05 LC 29
1545
House
Bill 13
By:
Representatives Bearden of the
68th
and Franklin of the
43rd
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Code Section 16-6-2 of the Official Code of Georgia Annotated, relating to
sodomy and aggravated sodomy, so as to change the age limitation as it relates
to the offense of aggravated sodomy; to change certain provisions relating to
punishment for aggravated sodomy; to amend Article 2 of Chapter 10 of Title 17
of the Official Code of Georgia Annotated, relating to the death penalty
generally, so as to provide for the imposition of the death penalty for the
offense of aggravated sodomy when the victim is less than 12 years of age; to
change certain provisions relating to the procedure for imposition of the death
penalty; to change certain provisions relating to the requirement of the jury
finding aggravating circumstances and recommending the death penalty prior to
its imposition; to change certain provisions relating to sentencing a person
indicted for a capital offense to life imprisonment or other punishment upon a
plea of guilty; to change certain provisions relating to review of death
sentences by the Supreme Court of Georgia; to provide for related matters; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Code
Section 16-6-2 of the Official Code of Georgia Annotated, relating to sodomy and
aggravated sodomy, is amended by striking the Code section and inserting in lieu
thereof the following:
"16-6-2.
(a)
A person commits the offense of sodomy when he or she performs or submits to any
sexual act involving the sex organs of one person and the mouth or anus of
another. A person commits the offense of aggravated sodomy when he or she
commits sodomy with force and against the will of the other person or when he or
she commits sodomy with a person who is less than
ten
12
years of age. The fact that the person allegedly sodomized is the spouse of a
defendant shall not be a defense to a charge of aggravated sodomy.
(b)
A person convicted of the offense of sodomy shall be punished by imprisonment
for not less than one nor more than 20 years. A person convicted of the offense
of aggravated sodomy
when the
victim is less than 12 years of age shall be punished by death, by imprisonment
for life, or by imprisonment for not less than ten nor more than 30 years; a
person otherwise convicted of the offense of aggravated
sodomy shall be punished by imprisonment
for life or by imprisonment for not less than ten nor more than 30 years. Any
person convicted under this Code section of the offense of aggravated sodomy
shall, in addition, be subject to the sentencing and punishment provisions of
Code Sections 17-10-6.1 and 17-10-7.
(c)
When evidence relating to an allegation of aggravated sodomy is collected in the
course of a medical examination of the person who is the victim of the alleged
crime, the law enforcement agency investigating the alleged crime shall be
financially responsible for the cost of the medical examination to the extent
that expense is incurred for the limited purpose of collecting
evidence."
SECTION
2.
Article
2 of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, relating
to the death penalty generally, is amended by striking subsections (a) and (c)
of Code Section 17-10-30, relating to the procedure for imposition of the death
penalty generally, and inserting in lieu thereof the following:
"(a)
The death penalty may be imposed for the offenses of aircraft hijacking or
treason in any case
or for the
offense of aggravated sodomy when the victim is less than 12 years of
age."
"(c)
The statutory instructions as determined by the trial judge to be warranted by
the evidence shall be given in charge and in writing to the jury for its
deliberation. The jury, if its verdict is a recommendation of death, shall
designate in writing, signed by the foreman of the jury, the aggravating
circumstance or circumstances which it found beyond a reasonable doubt. In
nonjury cases the judge shall make such designation. Except in cases of
treason,
or
aircraft hijacking,
or aggravated
sodomy when the victim is less than 12 years of
age, unless at least one of the statutory
aggravating circumstances enumerated in subsection (b) of this Code section is
so found, the death penalty shall not be
imposed."
SECTION
3.
Said
article is further amended by striking Code Section 17-10-31, relating to the
requirement of the jury finding aggravating circumstances and recommending the
death penalty prior to its imposition, and inserting in lieu thereof the
following:
"17-10-31.
Where,
upon a trial by jury, a person is convicted of an offense which may be
punishable by death, a sentence of death shall not be imposed unless the jury
verdict includes a finding of at least one statutory aggravating circumstance
and a recommendation that such sentence be imposed. Where a statutory
aggravating circumstance is found and a recommendation of death is made, the
court shall sentence the defendant to death. Where a sentence of death is not
recommended by the jury, the court shall sentence the defendant to imprisonment
as provided by law. Unless the jury trying the case makes a finding of at least
one statutory aggravating circumstance and recommends the death sentence in its
verdict, the court shall not sentence the defendant to death, provided that no
such finding of statutory aggravating circumstance shall be necessary in
offenses of
treason,
or
aircraft
hijacking, or
aggravated sodomy when the victim is less than 12 years of
age. This Code section shall not affect a
sentence when the case is tried without a jury or when the judge accepts a plea
of
guilty."
SECTION
4.
Said
article is further amended by striking Code Section 17-10-32, relating to
sentencing a person indicted for a capital offense to life imprisonment or other
punishment upon a plea of guilty, and inserting in lieu thereof the
following:
"17-10-32.
Any
person who has been indicted for an offense punishable by death may enter a plea
of guilty at any time after his
or
her indictment, and the judge of the
superior court having jurisdiction may, in his
or
her discretion, sentence the person to
life imprisonment or to any other punishment authorized by law for the offense
named in the indictment; provided, however, that the judge must find one of the
statutory aggravating circumstances provided in Code Section 17-10-30 before
imposing the death penalty, except in cases of
treason,
or
aircraft
hijacking, or
aggravated sodomy when the victim is less than 12 years of
age."
SECTION
5.
Said
article is further amended by striking subsection (c) of Code Section 17-10-35,
relating to review of death sentences by the Supreme Court of Georgia, and
inserting in lieu thereof the following:
"(c)
With regard to the sentence, the court shall determine:
(1)
Whether the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor;
(2)
Whether, in cases other than
treason,
or
aircraft hijacking,
or aggravated
sodomy when the victim is less than 12 years of
age, the evidence supports the
jurýs
or
judgés
finding of a statutory aggravating circumstance as enumerated in subsection (b)
of Code Section 17-10-30; and
(3)
Whether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant."
SECTION
6.
All
laws and parts of laws in conflict with this Act are repealed.