Georgia Criminal Law – Incest

In major sex offenses, the person charged faces an uphill battle. These types of offenses are inflammatory in our society and many people rush to judgment, deeming the person guilty from the onset. The truth is there are people who are wrongly accused of committing these types of offenses. This article serves to explore the nature of the laws against incest, what the penalties are, and applicable defenses.

The Offense

Under O.C.G.A. § 16-6-22, a person commits the offense of incest when such person engages in sexual intercourse or sodomy, with a person he or she knows he or she is related to by blood or by marriage as follows:

  • Mother and child or stepchild;
  • Father and child or stepchild;
  • Siblings of the whole blood or half blood;
  • Grandparent and grandchild of the whole blood or half blood;
  • Aunt and niece or nephew of the whole blood or half blood; or
  • Uncle and niece or nephew of the whole blood or half blood

The Penalty

Incest is a felony and a conviction will result in between ten and thirty year’s imprisonment. If the victim was under the age of fourteen, the prison term is between twenty-five and fifty years. Furthermore, a person convicted of incest will be required to register as a sex offender.

Defenses

Before we discuss applicable defenses, it is important to know what is not a valid defense to a charge of incest. It is not a defense that the intercourse was consented to by the victim. Consent is invalid where the victim is under the age of fourteen because that child is mentally incapable of giving consent.

One applicable defense to a charge of incest is that no sexual intercourse or sodomy occurred. But how does someone prove something didn’t happen? Evidence tending to establish issues with the victim’s credibility, bias, motives, or perception are beneficial to the defense. Also, one should consider obtaining an expert witness to analyze the case. An expert can assist in performing or rebutting forensic examinations of the alleged victim.

Another possible defense is that the parties involved simply do not meet the relationship required by law. The law is very strict as to which relationships apply and if the relationship falls outside of those stated under the law, a charge of incest will not stand.

Finally, the State has to prove beyond a reasonable doubt that the defendant knows he or she is related to the other person. The law requires proof the defendant knew or should have known they are engaging in intercourse with someone who meets the relationship requirements. However, one cannot simply ignore such a relationship when, under the circumstances, the defendant should reasonably know of such as relationship.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 for a free case evaluation. You’ll a local Atlanta attorney ready to aggressively fight on your behalf.

Sex Offender GPS Monitoring is Unconstitutional

O.C.G.A. 42-1-14 required a person who is classified as a Level 3 sexually dangerous predator to wear and pay for a GPS Monitoring device even if no longer on probation or parole. This Statute allowed the State to monitor the person’s movements for the remainder of his or her life.

Joseph Park & Sex Offender GPS Monitoring

In 2003, Joseph Park was convicted of child molestation and sexual exploitation of a minor. Upon his release from custody in 2011, the Sexual Offender Registration Review Board classified him as a sexually dangerous predator under O.C.G.A. 42-1-14(a)(1). This Statute required Park to wear a GPS monitoring system the rest of his life.

Joseph Park challenged this statute on Constitutional grounds. The Georgia Supreme Court concluded that O.C.G.A. 42-1-14 was an unreasonable search and violated the Fourth Amendment to the United States Constitution.

The Court held that the wearing a GPS monitoring device to track the person’s whereabouts 24/7 for the rest of their life, even after the person has served their entire criminal sentence, constituted a significant intrusion upon the privacy of the individual. This would be an unreasonable warrantless search of an individual who is no longer serving their sentence.

The Georgia Legislature is likely already working to draft a new statute to allow for GPS monitoring for life.

Call us today!

If you are arrested for child molestation or any other sex offense in Georgia, it is imperative that you fight the case and win the case at the trial level. If you plead guilty to child molestation or any sex offense and are on the Georgia Sex Offender Registry, you will likely be restricted and monitored by the State even when your criminal sentence is over. It is vital to put the time, effort and money into fighting your child molestation case on the front end.

If you or a loved one are in need of a lawyer who handles child molestation cases and other sex offenses in Georgia, please email me at mike@peachstatelawyer.com or call 404-581-0999 for a free consultation.

Removal from Sex Offender Registry

Can I get off the Sex Offender Registry in Georgia?

If you are currently on the sex offender registry in Georgia, you can petition a superior court for release pursuant to O.C.G.A. 42-1-19.

You are eligible for removal if you meet one of the following criteria

  1. You have completed all prison, parole, supervised release, and probation for the offense which put you on the Sex Offender Registry AND
    • You are confined to a hospice facility, nursing home, residential care facility or nursing home
    • Are totally and permanently disabled OR
    • Otherwise seriously incapacitated due to illness or injury.
  2. You were sentenced for a crime that subsequently because a misdemeanor offense in Georgia.
  3. You were required to register solely because you were convicted of kidnapping or false imprisonment and the offense did not involve a sexual offense.
  4. You have completed all prison, parole, supervised release, and probation for the offense which put you on the Sex Offender Registry AND
    • Ten years has passed since you completed all prison, parole, supervised release, and probation for the sexual offense OR
    • You are classified as a Level 1 risk assessment classification. If you have not done a risk assessment classification, the court shall order such classification to be completed prior to considering the petition for release.

What does the court considering when considering whether to remove you from the Registry?

The Court can consider:

  1. Any evidence that is presented on your behalf;
  2. Any evidence that is presented by the District Attorney or Sheriff
  3. Any other relevant evidence.

Where do you file your petition for removal from the Sex Offender Registry?

A petition for removal shall be filed in the Superior Court where you were convicted. If you were convicted in another State, then you can file it in the Superior Court where you currently reside.

If your petition is denied, you have to wait 2 years from the date of the final order on your previous petition.

We would be happy to meet with you and discuss whether to file a petition to remove you from the Sex Offender Registry in Georgia. Please call us at 404-581-0999 or email to mike@peachstatelawyer.com