25 LC 48 1572S
House Bill 582 (COMMITTEE SUBSTITUTE)
By: Representatives Gunter of the 8
th
, Reeves of the 99
th
, New of the 40
th
, Hong of the 103
rd
,
Smith of the 18
th
, and others
A BILL TO BE ENTITLED
AN ACT
To amend Titles 16, 17, and 24 of the Official Code of Georgia Annotated, relating to crimes
1
and offenses, criminal procedure, and evidence, respectively, so as to provide for defendants2
to support a justification defense by offering evidence of family violence, dating violence,3
or child abuse committed by the alleged victim; to provide for petitions for the opportunity4
to present such evidence; to revise provisions for the defense of coercion and to provide for5
the application of such defense in all criminal cases; to provide for resentencing for certain6
murder convictions; to provide a privilege for participation in victim centered programs and7
victim-offender dialogues; to provide for definitions; to provide for limitations; to provide8
for civil immunity for facilitators in certain circumstances; to provide for a short title; to9
provide for related matters; to repeal conflicting laws; and for other purposes.10
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:11
SECTION 1.12
This Act shall be known and may be cited as the "Georgia Survivor Justice Act."13
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SECTION 2.
14
Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, is15
amended in Article 2 of Chapter 3, relating to justification and excuse under defenses to16
criminal prosecutions, by revising subsection (d) of Code Section 16-3-21, relating to use of17
force in defense of self or others and evidence of belief that force was necessary in murder18
or manslaughter prosecution, as follows:19
"(d) In a prosecution for murder or manslaughter
any offense prohibited under Chapter 520
of this title, if a defendant raises as a defense a justification provided by subsection (a) of21
this Code section, the defendant shall be permitted to offer relevant evidence that the22
defendant had been subjected to acts of family violence, dating violence, or child abuse23
committed by the alleged victim, as such acts are described in Code Sections 19-13-1,24
19-13A-1, and 19-15-1, respectively, in order to establish the defendant's reasonable belief25
that the threat or use of force or deadly force was immediately necessary, may be permitted26
to offer:27
(1) Relevant evidence that the defendant had been the victim of acts of family violence28
or child abuse committed by the deceased, as such acts are described in Code Sections29
19-13-1 and 19-15-1, respectively; and30
(2) Relevant expert testimony regarding the condition of the mind of the defendant at the31
time of the offense, including those relevant facts and circumstances relating to the family32
violence or child abuse that are the bases of the expert's opinion. Relevant evidence33
includes, but is not limited to:34
(1) Evidence pertaining to the alleged victim's prior acts, including, but not limited to:35
(A) Evidence indicating the defendant sought law enforcement assistance;36
(B) Evidence indicating the defendant sought services from a counselor, social worker,37
domestic violence program, or other relevant agency or service provider;38
(C) Evidence indicating the defendant sought medical attention;39
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(D) Evidence of the effects of battering and post-traumatic stress disorder on the40
defendant; and41
(E) Temporary protective order petitions, ex parte orders, and final orders in which the42
alleged victim is the respondent;43
(2) Expert testimony, including, but not limited to, testimony as to relevant facts and44
circumstances relating to the family violence, dating violence, or child abuse, as such acts45
are described in Code Sections 19-13-1, 19-13A-1, and 19-15-1, respectively, that are the46
bases of such expert's opinion; and47
(3) Any other evidence the court determines is of sufficient credibility or probative48
value."49
SECTION 3.50
Said title is further amended in said article by revising Code Section 16-3-26, relating to51
coercion, as follows:52
"16-3-26.53
A person is not guilty of a crime, except malice murder, if the act upon which the supposed54
criminal liability is based is performed under such coercion that the person he or she55
reasonably believes that performing the act is the only way necessary to prevent his56
imminent death or great bodily injury to himself or herself or a third person."57
SECTION 4.58
Said title is further amended in Article 1 of Chapter 5, relating to homicide, by revising59
subsection (e) of Code Section 16-5-1, relating to murder, malice murder, felony murder, and60
murder in the second degree, as follows:61
"(e)(1) A person convicted of the offense of murder shall be punished by death, by62
imprisonment for life without parole, or by imprisonment for life.63
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(2) A person convicted of the offense of murder in the second degree shall be punished
64
by imprisonment for not less than ten nor more than 30 years.65
(3) A person convicted of the offense of murder under subsection (c) of this Code section
66
and sentenced under paragraph (1) of this subsection shall be resentenced under67
paragraph (2) of this subsection if the felony offense that was the predicate for such68
conviction was cruelty to children in the second degree occurring prior to July 1, 2004."69
SECTION 5.70
Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is71
amended in Article 1 of Chapter 10, relating to procedure for sentencing and imposition of72
punishment, by revising subsection (f) of Code Section 17-10-1, relating to fixing of73
sentence, suspension or probation of sentence, change in sentence, eligibility for parole,74
prohibited modifications, and exceptions, as follows:75
"(f)(1) Within one year of the date upon which the sentence is imposed, or within 12076
days after receipt by the sentencing court of the remittitur upon affirmance of the77
judgment after direct appeal, whichever is later, the court imposing the sentence has the78
jurisdiction, power, and authority to correct or reduce the sentence and to suspend or79
probate all or any part of the sentence imposed. The time periods prescribed in this80
subsection require the defendant to file a motion within such time periods; however, the81
court shall not be constrained to issue its order or hear the matter within such time82
periods. Prior to entering any order correcting, reducing, or modifying any sentence, the83
court shall afford notice and an opportunity for a hearing to the prosecuting attorney. 84
Any order modifying a sentence which is entered without notice and an opportunity for85
a hearing as provided in this subsection shall be void. This subsection shall not limit any86
other jurisdiction granted to the court in this Code section or as provided for in subsection87
(g) of Code Section 42-8-34.88
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(2)(A) A person who is serving a sentence may submit a petition to the court89
requesting to be sentenced under Code Section 17-10-22. Such petition shall be served90
upon the district attorney. The state shall file its response, if any, within 60 days of91
being served with such petition.92
(B) There shall be a presumption in favor of granting a hearing on a petition filed93
pursuant to this paragraph unless the court determines that there is a lack of94
circumstantial guarantees of trustworthiness, an inherent unreliability of the facts95
asserted, or a deficiency in the factual allegations in the petition. If the court decides96
that the petitioner is not entitled to a hearing, the court shall enter an order denying97
relief and shall include written findings of fact outlining the reasons for such order.98
(C) A hearing on a petition filed pursuant to this paragraph, if granted, shall be99
scheduled not more than 90 days from the date such petition is filed. The state shall be100
given notice and the opportunity to respond at any such hearing.101
(D)(i) If, based upon evidence presented at the hearing, the court determines that the102
petitioner has met the criteria provided in subsection (b) of Code Section 17-10-22,103
the court shall enter an order reducing the defendant's sentence pursuant to104
subsection (c) of Code Section 17-10-22.105
(ii) If, based upon the petition or evidence presented at the hearing, the court106
determines that the petitioner has not met the criteria provided in subsection (b) of107
Code Section 17-10-22, the court shall notify the petitioner, dismiss his or her petition108
without prejudice, and enter an order to such effect. Such an order shall include109
written findings of fact outlining the reasons for such order.110
(E) Any order issued by a court pursuant to this paragraph shall include written111
findings of fact and the reasons for such order.112
(F) Any judgments pursuant to this paragraph shall be final judgments and appealable113
under Code Section 5-6-34."114
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SECTION 6.
115
Said title is further amended in said article by adding a new Code section to read as follows:116
"17-10-22.
117
(a) At the time of sentencing, the defendant may present evidence that he or she was118
subjected to acts of family violence, dating violence, or child abuse, as such acts are119
described in Code Sections 19-13-1, 19-13A-1, and 19-15-1, respectively, and that such120
acts were a significant contributing factor to the offense for which the defendant is being121
sentenced. The rules of evidence shall apply to such presentation of evidence except that122
the following evidence shall be admissible:123
(1) Hearsay;124
(2) Character evidence;125
(3) Evidence indicating the defendant sought law enforcement assistance;126
(4) Evidence indicating the defendant sought services from a counselor, social worker,127
domestic violence program, or other relevant agency or service provider;128
(5) Evidence indicating the defendant sought medical attention;129
(6) Evidence of prior statements regarding the acts of family violence, dating violence,130
or child abuse, as such acts are described in Code Sections 19-13-1, 19-13A-1, and131
19-15-1, respectively;132
(7) Evidence of the effects of battering and post-traumatic stress disorder on the133
defendant;134
(8) Evidence pertaining to the alleged perpetrator's history of other acts of family135
violence, dating violence or child abuse, as such acts are described in Code Sections136
19-13-1, 19-13A-1, and 19-15-1, respectively, including, but not limited to, temporary137
protective order petitions, ex parte orders, and final orders in which the alleged138
perpetrator is the respondent;139
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(9) Expert testimony, including facts and circumstances relating to the family violence,140
dating violence, or child abuse, as such acts are described in Code Sections 19-13-1,141
19-13A-1, and 19-15-1, respectively, that are the bases of such expert's opinion; and142
(10) Any other evidence that the court determines is of sufficient credibility or probative143
value.144
(b) The court shall impose a sentence as provided in subsection (c) of this Code section145
if the court finds that:146
(1) The defendant was subjected to acts of family violence, dating violence, or child147
abuse, as such acts are described in Code Sections 19-13-1, 19-13A-1, and 19-15-1,148
respectively, and such acts were a significant contributing factor to the offense; or149
(2) The best interest of justice and welfare of society would be served.150
(c) Upon a finding provided for in subsection (b) of this Code section:151
(1) A person convicted of a crime punishable by death or by life imprisonment shall be152
punished by imprisonment for not less than one year nor more than 30 years.153
(2) A person convicted of a felony other than a felony punishable by death or life154
imprisonment shall be punished by imprisonment for not less than one year nor more than155
one-half the maximum period of time for which he or she could have been sentenced, by156
one-half the maximum fine to which he or she could have been subjected, or both."157
SECTION 7.158
Title 24 of the Official Code of Georgia Annotated, relating evidence, is amended in Chapter159
5, relating to privileges relative to evidence, by revising paragraphs (8) and (9) of and adding160
a new paragraph to subsection (a) of Code Section 24-5-501, relating to certain161
communications privileged, to read as follows:162
"(8) Communications between or among any psychiatrist, psychologist, licensed clinical163
social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and164
family therapist, and licensed professional counselor who are rendering psychotherapy165
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or have rendered psychotherapy to a patient, regarding that patient's communications
166
which are otherwise privileged by paragraph (5), (6), or (7) of this subsection; and
167
(9) Communications between accountant and client as provided by Code Section168
43-3-29; and169
(10) Communications made in the context of victim centered practices or victim-offender170
dialogues as provided for in Code Section 24-5-511."171
SECTION 8.172
Said title is further amended in said chapter by adding a new Code section to read as follows:173
"24-5-511.174
(a) As used in this Code section, the term:175
(1) 'Facilitator' means a person who is trained to facilitate a victim centered practice or176
victim-offender dialogue.177
(2) 'Party' means a person, including a facilitator, a victim, an offender, a community178
member, and any other participant, who voluntarily consents to participate with others179
in a victim centered practice or victim-offender dialogue.180
(3) 'Proceeding' means any legal action subject to the laws of this state, including, but181
not limited to, civil, criminal, juvenile, or administrative hearings.182
(4) 'Victim centered practice' or 'practice' means a gathering in which parties gather to183
identify and respond to wrongdoing, repair harm, reduce the likelihood of further harm,184
and strengthen community ties by focusing on the needs and obligations of all parties185
involved through a participatory process.186
(5) 'Victim-offender dialogue' or 'dialogue' means a process in which the victim of a187
crime, or his or her surviving family members, and the offender who committed the crime188
meet in a secure setting to engage in a dialogue facilitated by a facilitator with the goal189
of repairing harm and addressing trauma.190
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(b)(1) Any communication or action made at any time while preparing for or191
participating in a victim centered practice or a victim-offender dialogue or as a follow up192
to such practice or dialogue, or the fact that such practice or dialogue has been planned193
or convened, shall be privileged and shall not be referred to, used, or admitted in any194
proceeding unless such privilege is waived. Such waiver may be made during the195
proceeding or in writing by the party or parties protected by the privilege. Privileged196
information shall not be subject to discovery or disclosure in any judicial or extrajudicial197
proceeding and shall not be subject to public inspection as provided by Article 4 of198
Chapter 18 of Title 50.199
(2) Parties of a victim centered practice or victim-offender dialogue may refuse to200
disclose communications relating to a victim centered practice or victim-offender201
dialogue and prevent others from disclosing such communications.202
(3) Any waiver of privilege shall be limited to the participation and communications of203
the waiving party only, and the participation or communications of any other party shall204
remain privileged unless waived by such other party.205
(c) Evidence that is created or discovered outside of the victim centered practice or206
victim-offender dialogue shall not become inadmissible or protected from discovery solely207
because it was discussed or used in a victim centered practice or victim-offender dialogue.208
(d)(1) The privilege afforded by this Code section shall not extend to a situation in209
which:210
(A) There are threats of imminent violence to self or others; or211
(B) The facilitator believes that a child is being abused or that the safety of any party212
or other person is in danger.213
(2) A court, tribunal, or administrative body may require a report on a victim centered214
practice or victim-offender dialogue, but such report shall be limited to the fact that a215
practice or dialogue has taken place and whether further practices or dialogues are216
expected.217
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(e) The privilege created by this Code section shall not be grounds to fail to comply with218
mandatory reporting requirements as set forth in Code Section 19-7-5 or Chapter 5 of219
Title 30, the 'Disabled Adults and Elder Persons Protection Act.'220
(f) No facilitator shall be held liable for civil damages for any statement, action, omission,221
or decision made in the course of a victim centered practice or victim-offender dialogue222
unless that statement, action, omission, or decision is:223
(1) Grossly negligent and made with malice; or224
(2) Made with willful disregard for the safety or property of any party to the victim225
centered practice or victim-offender dialogue."226
SECTION 9.227
All laws and parts of laws in conflict with this Act are repealed.228
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