Sb 104 - Carjacking, Fentanyl and "upskirting"
| Citation | Vol. 34 No. 1 |
| Publication year | 2018 |
SB 104 - Carjacking, Fentanyl and "Upskirting"
Katherine H. Krouse
Georgia State University College of Law, khkrouse@gmail.com
Lauren R. Light
Georgia State University College of Law, llight5@student.gsu.edu
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Code Sections: O.C.G.A. §§ 15-11-2 (amended), -505 (amended), 16-5-44.1 (amended), -47 (amended), 16-7-1 (amended), 16-9-5 (amended), 16-11-91 (new), -131 (amended), 16-13-25 (amended), -26 (amended), -30 (amended), -31 (amended), 17-6-1 (amended), -12 (amended), 17-7-130 (amended), 17-10-9.1 (amended), 26-4-115 (amended)
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Bill Number: SB 104
Act Number: 182
Georgia Laws: 2017 Ga. Laws 417
Summary: The Act includes various amendments to Georgia's criminal code. Three changes are most notable. First, the Act designates the offense of hijacking a motor vehicle as hijacking a motor vehicle in the first degree and creates the offense of hijacking a motor vehicle in the second degree. Second, the Act criminalizes the use of a device to film underneath or through an individual's clothing. Lastly, the Act adds the drug Fentanyl and its various analogs to the list of controlled substances.
Effective Date: O.C.G.A. §§ 16-13-25, -26, -30, -31; 26-4-115, May 8, 2017 O.C.G.A. §§ 15-11-2, -505; 16-5-44.1, -47; 16-7-1; 16-9-5; 16- 11-91, -131; 17-6-1, -12; 17-7-130; 17- 10-9.1, July 1, 2017
History
Senate Bill (SB) 104 contains sections from five different criminal bills that the General Assembly eventually combined into one piece of legislation. This Peach Sheet will evaluate three main subparts of SB 104.
HB 9 & SB 45
In 2013, Brandon Lee Gary, a Publix grocery store employee, aimed his cellphone camera underneath a female grocery shopper's skirt and recorded a video.1 Gary did this four different times while
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the victim shopped.2 The State of Georgia charged Gary with a single count of "Unlawful Eavesdropping and Surveillance."3 Although Gary's indictment did not specifically indicate which state statute he allegedly violated, the prosecution insisted Gary violated Code section 16-11-62(2), Georgia's Invasion of Privacy Act.4 Under this Code section, it is illegal for "[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view[.]"5 Gary moved to quash the indictment, arguing "his conduct did not violate the statute" because he filmed under the victim's skirt "as she walked and shopped in the aisles of a public store."6 Therefore, "the victim's activities were not occurring in a private place."7 The trial court, however, rejected Gary's argument and, following a bench trial, convicted Gary of criminal invasion of privacy.8
The Georgia Court of Appeals reversed the decision, interpreting the term "private place" as used in Code section 16-11-62(2) to mean "some physical location, out of public view and in which an individual may reasonably expect to be safe from intrusion or surveillance."9 The court reasoned a specific area of an individual's body is not a "private place" within the meaning of the statute.10 Therefore, Gary was not guilty of criminal invasion of privacy.11 Although the dissent agreed with the majority's definition of "place," it also found "equally clear that 'place,'" by its plain meaning, "may also refer to a part of or location on one's body."12 The dissent further reasoned that the word "place" is susceptible to many different meanings, reading the statute as applying to only one meaning, as the majority did, was "troubling."13 Given the statute's
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"plain and unambiguous language," the dissent concluded Code section 16-11-62(2) criminalized the act of filming up a woman's skirt without her consent.14
Though not convinced by the dissent's definition of "place," the Court of Appeals admitted it was "regrettable" that no law existed at that time to criminalize Gary's "reprehensible conduct."15 The court further indicated, due to a "gap in Georgia's criminal statutory scheme," current laws failed to criminalize "all of the disturbing conduct that has been made possible by ever-advancing technology."16 The Court of Appeals' majority opinion essentially instructed the legislature to create a statute outlawing Gary's actions, which are colloquially known as "upskirting."17 Thus, the Georgia General Assembly soon responded with House Bill (HB) 9 and SB 45, two almost identical bills, to close the gap in the existing law which failed to criminalize Gary's behavior.18
HB 213
Fentanyl drugs are a class of synthetic opioids fifty times more powerful than heroin and one hundred times more powerful than morphine.19 In its pharmaceutical form, fentanyl is often prescribed to patients suffering from advanced stages of cancer to manage their acute and chronic pain.20 However, illicitly-manufactured fentanyl has created a recent surge in fentanyl-related overdoses and deaths across the United States, including in Georgia.21 Illicitly-manufactured fentanyl is increasingly used as a cutting agent with heroin and other potent drugs, a process which creates lethal combinations.22 Illicitly-manufactured fentanyl is often sold as
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counterfeit prescription pills, such as oxycodone or Xanax, containing deadly amounts of fentanyl.23 In many cases, buyers do not even know the counterfeit pills they buy contain fentanyl, a deception that is "proving fatal."24 Termed the "gray death," fentanyl can be absorbed through the skin, and thus, can be lethal even to those who simply come into contact with the drug or its residue.25 Further, fentanyl is so potent that opioid reversal drugs typically used to counteract the effects of an overdose may be useless against it.26
According to the federal Drug Enforcement Administration, the arrival of counterfeit prescription drugs containing fentanyl in the United States is resulting "in an increase in overdoses, deaths, and opiate-dependent individuals."27 The surge in fentanyl use across the United States has already created a crisis situation, with law enforcement reporting more encounters with fentanyl and more overdose deaths due to fentanyl than at any other time since the drug was created in 1959.28 In 2013, no state reported more than 500 law enforcement encounters with fentanyl.29 However, from 2014 to 2015, law enforcement encounters with fentanyl across the United States more than doubled, with eight states reporting more than 500
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encounters in 2015.30 During the same time period, the death rate from synthetic opioids such as fentanyl increased by 72.2%.31
Georgia has also felt the effects of the national fentanyl epidemic. In Georgia alone, fentanyl caused nineteen deaths from January 2016 to May 2017.32 In late April 2017, four people overdosed in Forsyth County in thirty-six hours from fentanyl and other opioid mixtures.33 Similarly, in early June 2017, just after SB 104 was signed, a wave of opioid overdoses swept through middle Georgia, with more than a dozen overdoses reported to local emergency rooms in just forty-eight hours.34 According to the Georgia Bureau of Investigation (GBI), the victims all took the same yellow pills, counterfeit Percocet pain pills containing a mixture of fentanyl and another type of synthetic opioid.35
In 2017, Georgia became one of many states to legislate in reaction to the fentanyl crisis.36 According to Representative Rich Golick (R-40), who sponsored HB 213, the bill responds to the current fentanyl crisis by adding fentanyl to the list of controlled substances under Georgia's drug trafficking statute, Code section 16-13-31.37
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Representative Golick described HB 213 as a "kitchen sink" approach to the fentanyl crisis because the bill includes fentanyl as well as its various derivatives, analogs, and related substances.38 This comprehensive approach will give law enforcement broad prosecutorial power regardless of whether fentanyl or its derivatives are used in isolation or in conjunction with other drugs such as heroin.39 By adding fentanyl and its derivatives to Georgia's controlled substances list, lawmakers hope to combat the recent surge in fentanyl-related overdoses across the state.40 HB 213 seeks to achieve this goal by giving law enforcement the power to prosecute individuals for drug trafficking, not just mere possession charges, if the individuals possess fentanyl or its derivatives.41
HB 67
Georgia, and particularly South Fulton county, has experienced a spike...
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