⁰
      • The offense of stalking is a lesser included offense of “aggravated stalking,” which may be charged when the defendant’s harassment or intimidation violates an existing court order.²¹
      • If a defendant violates a family violence protective order, the state may bring a separate offense for “violation of family violence order” under Ga. Code Ann., § 16-5-95. This is less common than charges of “stalking” or “aggravated stalking” and for the purposes of sentencing, a violation under this section merges with the stalking or aggravated stalking statute.²²
      • In addition to the criminal penalties for “stalking,” the statutes establish a civil remedy, with a WMC victim being able to obtain a protective order.²³ There is no tort cause of action originating from the criminal stalking statute -- a WMC victim will not be able to obtain money damages under this statute.²⁴
      • A violation of the stalking statute is a misdemeanor punishable by up to 1 year imprisonment and/or up to a $1,000 fine, while aggravated stalking is a felony punishable by up to 10 years imprisonment and/or up to a $10,000 fine.²⁵ In addition, prowling is a misdemeanor under Georgia law. However, the offense of prowling is primarily focused on addresses vagrancy and loitering, and is less likely to be charged as a standalone offense.²⁶ However, the prowling statute prohibits a person from being “in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity,” which can arise in stalking cases.²⁷

   1. Austin v. State, 782 S.E.2d at 311. ↩
   2. Id. ↩
   3. Chan v. Ellis, 770 S.E.2d at 853. ↩
   4. Id. ↩
   5. Id. at 854. ↩
   6. Id. at 855. ↩
   7. Robinson v. State, 456 S.E.2d at 69. ↩
   8. Moran v. State, 780 S.E.2d at 532. ↩
   9. Id. ↩
   10. Krepps v. State, 687 S.E.2d at 608. ↩
   11. Id. ↩
   12. Id. ↩
   13. See, e.g., Holmes v. State, 661 S.E.2d 603, 605 (Ga. Ct. App. 2008)(holding that an overt threat of bodily harm is not required). ↩
   14. Oliver v. State, 753 S.E.2d at 470. ↩
   15. Id. at 471-72. ↩
   16. Id. at 472. ↩
   17. Id. ↩
   18. Daniels v. State, 264 S.E.2d at 461-62. ↩
   19. Id. ↩
   20. See Oliver v. State, 753 S.E.2d at 470.. ↩
   21. See, e.g., Holmes v. State, 661 S.E.2d at 605. ↩
   22. Ga. Code Ann. § 16-5-95(d). ↩
   23. See supra Section C “Restraining Orders” for more information about protective orders. ↩
   24. Hopkinson v. Hopkinson, 521 S.E.2d 453, 454 (Ga. Ct. App. 1999). ↩
   25. Ga. Code Ann. §§ 16-5-90 & § 16-5-91. ↩
   26. Ga. Code Ann. § 16-11-36(c). ↩
   27. Austin v. State, 782 S.E.2d at 309. ↩

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6. Extortion

   1. Introduction

      A person who obtains property from another person by threatening to disseminate information that could lead to ridicule, such intimate photos or videos of a WMC victim may be charged with extortion.

   2. Text of Statute(s)

      Ga. Code Ann. § 16-8-16 –Theft by extortion

      (a) A person commits the offense of theft by extortion when he unlawfully obtains property of or from another person by threatening to:

      (1) Inflict bodily injury on anyone or commit any other criminal offense;

      (2) Accuse anyone of a criminal offense;

      (3) Disseminate any information tending to subject any person to hatred, contempt, or ridicule or to impair his credit or business repute;

      (4) Take or withhold action as a public official or cause an official to take or withhold action;

      (5) Bring about or continue a strike, boycott, or other collective unofficial action if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act; or

      (6) Testify or provide information or withhold testimony or information with respect to another's legal claim or defense.

      (b) In a prosecution under this Code section, the crime shall be considered as having been committed in the county in which the threat was made or received or in the county in which the property was unlawfully obtained.

      (c) It is an affirmative defense to prosecution based on paragraph (2), (3), (4), or (6) of subsection (a) of this Code section that the property obtained by threat of accusation, exposure, legal action, or other invocation of official action was honestly claimed as restitution or indemnification for harm done in the circumstance to which such accusation, exposure, legal action, or other official action relates or as compensation for property or lawful services.

      (d) A person convicted of the offense of theft by extortion shall be punished by imprisonment for not less than one nor more than ten years.

   3. Cases

      • Research is ongoing. There are no Georgia cases that are factually relevant or analogous to WMC’s target situations at this time. However, theft by extortion related to child custody in a racketeering case has been addressed by a federal court in Georgia.¹ In this case, the court cited attempted theft by extortion as part of a pattern sufficient to establish racketeering charges: “By unlawfully seeking to obtain payments and other property of or from [the plaintiff] including the relinquishment of his custody claims and payment of excessive attorney's fees’ through the actual and threatened commission of criminal offenses and the dissemination of false or negative information designed to promote hatred, contempt.”²

   4. Practice Pointers

      • Other offenses related to stalking or trespass are more likely to be charged than extortion. Extortion is only available in limited circumstances, including when the defendant threatens the victim with physical injury, accusation of a criminal offense, or dissemination of information that will result in ridicule or contempt. There is no private right of action for the criminal act of extortion.³
      • Extortion is punishable by 1-10 years imprisonment.⁴

   1. Murphy v. Farmer, 176 F. Supp. 3d 1325, 1330 (N.D. Ga. 2016). ↩
   2. Id. at 1337. ↩
   3. See Rolleston v. Huie, 400 S.E.2d 349, 351 (Ga. Ct. App. 1990). ↩
   4. Ga. Code Ann. § 16-8-16(d). ↩

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7. Trespass & Takings

   1. Introduction

      The state could bring a claim for criminal trespass if a defendant intrudes on a WMC victim’s dwelling perhaps in an effort to stalk the victim. In particular, this may be brought when the victim has told that entry into the premises is forbidden. A prosecution for criminal damage to property in the second degree may be brought when the defendant intentionally damages property valued at $500 or greater. Although no cases have directly addressed this issue, in the context of a WMC victim, the “property” in question may be intimate photographs or video-recordings, which do not maintain a pecuniary value to the public, and a defendant would not necessarily meet the financial requirements to commit an criminal damage to property under Georgia law.

   2. Text of Statute(s)

      Ga. Code Ann. § 16-7-21 – Criminal Trespass

      Ga. Code Ann. § 16-7-22 – Criminal damage to property in the first

      Ga. Code Ann. § 16-7-23 – Criminal damage to property in the second degree

      Ga. Code Ann. § 16-7-27 – Injuring, tearing down, or destroying mailboxes, injuring, defacing, or destroying mail

   3. Cases

      1. Austin v. State, 782 S.E.2d 308 (Ga. Ct. App. 2016)
         • Procedural Posture: Defendant appealed his conviction for stalking and criminal trespass.
         • Law: Stalking and criminal trespass
         • Facts: Defendant and victim became friends who saw each other one to three times a week, usually with others present, with no romantic, intimate, or dating relationship. Defendant began to call victim when asked not to call and left hostile messages. The court stated that defendant behaved like a jealous boyfriend when learning of the victim spending time with another male friend. The defendant became angry when victim would not let him insider her house to install a computer modem he wished to give her. On at least one occasion, victim caught defendant outside her house and informed him he should not be there. On another occasion, the doorbell rang and the victim saw the defendant’s car driving away. On a third occasion, the defendant left an umbrella at the door. On these and other occasions, the victim informed defendant he should not be coming to her house. Finally, when victim’s dog began barking one night, she called the police and told them what had been happening. The police called the defendant and issued a criminal trespass warning, after which defendant was caught outside victim’s house in his car at midnight. The police were called again, and defendant was arrested for criminal trespass, stalking, and loitering or prowling. He was convicted and appealed his conviction.
         • Outcome: The court affirmed the conviction. The court analyzed the criminal trespass statute, finding that the defendant had received notice from the victim that entry on the property was forbidden. Specifically, the victim told the defendant he had no business coming to her property, but the defendant still appeared on the property in front of the victim’s window.¹ The court stated that the evidence must be construed in favor of the verdict and that the evidence was sufficient to uphold the conviction.
         • Special Notes: This case is illustrative of the physical presence of the defendant required for a standard trespass claim. If the only violation takes place online, this crime is likely not available to be charged.

   4. Practice Pointers

      • As noted above, it is highly unlikely that a WMC victim would use either of these statutes in reporting a defendant’s wrongdoing against him or her in the context solely of an online or digital harassment. A charge for criminal trespass or damage to property will require the defendant to have been on the actual property.
      • Persons convicted of criminal trespass will be guilty of a misdemeanor and subject up to 1 year imprisonment and/or up to a $1,000 fine. Criminal damage of property will result in one to ten years imprisonment.
      • Computer-related trespass and related crimes, discussed in the section below, are more likely to be relevant to a WMC victim.

   1. Austin v. State, 782 S.E.2d at 309. ↩

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8. Computer-Related Crimes

   1. Introduction

      In situations in which a WMC victim is harassed electronically through computer hacking, etc., the State may charge a defendant with a computer-related crime. This statute may be particularly apt in situations of cyberstalking and cybercrime, where the defendant co-opts a victim’s personal email or social networking account.

   2. Text of Statute(s)

      Ga. Code Ann. § 16-9-92 – Definitions. See text above under Civil Computer Laws

      Ga. Code Ann. § 16-9-93 – Computer crimes defined; exclusivity of article; civil remedies; criminal penalties

      (a) Computer theft. Any person who uses a computer or computer network with knowledge that such use is without authority and with the intention of:

      1) Taking or appropriating any property of another, whether or not with the intention of depriving the owner of possession;

      2) Obtaining property by any deceitful means or artful practice; or

      3) Converting property to such person's use in violation of an agreement or other known legal obligation to make a specified application or disposition of such property shall be guilty of the crime of computer theft.

      (b) Computer Trespass. Any person who uses a computer or computer network with knowledge that such use is without authority and with the intention of:

      1) Deleting or in any way removing, either temporarily or permanently, any computer program or data from a computer or computer network;

      2) Obstructing, interrupting, or in any way interfering with the use of a computer program or data; or

      3) Altering, damaging, or in any way causing the malfunction of a computer, computer network, or computer program, regardless of how long the alteration, damage, or malfunction persists shall be guilty of the crime of computer trespass.

      (c) Computer Invasion of Privacy. Any person who uses a computer or computer network with the intention of examining any employment, medical, salary, credit, or any other financial or personal data relating to any other person with knowledge that such examination is without authority shall be guilty of the crime of computer invasion of privacy.

      (d) Computer Forgery. Any person who creates, alters, or deletes any data contained in any computer or computer network, who, if such person had created, altered, or deleted a tangible document or instrument would have committed forgery under Article 1 of this chapter, shall be guilty of the crime of computer forgery. The absence of a tangible writing directly created or altered by the offender shall not be a defense to the crime of computer forgery if a creation, alteration, or deletion of data was involved in lieu of a tangible document or instrument.

      (e) Computer Password Disclosure. Any person who discloses a number, code, password, or other means of access to a computer or computer network knowing that such disclosure is without authority and which results in damages (including the fair market value of any services used and victim expenditure) to the owner of the computer or computer network in excess of $500.00 shall be guilty of the crime of computer password disclosure.

      (f) Article Not Exclusive. The provisions of this article shall not be construed to preclude the applicability of any other law which presently applies or may in the future apply to any transaction or course of conduct which violates this article.

      (g) Civil Relief; Damages.

      1) Any person whose property or person is injured by reason of a violation of any provision of this article may sue therefor and recover for any damages sustained and the costs of suit. Without limiting the generality of the term, "damages" shall include loss of profits and victim expenditure.

      2) At the request of any party to an action brought pursuant to this Code section, the court shall by reasonable means conduct all legal proceedings in such a way as to protect the secrecy and security of any computer, computer network, data, or computer program involved in order to prevent possible recurrence of the same or a similar act by another person and to protect any trade secrets of any party.

      3) The provisions of this article shall not be construed to limit any person's right to pursue any additional civil remedy otherwise allowed by law.

      4) A civil action under this Code section must be brought within four years after the violation is discovered or by exercise of reasonable diligence should have been discovered. For purposes of this article, a continuing violation of any one subsection of this Code section by any person constitutes a single violation by such person.

      (h) Criminal Penalties.

      1) Any person convicted of the crime of computer theft, computer trespass, computer invasion of privacy, or computer forgery shall be fined not more than $50,000.00 or imprisoned not more than 15 years, or both.

      2) Any person convicted of computer password disclosure shall be fined not more than $5,000.00 or incarcerated for a period not to exceed one year, or both.

      Ga. Code Ann. § 16-9-93.1 – Misleading transmittal and use of individual name, trade name, registered trademark, logo, legal or official seal, or copyrighted symbol over computer or telephone network; criminal penalty; civil remedies

      (a) It shall be unlawful for any person, any organization, or any representative of any organization knowingly to transmit any data through a computer network or over the transmission facilities or through the network facilities of a local telephone network for the purpose of setting up, maintaining, operating, or exchanging data with an electronic mailbox, home page, or any other electronic information storage bank or point of access to electronic information if such data uses any individual name, trade name, registered trademark, logo, legal or official seal, or copyrighted symbol to falsely identify the person, organization, or representative transmitting such data or which would falsely state or imply that such person, organization, or representative has permission or is legally authorized to use such trade name, registered trademark, logo, legal or official seal, or copyrighted symbol for such purpose when such permission or authorization has not been obtained; provided, however, that no telecommunications company or Internet access provider shall violate this Code section solely as a result of carrying or transmitting such data for its customers.

      (b) Any person violating subsection (a) of this Code section shall be guilty of a misdemeanor.

      (c) Nothing in this Code section shall be construed to limit an aggrieved party's right to pursue a civil action for equitable or monetary relief, or both, for actions which violate this Code section.

      Ga. Code Ann. § 16-9-94 – Venue

      For the purpose of venue under this article, any violation of this article shall be considered to have been committed:

      (a) In the county of the principal place of business in this state of the owner of a computer, computer network, or any part thereof;

      (b) In any county in which any person alleged to have violated any provision of this article had control or possession of any proceeds of the violation or of any books, records, documents, or property which were used in furtherance of the violation;

      (c) In any county in which any act was performed in furtherance of any transaction which violated this article; and

      (d) In any county from which, to which, or through which any use of a computer or computer network was made, whether by wires, electromagnetic waves, microwaves, or any other means of communication.

   3. Cases

      Research is ongoing. There are no Georgia cases that are factually relevant or analogous to WMC’s target situations at this time. Most cases have addressed disputes between businesses and former employees or other businesses.

   4. Practice Pointers

      • As noted above, our research did not find examples of the state bringing charges under these statutes in situations relevant to WMC victims. Other crimes listed in this section are likely to be more relevant to WMC victims.

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9. Identity Theft

   1. Introduction

      The state could potentially bring an identity theft charge against a defendant where a defendant transfers a WMC victim’s personal identifying information to others without his or her consent. For instance, if the defendant stole the victim’s name and identifying information and disclosed the victim’s identifying information online, including advertising his or her identifying information to proposition sexual activity (e.g., Craigslist classified), the statute could apply.

   2. Text of Statute(s)

      Ga. Code Ann. § 16-9-120 – Definitions

      As used in this article, the term:

      (a) "Attorney General" means the Attorney General or his or her designee.

      (b) "Business victim" means any individual or entity that provided money, credit, goods, services, or anything of value to someone other than the intended recipient where the intended recipient has not given permission for the actual recipient to receive it and the individual or entity that provided money, credit, goods, services, or anything of value has suffered financial loss as a direct result of the commission or attempted commission of a violation of this article.

      (c) "Consumer victim" means any individual whose personal identifying information has been obtained, compromised, used, or recorded in any manner without the permission of that individual.

      (d) "Health care records" means records however maintained and in whatever form regarding an individual's health, including, but not limited to, doctors' and nurses' examinations and other notes, examination notes of other medical professionals, hospital records, rehabilitation facility records, nursing home records, assisted living facility records, results of medical tests, X-rays, CT scans, MRI scans, vision examinations, pharmacy records, prescriptions, hospital charts, surgical records, mental health treatments and counseling, dental records, and physical therapy notes and evaluations.

      "Identifying information" shall include, but not be limited to:

      1) Current or former names;

      2) Social security numbers;

      3) Driver's license numbers;

      4) Checking account numbers;

      5) Savings account numbers;

      6) Credit and other financial transaction card numbers;

      7) Debit card numbers;

      8) Personal identification numbers;

      9) Electronic identification numbers;

      10) Digital or electronic signatures;

      11) Medical identification numbers;

      12) Birth dates;

      13) Mother's maiden name;

      14) Selected personal identification numbers;

      15) Tax identification numbers;

      16) State identification card numbers issued by state departments;

      17) Veteran and military medical identification numbers; and

      18) Any other numbers or information which can be used to access a person's or entity's resources or health care records.

      (f) "Resources" includes, but is not limited to:

      1) A person's or entity's credit, credit history, credit profile, and credit rating;

      2) United States currency, securities, real property, and personal property of any kind;

      3) Credit, charge, and debit accounts;

      4) Loans and lines of credit;

      5) Documents of title and other forms of commercial paper recognized under Title 11;

      6) Any account, including a safety deposit box, with a financial institution as defined by Code Section 7-1-4, including a national bank, federal savings and loan association, or federal credit union or a securities dealer licensed by the Secretary of State or the federal Securities and Exchange Commission;

      7) A person's personal history, including, but not limited to, records of such person's driving records; criminal, medical, or insurance history; education; or employment; and

      8) A person's health insurance, health savings accounts, health spending accounts, flexible spending accounts, Medicare accounts, Medicaid accounts, dental insurance, vision insurance, and other forms of health insurance and health benefit plans.

      Ga. Code Ann. § 16-9-121 – Elements of Offense

      (a) A person commits the offense of identity fraud when he or she willfully and fraudulently:

      1) Without authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person;

      2) Uses identifying information of an individual under 18 years old over whom he or she exercises custodial authority;

      3) Uses or possesses with intent to fraudulently use identifying information concerning a deceased individual;

      4) Creates, uses, or possesses with intent to fraudulently use any counterfeit or fictitious identifying information concerning a fictitious person with intent to use such counterfeit or fictitious identification information for the purpose of committing or facilitating the commission of a crime or fraud on another person; or

      5) Without authorization or consent, creates, uses, or possesses with intent to fraudulently use any counterfeit or fictitious identifying information concerning a real person with intent to use such counterfeit or fictitious identification information for the purpose of committing or facilitating the commission of a crime or fraud on another person.

      (b) A person commits the offense of identity fraud by receipt of fraudulent identification information when he or she willingly accepts for identification purposes identifying information which he or she knows to be fraudulent, stolen, counterfeit, or fictitious. In any prosecution under this subsection it shall not be necessary to show a conviction of the principal thief, counterfeiter, or fraudulent user.

      (c) The offenses created by this Code section shall not merge with any other offense.

      This Code section shall not apply to a person under the age of 21 who uses a fraudulent, counterfeit, or other false identification card for the purpose of obtaining entry into a business establishment or for purchasing items which he or she is not of legal age to purchase.

      Ga. Code Ann. § 16-9-123 – Investigations

      Ga. Code Ann. § 16-9-125.1 –Victim’s right to file report

      Ga. Code Ann. § 16-9-126 – Penalty for Violations

      Ga. Code Ann. § 16-9-130 – Damages available to consumer victim; no defense that others engage in comparable practices; service of complaint

   3. Cases

      Research is ongoing. There are no Georgia cases that are factually relevant or analogous to WMC’s target situations at this time. Most cases have addressed traditional identity theft and use of person’s identity.

   4. Practice Pointers

      • Civil actions may be brought to recover damages with treble damages for intentional violations, but there are no examples of cases relevant to WMC victims.

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10. Distribution of Nudity or Sexual Conduct

    1. Introduction

       The state could potentially bring a criminal charge for distributing nudity or sexual conduct if a defendant sends such content to a victim through mail.

    2. Text of Statute(s)

       Ga. Code Ann. § 16-12-81 – Distribution of material depicting nudity or sexual conduct; penalty

       (a) A person commits the offense of distributing material depicting nudity or sexual conduct when he sends unsolicited through the mail or otherwise unsolicited causes to be delivered material depicting nudity or sexual conduct to any person or residence or office unless there is imprinted upon the envelope or container of such material in not less than eight-point boldface type the following notice: "Notice -- The material contained herein depicts nudity or sexual conduct. If the viewing of such material could be offensive to the addressee, this container should not be opened but returned to the sender."

       (b) As used within this Code section, the term:

       1) "Nudity" means the showing of the human male or female genitals, pubic area, or buttocks with less than a full opaque covering or the depiction of covered male genitals in a discernibly turgid state.

       2) "Sexual conduct" means acts of masturbation, homosexuality, sodomy, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breast.

       (c) A person who commits the offense of distributing material depicting nudity or sexual conduct, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than three years or by a fine not to exceed $10,000.00, or both.

    3. Cases

       1. Warren v. State, 755 S.E.2d 171 (Ga. 2014)
          • Procedural Posture: Defendant appealed denial of motion to quash indictment for unsolicited distribution of material depicting nudity or sexual conduct.
          • Law: Distribution of nudity or sexual conduct
          • Facts: Defendant was indicted for violating statute prohibiting unsolicited nude or sexual conduct without notifying her that the message contained nudity. The defendant filed a general demurrer stating that the statute did not criminalize the conduct, which the trial court denied. The court reviewed the applicability of electronic text messaging to this conduct.¹
          • Outcome: The court granted the motion to quash indictment because unsolicited nude text messages were not prohibited by the statute. The court explained that “the statute contains a specific prohibition against sending unsolicited through the mail material depicting nudity or sexual conduct without the required notice, followed by a more general prohibition against “otherwise unsolicited causing to be delivered material depicting nudity or sexual conduct to [a] person” without the statutory notice.”² The court found that the general prohibition, like the specific prohibition contemplates “tangible material that has a tangible envelope or container on which the required notice can be imprinted.” Thus, the general prohibition does not apply to the text message sent in this case.

    4. Practice Pointers

       • This crime may only be charged when the materials containing nude or sexual content are sent via mail, making it less likely to be charged in connection with a WMC victim.

    1. Warren v. State, 755 S.E.2d 171, 172 (Ga. 2014). ↩
    2. Id. ↩

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11. Conspiracy

    1. Introduction

       If a sexual photo or video is published online, it may have been published by several people, rather than just one. Moreover, although one person does the actual posting of an image, several other individuals may be make comments or take actions that intensify the situation. For instance, although one person posts an image, another co-conspirator may add sound. In such cases, the state could bring a charge for conspiracy to commit a crime.

    2. Text of Statute(s)

       Ga. Code Ann. § 16-4-8 – Conspiracy to commit a crime

       A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy. A person convicted of the offense of criminal conspiracy to commit a felony shall be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which he could have been sentenced if he had been convicted of the crime conspired to have been committed, by one-half the maximum fine to which he could have been subjected if he had been convicted of such crime, or both. A person convicted of the offense of criminal conspiracy to commit a misdemeanor shall be punished as for a misdemeanor. A person convicted of the offense of criminal conspiracy to commit a crime punishable by death or by life imprisonment shall be punished by imprisonment for not less than one year nor more than ten years.

       Ga. Code Ann. § 16-4-8.1 – Conviction of conspiracy even if crime completed

       A person may be convicted of the offense of conspiracy to commit a crime, as defined in Code Section 16-4-8, even if the crime which was the objective of the conspiracy was actually committed or completed in pursuance of the conspiracy, but such person may not be convicted of both conspiracy to commit a crime and the completed crime.

    3. Cases

       Research is ongoing. There are no Georgia cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

       A person may not be convicted of both conspiracy to commit a crime and the completed crime, as the conspiracy conviction merges with the conviction for the completed crime.¹

    1. Ferguson v. State, 783 S.E.2d 380, 387 (Ga. Ct. App. 2016). ↩

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12. Criminal Reproduction and Sale of Recorded Material

    1. Introduction

       If a sexual photo or video is recorded on a device that does not belong to the person with the recording device, the crime of criminal reproduction can be charged. However, this crime is typically involves copyright infringement issues and no cases have been brought that are relevant to WMC victims.

    2. Text of Statute(s)

       Ga. Code Ann. § 16-8-60 – Reproduction of recorded material; transfer, sale, distribution, circulation; civil forfeiture; restitution

       (a) It is unlawful for any person, firm, partnership, corporation, or association knowingly to:

       (1) Transfer or cause to be transferred any sounds or visual images recorded on a phonograph record, disc, wire, tape, videotape, film, or other article on which sounds or visual images are recorded onto any other phonograph record, disc, wire, tape, videotape, film, or article without the consent of the person who owns the master phonograph record, master disc, master tape, master videotape, master film, or other device or article from which the sounds or visual images are derived; or

       (2) Sell; distribute; circulate; offer for sale, distribution, or circulation; possess for the purpose of sale, distribution, or circulation; cause to be sold, distributed, or circulated; cause to be offered for sale, distribution, or circulation; or cause to be possessed for sale, distribution, or circulation any article or device on which sounds or visual images have been transferred, knowing it to have been made without the consent of the person who owns the master phonograph record, master disc, master tape, master videotape, master film, or other device or article from which the sounds or visual images are derived.

       (b) It is unlawful for any person, firm, partnership, corporation, or association to sell; distribute; circulate; offer for sale, distribution, or circulation; or possess for the purposes of sale, distribution, or circulation any phonograph record, disc, wire, tape, videotape, film, or other article on which sounds or visual images have been transferred unless such phonograph record, disc, wire, tape, videotape, film, or other article bears the actual name and address of the transferor of the sounds or visual images in a prominent place on its outside face or package.

       (c) This Code section shall not apply to any person who transfers or causes to be transferred any such sounds or visual images:

       (1) Intended for or in connection with radio or television broadcast transmission or related uses;

       (2) For archival purposes; or

       (3) Solely for the personal use of the person transferring or causing the transfer and without any profit being derived by the person from the transfer.

       (d) Every person convicted of violating this Code section shall be guilty of a felony and shall be punished as follows:

       (1) Upon the first conviction of violating this Code section, by a fine of not less than $500.00 nor more than $25,000.00, by imprisonment for not less than one year nor more than two years, or both such fine and imprisonment;

       (2) Upon the second conviction of violating this Code section, by a fine of not less than $1,000.00 nor more than $100,000.00, by imprisonment for not less than one year nor more than three years and the judge may suspend, stay, or probate all but 48 hours of any term of imprisonment, or both such fine and imprisonment; or

       (3) Upon the third or subsequent conviction of violating this Code section, by a fine of not less than $2,000.00 nor more than $250,000.00, by imprisonment for not less than two nor more than five years and the judge may suspend, stay, or probate all but six days of any term of imprisonment, or both such fine and imprisonment.

       (e) This Code section shall neither enlarge nor diminish the right of parties to enter into a private contract.

       (f)

       (1) Any phonograph record, disc, wire, tape, videotape, film, or other article onto which sounds or visual images have been transferred in violation of this Code section are declared to be contraband and no person shall have a property right in them; provided, however, that notwithstanding paragraph (2) of subsection (a) of Code Section 9-16-17, no property of any owner shall be forfeited under this paragraph, to the extent of the interest of such owner, by reason of an act or omission established by such owner to have been committed or omitted without knowledge or consent of such owner.

       (2) Any property subject to forfeiture pursuant to paragraph (1) of this subsection shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.

       (g) For purposes of imposing restitution pursuant to Chapter 14 of Title 17 when a person is convicted pursuant to this Code section, the court shall consider damages to any owner or lawful producer of a master phonograph record, master disc, master tape, master videotape, master film, or other device or article from which sounds or visual images are derived. Restitution shall be based upon the aggregate wholesale value of lawfully manufactured and authorized recorded devices corresponding to the nonconforming recorded devices involved in the violation of this Code section and shall also include reasonable investigative costs related to the detection of the violation of this Code section.

    3. Cases

       Research is ongoing. There are no Georgia cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

       Nothing relevant at this time.

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