hb314_SCSFA_to_HB314

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07 HB314/SCSFA/1

SENATE SUBSTITUTE TO HB 314

AS PASSED SENATE

A BILL TO BE ENTITLED
AN ACT

To amend Title 16 and Article 2 of Chapter 1 of Title 42 of the Official Code of Georgia Annotated, relating to crimes and offenses and the Sexual Offender Registration Review Board, respectively, so as to change provisions relating to sexual offenses or sexually related offenses; to provide that it shall be unlawful for persons required to register as sexual offenders to photograph a minor under certain circumstances; to provide for penalties; to provide for gender neutrality with regard to the offense of incest; to change certain definitions; to provide for sexual offenders to register with the sheriff of any county where such offender resides, is employed, or is attending an institution of higher education in lieu of only registering in the county of residence and having the sheriff for such county be responsible for forwarding information about such offender to the sheriffs of the counties where such offender is employed or attends an institution of higher education; to require sexual offenders to submit palm prints; to change certain residency requirements for certain sexual offenders; to require the Department of Corrections to forward certain information to sheriffs; to change reporting requirements when a sexual offender is incarcerated; to change provisions relating to the time frame a sheriff has to update certain information; to change certain penalty provisions; to change provisions relating to restrictions on where sexual offenders and sexually dangerous predators may reside, work, and volunteer; to provide a mechanism for certain elderly and disabled sexual offenders to petition the superior court to be released from certain residency requirements; to amend Code Section 24-4-60 of the Official Code of Georgia Annotated, relating to requirement for DNA analysis of blood of persons convicted of certain sex offenses or convicted of a felony and incarcerated in a state correctional facility, so as to provide for DNA analysis of persons convicted of certain felonies and sexual offenses who are placed on probation; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, is amended by revising subsection (a) of Code Section 16-6-22, relating to incest, as follows:

"(a) A person commits the offense of incest when the such person engages in sexual intercourse or sodomy, as such term is defined in Code Section 16-6-2, with a person to whom he or she knows he or she is related to either by blood or by marriage as follows:

(1) Father and daughter or stepdaughter child or stepchild;

(2) Mother and son or stepson child or stepchild;

(3) Sibling Brother and sister of the whole blood or of the half blood and sibling of the whole blood or of the half blood;

(4) Grandparent and grandchild;

(5) Aunt and niece or nephew; or

(6) Uncle and niece or nephew."

SECTION 1.1.

Said title is further amended by revising Part 2 of Article 3 of Chapter 12, relating to offenses related to minors generally, by adding a new Code section to the end of the part to read as follows:

"16-12-100.4.

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

(1) 'Minor' means any individual who is under 18 years of age.

(2) 'Photograph' means any picture, film or digital photograph, motion picture film, videotape, or similar visual representation or image of a person.

(b) It shall be unlawful for any person who is required to register as a sexual offender pursuant to Code Section 42-1-12 to intentionally photograph a minor without consent of the minor´s parent or guardian.

SECTION 2.
Code Section 24-4-60 of the Official Code of Georgia Annotated, relating to requirement for DNA analysis of blood of persons convicted of certain sex offenses or convicted of a felony and incarcerated in a state correctional facility, is revised as follows:

"24-4-60.

(a) As used in subsection (b) of this Code section, the term 'state correctional facility' means a penal institution under the jurisdiction of the Department of Corrections, including inmate work camps and inmate boot camps; provided, however, that such term shall not include a probation detention center, probation diversion center, or probation boot camp under the jurisdiction of the Department of Corrections.

(b) Any person convicted of a criminal offense defined in Code Section 16-6-1, relating to the offense of rape; Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-3, relating to the offense of statutory rape; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; Code Section 16-6-5.1, relating to the offense of sexual assault against persons in custody, sexual assault against a person detained or a patient in a hospital or other institution, or sexual assault by a practitioner of psychotherapy against a patient; Code Section 16-6-6, relating to the offense of bestiality; Code Section 16-6-7, relating to the offense of necrophilia; or Code Section 16-6-22, relating to the offense of incest, shall have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. In addition, on and after July 1, 2000, any person convicted of a felony and incarcerated in a state correctional facility shall at the time of entering the prison system have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony prior to July 1, 2000, and who currently is incarcerated in a state correctional facility in this state for such offense. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony in this state on or after July 1, 2000, and who is incarcerated in a private correctional facility in this state for such offense pursuant to a contract with the Department of Corrections upon entering the facility, and for any person convicted of a felony prior to July 1, 2000, and who is incarcerated in a private correctional facility in this state pursuant to contract with the Department of Corrections. The analysis shall be performed by the Division of Forensic Sciences of the Georgia Bureau of Investigation. The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-4-63.

(c)(1) On and after July 1, 2007, any person who is placed on probation shall have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person if such person is convicted of a felony violation of any of the following:

(A) Chapter 5 of Title 16, relating to crimes against persons;

(B) Code Section 16-6-1, relating to the offense of rape;

(D) Code Section 16-6-3, relating to the offense of statutory rape;

(E) Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation;

(F) Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes;

(G) Code Section 16-6-5.1, relating to the offense of sexual assault against persons in custody, sexual assault against a person detained or a patient in a hospital or other institution, or sexual assault by a practitioner of psychotherapy against a patient;

(H) Code Section 16-6-6, relating to the offense of bestiality;

(I) Code Section 16-6-7, relating to the offense of necrophilia;

(J) Code Section 16-6-22, relating to the offense of incest;

(K) Code Section 16-7-1, relating to the offense of burglary;

(L) Code Section 16-8-40, relating to the offense of robbery;

(M) Code Section 16-8-41, relating to the offense of armed robbery;

(N) Code Section 16-10-23, relating to the offense of impersonating an officer;

(O) Code Section 16-10-24, relating to the offense of obstruction of an officer;

(P) Article 4 of Chapter 11 of Title 16, relating to dangerous instrumentalities and practices; and

(Q) Chapter 13 of Title 16, relating to controlled substances.

(2) The analysis shall be performed by the Division of Forensic Sciences of the Georgia Bureau of Investigation. The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-4-63. The Department of Corrections shall be responsible for collecting such sample."

SECTION 3.

Article 2 of Chapter 1 of Title 42 of the Official Code of Georgia Annotated, relating to the Sexual Offender Registration Review Board, is amended in Code Section 42-1-12, relating to the State Sexual Offender Registry, by revising paragraphs (1) and (6) of subsection (a) and subparagraphs (a)(16)(A) and (a)(16)(C) as follows:

"(1) 'Address' means the street or route address of the sexual offender´s residence. For purposes of this Code section, the term does not mean a post office box, and homeless or in a vehicle does not constitute an address."

"(6) 'Child care facility' means all public and private pre-kindergarten facilities, day-care centers, child care learning centers, preschool facilities, and long-term care facilities for children. Such term shall not include private, in-home child day care which is not licensed by this state."

"(A) Name; social security number; age; race; sex; date of birth; height; weight; hair color,; eye color,; fingerprints; palmprints; and photograph;"

"(C) If the place of residence is a motor vehicle or trailer, provide the vehicle identification number, the license tag number, and a description, including color scheme, of the motor vehicle or trailer Reserved;"

SECTION 4.

Said article is further amended in Code Section 42-1-12, relating to the State Sexual Offender Registry, by revising paragraphs (3), (6), and (8) of subsection (b) as follows:

"(3) Inform the sexual offender that, if the sexual offender changes any of the required registration information, other than residence address, place of employment, or enrollment at an institution of higher education, the sexual offender shall give the new information to the sheriff of the each county with whom the sexual offender is registered within 72 hours of the change of information; if the information is the sexual offender´s new residence address, change in employment location, or change in where the sexual offender is attending an institution of higher education, the sexual offender shall give the information to the sheriff of the each county with whom the sexual offender last registered within 72 hours prior to moving or changing employment or attendance at an institution of higher education and to the sheriff of the county to which the sexual offender is moving or changing employment or attendance at an institution of higher education within 72 hours after the change of information;"

"(6) Obtain fingerprints, palm prints, and a current photograph of the sexual offender;"

"(8) At least 30 days prior to such release, obtain Obtain and forward any information obtained from the clerk of court pursuant to Code Section 42-5-50 to the sheriff´s office of the county in which the sexual offender will reside; and"

SECTION 5.

Said article is further amended in Code Section 42-1-12, relating to the State Sexual Offender Registry, by revising paragraph (3) of subsection (c) as follows:

"(3) Forward the sexual offender´s fingerprints and photograph, at least 30 days prior to the sexual offender´s release from prison, placement on parole, supervised release, or probation, the following information to the sheriff´s office of the county where the sexual offender is going to reside:

(A) The sexual offender´s fingerprints, palm prints, and photograph;

(B) The sexual offender´s crime of conviction, including conviction date and the jurisdiction of the conviction; and

SECTION 6.

Said article is further amended in Code Section 42-1-12, relating to the State Sexual Offender Registry, by revising subsection (f) as follows:

"(f) Any sexual offender required to register under this Code section shall:

(1) Provide the required registration information to the appropriate official before being released from prison or placed on parole, supervised release, or probation;

(2) Register in person with the sheriff of the each county in which the sexual offender resides, is employed, or attends an institution of higher education within 72 hours after the sexual offender´s release from prison or placement on parole, supervised release, probation, or entry into this state;

(3) Maintain the required registration information with the sheriff of the each county in which the sexual offender resides, is employed, or attends an institution of higher education;

(4) Renew the required registration information with the sheriff of the each county in which the sexual offender resides, is employed, or attends an institution of higher education by reporting in person to the sheriff within 72 hours prior to such offender´s birthday each year to be photographed, and fingerprinted, and palm printed; provided, however, that such offender shall only be photographed, fingerprinted, and palm printed in the county where such offender resides;

(5) Update the required registration information with the sheriff of the each county in which the sexual offender resides, is employed, or attends an institution of higher education within 72 hours of any change to the required registration information, other than residence address, place of employment, or enrollment at an institution of higher education; if the information is the sexual offender´s new residence address, change in employment location, or change in where the sexual offender is attending an institution of higher education, the sexual offender shall give the information to the sheriff of the each county with whom the sexual offender last registered within 72 hours prior to any change of residence address, place of employment, or enrollment at an institution of higher education, and to the sheriff of the county to which the sexual offender is moving within 72 hours after establishing the new residence;

(6) If convicted of a dangerous sexual offense on or after July 1, 2006, pay to the sheriff of the county where the sexual offender resides an annual registration fee of $250.00 upon each anniversary of such registration; and

(7) Continue to comply with the registration requirements of this Code section for the entire life of the sexual offender, including excluding ensuing periods of incarceration."

SECTION 7.

Said article is further amended in Code Section 42-1-12, relating to the State Sexual Offender Registry, by revising paragraphs (1), (3), (4), and (6) of subsection (i) as follows:

"(1) Prepare and maintain a list of all sexual offenders and sexually dangerous predators residing, working, or attending an institution of higher education in each county. Such list shall include the sexual offender´s name; age; physical description; address; crime of conviction, including conviction date and the jurisdiction of the conviction; photograph; and the risk assessment classification level provided by the board, and an explanation of how the board classifies sexual offenders and sexually dangerous predators;"

"(3) Maintain and post a list of every sexual offender residing, working, or attending an institution of higher education in each county and electronically submit and update such list for posting:

(A) In the sheriff´s office;

(B) In any county administrative building;

(D) In the office of the clerk of the superior court so that such list is available to the public; and

(E) On a website maintained by the sheriff of the county for the posting of general information;

(4) Update the public notices required by paragraph (3) of this Code section within two working five business days;"

"(6) Update the list of sexual offenders residing, working, or attending an institution of higher education in the county upon receipt of new information affecting the residence address, employment, or attendance at an institution of higher education of a sexual offender or upon the registration of a sexual offender moving into the county, gaining employment in the county, becoming enrolled in an institution of higher education in the county, or by virtue of release from prison, relocation from another county, conviction in another state, federal court, military tribunal, or tribal court. Such list, and any additions to such list, shall be delivered, within 72 hours of updating the list of sexual offenders residing in the county, to all schools or institutions of higher education located in the county;"

SECTION 8.

Said article is further amended in Code Section 42-1-12, relating to the State Sexual Offender Registry, by revising paragraph (1) of subsection (j) as follows:

"(j)(1) The sheriff of the county where the sexual offender resides or last registered shall be the primary law enforcement official charged with communicating the whereabouts of the sexual offender and any changes in required registration information to the sheriff´s office of the county or counties where the sexual offender is employed, volunteers, attends an institution of higher education, or moves."

SECTION 9.

Said article is further amended in Code Section 42-1-12, relating to the State Sexual Offender Registry, by revising subsection (n) as follows:

"(n) Any individual who:

(1) Is required to register under this Code section and who fails to comply with the requirements of this Code section;

(2) Provides false information; or

(3) Fails to respond directly to the sheriff of the county where he or she resides, is employed, or is attending an institution of higher education within 72 hours of such individual´s birthday

shall be guilty of a felony and shall be punished by imprisonment for not less than ten nor more than 30 years; provided, however, that upon the conviction of the second offense under this subsection, the defendant shall be punished by imprisonment for life."

SECTION 10.

Said article is further amended by revising Code Section 42-1-15, relating to the restrictions on registered sexual offenders residing, working, or loitering within certain areas, the penalties for violations, and civil causes of actions, as follows:

"42-1-15.

(a)(1) No individual who is required to register pursuant to Code Section 42-1-12 shall reside or loiter within 1,000 feet of any child care facility, church, school, or area where minors congregate. Such distance shall be determined by measuring from the outer boundary of the property structure or dwelling on which the individual resides to the outer boundary of the property of the child care facility, church, school, or area where minors congregate at their closest points.

(2) A superior court may issue an order releasing an individual who is required to register pursuant to Code Section 42-1-12 from the residency requirements of this subsection if the individual or someone acting on behalf of the individual petitions the superior court of the jurisdiction in which such individual resides to be released from the residency requirements of this subsection, the court finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense, and the individual:

(A) Resides in a hospice facility, skilled nursing home, residential care facility for the elderly, or nursing home;

(B) Is totally and permanently disabled as such term is defined in Code Section 49-4-80;

(D) Is 75 years of age or older and at least ten years have elapsed since the date of release from prison or placement on parole, supervised release, or probation.

(b)(1) No individual who is required to register under Code Section 42-1-12 shall be employed by or volunteer at any child care facility, school, or church or by or at any business or entity that is located within 1,000 feet of a child care facility, a school, or a church. Such distance shall be determined by the location in which such individual actually carries out or performs the functions of his or her job.

(2) No individual who is a sexually dangerous predator shall be employed by any business or entity that is located within 1,000 feet of an area where minors congregate. Such distance shall be determined by the location in which the sexually dangerous predator actually carries out or performs the functions of his or her job.

(c) Notwithstanding any ordinance or resolution adopted pursuant to Code Section 16-6-24 or subsection (d) of Code Section 16-11-36, it shall be unlawful for any individual required to register pursuant to Code Section 42-1-12 to loiter, as prohibited by Code Section 16-11-36, at any child care facility, school, or area where minors congregate.

(d) Any sexual offender who knowingly violates the provisions of this Code section shall be guilty of a felony and shall be punished by imprisonment for not less than ten nor more than 30 years.

(e) Nothing in this Code section shall create, either directly or indirectly, any civil cause of action against or result in criminal prosecution of any person, firm, corporation, partnership, trust, or association other than an individual required to be registered under Code Section 42-1-12."

SECTION 11.

All laws and parts of laws in conflict with this Act are repealed.