Section 49-5-40. Definitions; confidentiality of records; restricted access to records

   (a) As used in this article, the term:

   (1) "Abused" means subjected to child abuse.

   (2) "Child" means any person under 18 years of age.

   (3) "Child abuse" means:

      (A) Physical injury or death inflicted upon a child by a parent or caretaker thereof by other than accidental means; provided, however, that physical forms of discipline may be used as long as there is no physical injury to the child;

      (B) Neglect or exploitation of a child by a parent or caretaker thereof;

      (C) Sexual abuse of a child; or

      (D) Sexual exploitation of a child.

However, no child who in good faith is being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to be an "abused" child.

   (4) "Near fatality" means an act that places a child in serious or critical condition as certified by a physician.

   (5) "Sexual abuse" means a person's employing, using, persuading, inducing, enticing, or coercing any minor who is not that person's spouse to engage in any act which involves:

      (A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

      (B) Bestiality;

      (C) Masturbation;

      (D) Lewd exhibition of the genitals or pubic area of any person;

      (E) Flagellation or torture by or upon a person who is nude;

      (F) Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude;

      (G) Physical contact in an act of apparent sexual stimulation or gratification with any person's clothed or unclothed genitals, pubic area, or buttocks or with a female's clothed or unclothed breasts;

      (H) Defecation or urination for the purpose of sexual stimulation; or

      (I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.

"Sexual abuse" shall not include consensual sex acts involving persons of the opposite sex when the sex acts are between minors or between a minor and an adult who is not more than five years older than the minor. This provision shall not be deemed or construed to repeal any law concerning the age or capacity to consent.

   (6) "Sexual exploitation" means conduct by any person who allows, permits, encourages, or requires that child to engage in:

      (A) Prostitution, as defined in Code Section 16-6-9; or

      (B) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, as defined in Code Section 16-12-100.

(b) Each and every record concerning reports of child abuse and child controlled substance or marijuana abuse which is in the custody of the department or other state or local agency is declared to be confidential, and access thereto is prohibited except as provided in Code Section 49-5-41 and Code Section 49-5-41.1.

(c) Each and every record concerning child abuse or neglect which is received by the department from the child abuse and neglect registry of any other state shall not be disclosed or used outside the department for any other purpose other than conducting background checks to be used in foster care and adoptive placements.

Ga. L. 1975, p. 1135, § 1; Ga. L. 1987, p. 1000, § 2; Ga. L. 1990, p. 1778, § 1; Ga. L. 1993, p. 1712, § 1; Ga. L. 2007, p. 478, § 7/SB 128; Ga. L. 2009, p. 43, § 1/SB 79; Ga. L. 2009, p. 733, § 3/SB 69.