Section 16-6-5.1 - Improper sexual contact by employee, agent, or foster parent; consent not a defense; penalty(a) As used in this Code section, the term:(1) "Agent" means an individual authorized to act on behalf of another, with or without compensation.(1.1) "Child-placing agency" shall have the same meaning as set forth in Code Section 49-5-3.(2) "Child welfare and youth services" shall have the same meaning as set forth in Code Section 49-5-3.(3) "Disability" shall have the same meaning as set forth in Code Section 37-1-1.(4) "Employee" means an individual who works for salary, wages, or other remuneration for an employer or sole proprietor.(4.1) "Foster care home" means a private home used by a child-placing agency which has been approved by the child-placing agency to provide 24 hour care, lodging, supervision, and maintenance for one or more children or a private home which has been approved and is directly supervised by the Department of Human Services to provide 24 hour care, lodging, supervision, and maintenance for one or more children.(4.2) "Foster parent" means the person or persons who provide care, lodging, supervision, and maintenance for one or more children in a foster care home used by a child-placing agency or in a foster care home approved and directly supervised by the Department of Human Services.(5) "Intimate parts" means the genital area, groin, inner thighs, buttocks, or breasts of a person.(5.1) "Person in a position of trust" means an individual with whom a parent, guardian, or other person standing in loco parentis of a minor has entered into an agreement entrusting such individual with the responsibility of education and supervision of such minor; provided, however, that no such status shall exist when the terms of the agreement have been satisfied or terminated and the minor is no longer under the supervision of such individual.(6) "Psychotherapy" means the professional treatment or counseling of a mental or emotional illness, symptom, or condition.(7) "School" means any educational institution, public or private, providing elementary or secondary education to children at any level, kindergarten through twelfth grade, or the equivalent thereof if grade divisions are not used, including extracurricular programs of such institution.(8) "Sensitive care facility" means any facility licensed or required to be licensed under Code Section 31-7-3, 31-7-12, or 31-7-12.2 or who is required to be licensed pursuant to Code Section 31-7-151 or 31-7-173.(9) "Sexual contact" means any contact involving the intimate parts of either person for the purpose of sexual gratification of either person.(10) "Sexually explicit conduct" shall have the same meaning as set forth in Code Section 16-12-100.(11) "Sole proprietor" means an individual who is an owner or operator of a program or facility rendering services or housing to another as a condition of such other person's probation or parole.(b) An employee or agent commits the offense of improper sexual contact by employee or agent in the first degree when such employee or agent knowingly engages in sexually explicit conduct with another person whom such employee or agent knows or reasonably should have known is contemporaneously: (1) Enrolled as a student at a school of which he or she is an employee or agent;(2) Under probation, parole, a program or within a facility as a condition of probation or parole, accountability court, or pretrial diversion supervision of the office or court of which he or she is an employee or agent;(3) Being detained by or is in the custody of any law enforcement agency of which he or she is an employee or agent;(4) A patient in or at a hospital of which he or she is an employee or agent;(5) In the custody of a correctional facility, juvenile detention facility, facility providing services to a person with a disability, or a facility providing child welfare and youth services of which he or she is an employee or agent;(6) The subject of such employee or agent's actual or purported psychotherapy treatment or counseling; or(7) Admitted for care at a sensitive care facility of which he or she is an employee or agent.(b.1) A person commits the offense of improper sexual contact by a foster parent in the first degree when he or she is a foster parent and knowingly engages in sexually explicit conduct with his or her current foster child.(b.2) A person commits the offense of improper sexual contact by a person in a position of trust in the first degree when a person in a position of trust engages in sexually explicit conduct with a minor for whom he or she has entered into an agreement entrusting him or her with the responsibility of education and supervision of such minor.(c) A person commits the offense of improper sexual contact by employee or agent in the second degree when such employee or agent knowingly engages in sexual contact, excluding sexually explicit conduct, with another person whom such employee or agent knows or reasonably should have known is contemporaneously:(1) Enrolled as a student at a school of which he or she is an employee or agent;(2) Under probation, parole, a program or within a facility as a condition of probation or parole, accountability court, or pretrial diversion supervision of the office or court of which he or she is an employee or agent;(3) Being detained by or is in the custody of a law enforcement agency of which he or she is an employee or agent;(4) A patient in or at a hospital of which he or she is an employee or agent;(5) In the custody of a correctional facility, juvenile detention facility, facility providing services to a person with a disability, or facility providing child welfare and youth services of which he or she is an employee or agent;(6) The subject of such employee or agent's actual or purported psychotherapy treatment or counseling; or(7) Admitted for care at a sensitive care facility of which he or she is an employee or agent.(c.1) A person commits the offense of improper sexual contact by a foster parent in the second degree when he or she is a foster parent and knowingly engages in sexual contact, excluding sexually explicit conduct, with his or her current foster child.(c.2) A person commits the offense of improper sexual contact by a person in a position of trust in the second degree when a person in a position of trust engages in sexual contact, excluding sexually explicit conduct, with a minor for whom he or she has entered into an agreement entrusting him or her with the responsibility of education and supervision of such minor.(d) Consent of the victim shall not be a defense to a prosecution under this Code section.(e)(1) This Code section shall not apply to sexually explicit conduct or sexual contact between individuals lawfully married to each other.(2) This Code section shall not apply to a student who is enrolled at the same school as the victim.(f) A person convicted of improper sexual contact by employee or agent in the first degree, improper sexual contact by a person in a position of trust in the first degree, or improper sexual contact by a foster parent in the first degree shall be punished by imprisonment for not less than one nor more than 25 years and by a fine not to exceed $100,000.00; provided, however, that: (1) Except as provided in paragraph (2) of this subsection, any person convicted of the offense of improper sexual contact by employee or agent, improper sexual contact by a person in a position of trust in the first degree, or improper sexual contact by a foster parent with a child under the age of 16 years shall be punished by imprisonment for not less than ten nor more than 30 years and a fine not to exceed $100,000.00 and shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2; and(2)(A) If at the time of the offense the victim of the offense is at least 14 years of age but less than 21 years of age and the person is 21 years of age or younger and is no more than 48 months older than the victim, such person shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.(B) If at the time of the offense the victim of the offense is under the age of 16 and the act physically injures the victim or involves an act of sodomy, the offense shall be punished by imprisonment for not less than 25 nor more than 50 years and a fine not to exceed $100,000.00 and shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.(g) A person convicted of improper sexual contact by employee or agent in the second degree, improper sexual contact by a person in a position of trust in the second degree, or improper sexual contact by a foster parent in the second degree shall be punished as for a misdemeanor of a high and aggravated nature and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2; provided, however, that:(1) Except as provided in paragraphs (2) and (3) of this subsection, any person convicted of the offense of improper sexual contact by employee or agent in the second degree, improper sexual contact by a person in a position of trust in the second degree, or improper sexual contact by a foster parent in the second degree with a child under the age of 16 years shall be punished by imprisonment for not less than five nor more than 25 years and by a fine not to exceed $25,000.00 and shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2;(2) If at the time of the offense the victim of the offense is at least 14 years of age but less than 21 years of age and the person is 21 years of age or younger and is no more than 48 months older than the victim, such person shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2; and(3) Except as provided in paragraph (2) of this subsection, upon a second or subsequent conviction of the offense of improper sexual contact by employee or agent in the second degree, improper sexual contact by a person in a position of trust in the second degree, or improper sexual contact by a foster parent in the second degree, the person shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than five years and shall be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.(h)(1) As used in this subsection, the term "sexual felony" shall have the same meaning as set forth in paragraph (2) of subsection (j) of Code Section 16-5-21.(2) Except as provided in paragraph (3) of subsection (g) of this Code section, any person having been previously convicted of a sexual felony who is convicted of the felony offense of improper sexual contact by employee, agent, or foster parent in the first or second degree, shall be punished by imprisonment for life or a split sentence that is a term of imprisonment followed by probation for life. As a condition of probation, the court shall impose the requirement of electronic monitoring as set forth in paragraph (14) of subsection (a) of Code Section 42-8-35.Amended by 2023 Ga. Laws 347,§ 3-9, eff. 5/4/2023, app. to all offenses committed on and after 7/1/2023.Amended by 2022 Ga. Laws 782,§ 16, eff. 5/2/2022.Amended by 2021 Ga. Laws 237,§ 1, eff. 7/1/2021.Amended by 2021 Ga. Laws 190,§ 6, eff. 7/1/2021.Amended by 2020 Ga. Laws 480,§ 1, eff. 1/1/2021.Amended by 2019 Ga. Laws 295,§ 1, eff. 7/1/2019.Amended by 2016 Ga. Laws 625,§ 16, eff. 5/3/2016.Amended by 2015 Ga. Laws 73,§ 5-20, eff. 7/1/2015.Amended by 2011 Ga. Laws 56,§ 5, eff. 7/1/2011.Amended by 2010 Ga. Laws 389,§ 2, eff. 5/20/2010.Amended by 2006 Ga. Laws 571,§ 13, eff. 7/1/2006.