CHILD MOLESTATION CHARGES IN GEORGIA

For over twenty years, our firm has successfully defended people who were facing child molestation charges, aggravated child molestation charges, and other sex offenses relating to children across the state of Georgia.

Child molestation charges are obviously very serious, and can be one of the most difficult criminal cases to properly defend. Our firm has decades of experience in winning these cases at trial. We have developed an effective approach to these cases through the use of qualified experts and investigators, proven defense theories, and unmatched persistence to help our clients respond to false allegations of child molestation.

We have won “not guilty” verdicts for clients charged with child molestation and aggravated child molestation in courts across Georgia, and have convinced prosecutors to dismiss charges when the allegations were not supported by sufficient evidence.

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We have successfully represented clients in serious criminal cases across the United States. Our firm has offices in Atlanta GA and Brunswick GA, and we frequently travel to other courts across the state to represent people in serious criminal cases.

Under Georgia law, the charge of child molestation (O.C.G.A. § 16-6-4) involves allegations that a person either, (a) sexually or inappropriately touched a child under the age of 16 or engages in sexual conduct while in the child’s presence; or (b) electronically sends images of sexually explicit conduct to a child under 16 years old, with the intent to arouse the person or the child. A person may also be charged with aggravated child molestation when the person commits an act of child molestation and physically injures the child, or it involves an act of sodomy.

A person can be charged with child molestation in a variety of circumstances which fall under two general categories: (1) the person does any immoral or indecent act to, in the presence of, or with a child under 16 years of age with the intent to sexually arouse or satisfy the sexual desires of the child or the person; or (2) electronically transmits images of a person engaged in, inducing, or otherwise participating in an immoral or indecent act to a child under 16 years old, with the intent to sexually arouse the child or the person.

The statute does not define “immoral or indecent acts” but courts have interpreted it to mean acts that are viewed as morally improper or offensive and acts which offend against the public’s sense of decency. Some examples of conduct that may be considered immoral or indecent include touching a female child’s breast or vagina or a male child’s penis, making a child touch an adult’s private parts, an adult masturbating or having sex with another person while a child is present in the same room, or a person inserting finger(s) in a female child’s vagina (which can also lead to aggravated sexual battery charges).

A “child” in this context is someone who is 15 years old or younger. This is because in the State of Georgia, the age of consent—the age a person may legally engage in sexual intercourse—is 16 years or older. Another important element the state must prove beyond a reasonable doubt is the intent of the accused. The accused must have acted with the intent or purpose of arousing or satisfying the sexual desires of either the child or the accused himself. It does not matter if the child or adult is in fact aroused or satisfied, only that the person acted with this purpose in mind. For that reason, intent is generally not difficult for the state to prove and is oftentimes inferred from a person’s conduct itself.

If convicted, the punishment for child molestation varies based on the age of the victim, the age of the accused, and whether the accused has been previously convicted of child molestation. Upon a first conviction for child molestation, a person can be sentenced to 5-20 years imprisonment with at least one year to be served on probation. If convicted of a second or subsequent child molestation charge, a person can be sentenced to 10-30 years imprisonment with at least one year to be served on probation or sentenced to life imprisonment. However, the state must provide written notice before trial begins if they intend to seek a lifetime prison sentence. Regardless of the sentence the person will also be required to register as a sex offender within 72 hours after being released from any period of incarceration and comply with all registry requirements and restrictions. Lastly, if the victim is at least 14 but less than 16 years old and the accused is 18 years old or younger and no more than 4 years older than the victim, the accused will be convicted of a misdemeanor rather than a felony.

It is important to distinguish child molestation from aggravated child molestation because the potential punishment for each offense is vastly different. A person can be charged with aggravated child molestation (O.C.G.A. § 16-6-4(c)) if the person physically injures the child while engaging in sexual conduct with the child (i.e., committing an act of child molestation) or commits an act of sodomy to the child.

Aggravated child molestation is a separate offense that requires different elements of proof. The state must prove:

• An act of child molestation occurred, meaning a person:
  1. Committed any immoral or indecent act,
  2. said act was to, in the presence of, or with a child,
  3. the child was under 16 years of age, and
  4. the person’s intent was to sexually arouse or satisfy the sexual desires of the child or the person; and
• the act physically injures the child; or
• the act involves sodomy.

If a person inflicts physical pain on the child while molesting the child, they can be charged with aggravated child molestation. In Georgia, an act of sodomy is one that involves the sex organs of one person and the mouth or anus of another. In the aggravated child molestation context, examples include the accused giving the child oral sex or making the child give the accused oral sex or engaging in anal sex. Notably, if the act of sodomy was done by physical force and against the child’s will, the person can also be charged with aggravated sodomy which carries a potential sentence of 25 years to life imprisonment.

The punishment for aggravated child molestation is much more severe than that for child molestation. If convicted, a person will be sentenced to imprisonment for life or 25 years or more followed by probation for life after release from prison. Being sentenced to 25 years or more is a true mandatory minimum. This means that the court has no authority to shorten any part of the 25-year prison sentence. Furthermore, while in prison there is no way to reduce the sentence below 25 years. For most crimes, a person can get days off their sentence or otherwise reduce their time in prison for good behavior, participating in work release, or living in halfway houses for a period of time, among other programs. None of these programs are available to those sentenced for aggravated child molestation. Furthermore, the first 25 years of the sentence cannot be reduced by being released on parole. If a person is sentenced to life imprisonment, they must serve at least 30 years before being eligible for parole. If or when the person is released, they will be on probation for the remainder of their life and will also be required to register as a sex offender.

On the other hand, age of the victim and the accused play a role in sentencing of a person convicted to aggravated child molestation. If, (1) the victim is at least 13 but less than 16 years old, (2) the accused is 18 years old or younger, (3) the accused is no more than 4 years older than the victim, and (4) the basis of the aggravated child molestation conviction is sodomy (not aggravated sodomy), the accused will be convicted for a misdemeanor rather than a felony.

It is important to note that the evidence or proof required to be charged with child molestation or aggravated child molestation can be very limited or minimal. A child’s uncorroborated story that he or she has been sexually abused by an adult at a specific place during some general timeframe is enough to bring charges. Physical evidence or DNA is not required. In fact, in many child molestation cases, there is no physical evidence either due to a delayed disclosure by the child or the nature of the act, such as touching, leaves no physical trace.

Defenses against child molestation charges are limited. They include things such as an alibi (proof the accused was elsewhere when the alleged act occurred) and medical necessity (touching a child’s private parts while conducting a medically necessary exam, for example). DNA evidence that does not match the accused can sometimes be used as a defense as well depending where, when and under what circumstances the DNA was found.

Generally, defending against child molestation charges is more about the proof or evidence of the crime, or lack thereof, than it is about offering traditional defenses. There are many ways to attack the evidence in a child molestation case, but a few of the most common bases are:

• There are prior inconsistent statements about what happened. Generally, when a child reports he or she has been molested, they may have to disclose the details of the alleged abuse to a variety of different people over an extended period such as a parent, a police officer, a doctor, a psychologist, etc. If the statements the child gives about the abuse changes with every person they tell, a defendant can use that to suggest the child fabricated the story or parts of the story. For example, if the child reports to a police officer than he was touched inappropriately at least 100 times but tells a counselor it only happened 5 or 6 times, that is a major detail unlikely to be forgotten or confused about. However, how much details about the abuse vary and how reasonable that variance may be is largely dependent on the victim’s age. A 13-year-old reporting the number of times the abuse occurred was either 5 or 100 times is more suspicious than a 4- or 5-year-old reporting the same.
• There is evidence of prior false accusations. If there is evidence that the alleged victim has previously reported being molested and those accusations turned out to be false, the defense can use that to suggest to the jury that the current charges are also false allegations.
• There is evidence suggesting that the victim has accused the wrong person. This may occur in situations where the child’s abuser is a parent, relative or other adult that the child is close to. The history of other individuals in the child’s life may cast doubt on whether the child is pointing the finger at the accused due to fear of accusing the child’s actual abuser. For example, a 13-year-old accuses their stepfather of touching them inappropriately. The biological father whom the child does not live with but spends time with has a history of violent behavior and was previously arrested on child molestation charges but never convicted. The defense may be able to use this information to cast doubt on whether the stepfather is actually the abuser or whether it’s the child’s biological father and the child is too scared to tell on her dad.
• The accusation was made during the midst of a hostile divorce or child custody dispute. Sadly, sometimes when two parents get divorced or separate, they use their minor child as a tool to either make the other parent’s life miserable or to gain an advantage in a strongly contested custody battle. They may go as far as to force the child to make abuse or molestation accusations against the other parent. The accusing parent generally does this by coaching the child to repeat a story about the other parent inappropriately touching the child. They may bribe and reward the child with toys, candy, trips, and other things the child loves for correctly repeating the story. The younger the child is, the easier it is to coach the child to tell others the false story. There are several ways to try to prove the allegations are false and the child was coached by the accusing parent. Investigating the background of the accusing parent and any relatives or a significant other may show a history or lying or false allegations. If the child is repeating the story virtually verbatim every single time they are asked what happened (like it was memorized), that may also be a sign of coaching.

The information provided above is a very general summary of Georgia law on child molestation and related offenses at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult a Georgia criminal defense lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all state and federal courts in Georgia.

When defending someone falsely accused of child molestation, our firm usually retains well-respected forensic interview experts, investigators and sometime pediatricians and other medical experts to review the evidence and assist our clients in preparing a solid defense.

Our defense attorneys have won over a dozen jury trials for clients accused of child molestation. We have also helped some of our clients avoid charges completely when we were able to convince prosecutors that evidence was insufficient to bring criminal charges.

If you or someone you know has been falsely charged with child molestation or aggravated child molestation, contact us to see if we may be able to help. The earlier we can start preparing a defense to these serious charges, the more likely it is we can help someone avoid a wrongful conviction.

It is important to remember that false allegations can and do lead to convictions. That’s why it is absolutely necessary to hire an experienced criminal defense attorney who will defend your rights and fight for your interests. Our firm has successfully represented those falsely accused of child molestation for many years.

If you or someone you know has been falsely accused of child molestation or aggravated child molestation, give us a call and we will let you know if we can help.