Ten Years For Consensual Sex

By TChris, Section Crime Policy
Posted on Tue Dec 19, 2006 at 10:09:00 AM EST
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Genarlow Wilson and some friends rented a hotel room for a New Years Eve party in 2003. They planned to drink and smoke some weed and fool around. One of Wilson's friends, a 15 year old girl, performed an act of oral gratification on Wilson, who was 17. Although she testified that she was a willing participant, Georgia law made it a felony for Wilson to receive oral pleasure from a minor -- even a minor who was close to his own age -- so jurors found him guilty.

The verdict might have been different if jurors had known Wilson was facing a minimum sentence of 11 years, 10 to be served without parole. Wilson is also required to register as a sex offender for the rest of his life.

As a result of the publicity surrounding Wilson's case, Georgia changed its law, but the Georgia Supreme Court declined to hear Wilson's appeal. The Court's justification is, to put it politely, hogwash.

Justice Hunstein, claiming to be "very sympathetic to Wilson's argument regarding the injustice of sentencing this promising young man with good grades and no criminal history to 10 years in prison without parole and a lifetime registration as a sex offender," nonetheless considered the court bound by the legislature's earlier decision to classify oral sex with a minor as a felony. Perhaps the court should have considered whether that determination was rational, given the legislature's treatment of sexual intercourse under similar circumstances.

Even more confounding, at the time of Mr. Wilson’s offense, a so-called “Romeo and Juliet” exception had already been made for sexual intercourse between teenagers. “Had Genarlow had intercourse with this girl, had he gotten her pregnant, he could only have been charged with a misdemeanor and punished up to 12 months,” said Brenda Joy Bernstein, Mr. Wilson’s lawyer.

How can such an irrational classification of offenses comport with due process? If the court wanted to correct this injustice, it certainly had the ability to do so.

Many of the laws that "protect" minors were written in an era when sexual activity among minors was uncommon, or at least hidden. Today, a large percentage of kids are sexually active before they turn 16. It's one thing to protect immature children from adult predators, but quite another to prosecute minors who have consensual sex with other minors. A 10 year mandatory minimum might be appropriate for a child molestor, but that description doesn't fit Wilson.

If Wilson is to obtain justice, he'll probably need to secure a pardon. Wilson has already served two years. His release is long overdue.

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Ten Years For Consensual Sex | 21 comments (21 topical)

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Law of Nature vs. Law of Man (5.00 / 2) (#2)
by kdog on Tue Dec 19, 2006 at 10:06:48 AM EST

If mankind wants to make laws forbidding sexual activity for those under 17 or whatever...mankind should tell mother nature to stop making humans sexually mature by 14-15.

The two do not jive...these laws are by definition unnatural.

: I agree (5.00 / 1) (#3)
by aw on Tue Dec 19, 2006 at 10:12:39 AM EST

and we can extend that observation to a lot of laws.

If (none / 0) (#1)
by aw on Tue Dec 19, 2006 at 09:49:00 AM EST

I were the governor, I would issue a pardon TODAY.

fully informed juries (none / 0) (#4)
by zaitztheunconvicted on Tue Dec 19, 2006 at 10:35:49 AM EST

How come this site and others like it don't tell people and juries about FIJA, the fully informed jury association, and the rights of a jury to not convict if they believe the law is a bad law or being wrongly applied?

: I wouldn't need to be told..... (5.00 / 1) (#6)
by kdog on Tue Dec 19, 2006 at 11:01:44 AM EST

If I was on that jury, I would have wilfully ignored the judges instructions and refused to find this poor kid guilty...whether it's the right thing to do "legally" or not. I'm the one that has to look in the mirror everyday...don't think I could if I sent a 17 year old to the slammer for this nonsense.
Such injustice demands action by any means necessary. They jury should have known better, just by instinct and common sense....and sent the prosecutor home empty handed.

we are talking about georgia after all (none / 0) (#7)
by cpinva on Tue Dec 19, 2006 at 12:06:52 PM EST

a state where not long ago, folks got together of a friday evening, to start off the weekend with a "family style" lynching, complete with music, dancing, beverages and picnic dinners.

it's a state (not unlike many others), where politicians try to outdo each other on their "law n order" image, by passing inane laws.

i am only surprised they didn't sentence him to castration, partial hanging and drawing & quartering as well. kid should consider himself fortunate to live in such an enlightened state.

There is a bit more to the story (none / 0) (#8)
by James DiBenedetto on Tue Dec 19, 2006 at 02:47:43 PM EST

Ten years is a travesty of justice, but there was a little bit more to the case.

Wilson was also charged and tried for rape (he was acquitted) because he had intercouse with a second (17 year old) girl who was extremely drunk/barely conscious, at the same party.

The sentence is still horrible, but that second charge was apparently a factor in the DA's handling of this case.

Aside from that, though, I guess I'm a prude or a Purian or something, but what went on doesn't strike me as reasonable or expected teenage behavior or something that "all the kids are doing."

It wasn't just a sophmore girl giving a senior boy a blow job. It was a bunch of underage kids getting drunk and high and having sex with multiple partners, while their friends watched and videotaped the whole thing. That shouldn't be acceptable behavior for teenagers regardless of how consensual it all was!

There's a difference between a couple fooling around in the back seat of a car (or wherever), and a girl servicing several boys one after the other while everyone looks on and cheers. How can that possibly not be dehumanizing for everyone involved?

What? (none / 0) (#9)
by aw on Tue Dec 19, 2006 at 03:21:02 PM EST

You just said yourself he was acquitted of rape with the 17-year-old (who was above the age of consent).

Why on earth should they factor in a charge of which he was acquitted?


: Clarifying (none / 0) (#10)
by James DiBenedetto on Tue Dec 19, 2006 at 03:43:11 PM EST

What I understood from the story I read about the case is that the DA offered Wilson a plea bargain (he did the same for five other defendants, who all made deals in the end) on the rape charge (for which he was acquitted), and once that offer wasn't accepted, he prosecuted Wilson for the second charge (the oral sex) when he went to trial for the first charge.
Which is still wrong; I'm not defending the DA. But knowing that makes the case seem to me more about the kind of general prosecutorial abuse of power that happens all over the country; and less about efforts to criminalize teenage sex in Georgia.

Points taken but..... (none / 0) (#11)
by kdog on Tue Dec 19, 2006 at 06:40:20 PM EST

That shouldn't be acceptable behavior for teenagers regardless of how consensual it all was!

Unacceptable behavior is a far cry from criminal behavior.

The DA shouldn't be parenting these young adults, their parents should.

This is madness anyway you slice it...madness.

But, but, but.....nothing (none / 0) (#12)
by Edger on Tue Dec 19, 2006 at 07:17:59 PM EST

Ten years is a travesty of justice...and there are no buts that justify or excuse it.


the question I have (none / 0) (#13)
by Jen M on Wed Dec 20, 2006 at 08:14:37 AM EST

Is why does the DA want to destroy the boy?

Political ambition?
Malice?
Spite?

If his motive is justice then he needs to find another line of work.

Disgusting (none / 0) (#14)
by jondee on Wed Dec 20, 2006 at 01:39:34 PM EST

Let someone swing rather than admit error. Hey, they've had decades of practice down there with that (and it's a big factor still in elections). Denial and red state (false) pride always takes precedence. Never admit you were wrong even at pain of your, or someone else's, death.

I'd like to see the DA (none / 0) (#15)
by glanton on Wed Dec 20, 2006 at 04:00:09 PM EST

the Judge, and all the legislators who made this law in the first place all do 10 years in prison. They are far more desrving than this kid.

The real travesty is that this holiday season, as someone's life drains away through no fault of his own, these people are all dressing up, spending time with family, watching football etc., as if they're perfectly decent people. That's the real travesty.

: There's this (none / 0) (#16)
by squeaky on Wed Dec 20, 2006 at 04:43:16 PM EST

Girl, 13, charged as sex offender and victim...
...in this case, having consensual sex with her 12-year-old boyfriend.
Utah SC The 12 year old was charged as well.

The NYT has taken up the case, too (none / 0) (#18)
by scribe on Thu Dec 21, 2006 at 01:23:49 PM EST

in favor of the young male defendant, beginning its editorial as follows:

Genarlow Wilson loves reading mystery novels and can't wait for the next Harry Potter book. The 20-year-old former high school football player and honor student works in a library, the perfect job for a young bookworm. Unfortunately, that is where the good news ends and a genuine horror story of this country's legal system begins. The library in Georgia where Mr. Wilson works is in prison. He is two years into a sentence for engaging in consensual oral sex with a 15-year-old girl at a New Year's Eve party when he was 17. He won't be eligible for parole until he has served 10 years, essentially sacrificing his remaining youth to an obvious miscarriage of justice.

But, the NYT editorial does not call for clemency, but rather notes that Wilson's lawyer is "planning to file a habeas petition seeking his release" and urges "to grant it and expunge his record so that Mr. Wilson can return to his family and his once promising academic career."

Why no clemency application, and why no call for clemency?

What is now making this matter even more grotesque (as if it wasn't already), is the apparent fact that the Governor of Georgia has no power to commute the sentence or offer any form of executive clemency, as is explained in this comment at Sentencing Law and Policy:

It isn't clear that clemency may be granted in this case in Georgia. From the state constitution:

Paragraph I. State Board of Pardons and Paroles. There shall be a State Board of Pardons and Paroles which shall consist of five members appointed by the Governor, subject to confirmation by the Senate. The members of the board in office on June 30, 1983, shall serve out the remainder of their respective terms, provided that the expiration date of the term of any such member shall be December 31 of the year in which the member's term expires. As each term of office expires, the Governor shall appoint a successor as herein provided. All such terms of members shall be for seven years. A chairman shall be selected by the members of the board from its membership.
Paragraph II. Powers and authority. (a) Except as otherwise provided in this Paragraph, the State Board of Pardons and Paroles shall be vested with the power of executive clemency, including the powers to grant reprieves, pardons, and paroles; to commute penalties; to remove disabilities imposed by law; and to remit any part of a sentence for any offense against the state after conviction.
(b) . . .
(2) The General Assembly may by general law approved by two-thirds of the members elected to each branch of the General Assembly in a roll-call vote provide for minimum mandatory sentences and for sentences which are required to be served in their entirety for persons convicted of armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery and, when so provided by such Act, the board shall not have the authority to consider such persons for pardon, parole, or commutation during that portion of the sentence.
It looks like the Governor doesn't have clemency power which has instead been vested in the board, and that the board doesn't have the right to pardon in this case. Short of a federal appeal or legislative amnesty, I see no recourse whatsoever in this case.

So, in so many words:

The young man was charged with a crime bearing a mandatory minimum.
The mandatory minimum charge was not required to be charged by law, but was required to be charged by a discretionary policy within the prosecutor's office - which they chose not to waive (because they don't like alleged sex offenders).
The State's Constitution has removed from the Governor and vested in an appointed Board the power to grant clemency, pardons, paroles, commutations, etc.
The State's Constitution has removed from that Board the power to grant clemency or other relief, when the charge is pursuant to a statute establishing a mandatory minimum sentence, during the mandatory minimum portion of the sentence.

In other words, if no federal court can intervene by, say, habeas corpus, this kid is stuck. There is no clemency for him. Period.

Another reason to avoid Georgia.

Most excellent commentary, Glanton... (none / 0) (#19)
by Bill Arnett on Thu Dec 21, 2006 at 01:59:33 PM EST

...but just so this site doesn't get banned by law firm censorship programs please alter the profanity so it won't register. If you say bullsh*t, we'll all know what you mean.

And man do I agree with you comment about Bill O and self-righteous posturing to cater to the rabid religious right.

And it must be for the rabid religious right as the republicans have forever sacrificed their claim to be "the party of the rule of law."

sex offender blog (none / 0) (#20)
by Trajan on Fri Jan 19, 2007 at 02:48:35 PM EST

http://strangefutures.livejournal.com/

I'm interested in everybody else thinks

Lynching by Words (none / 0) (#21)
by cp on Sat Jan 27, 2007 at 08:23:36 AM EST

Bad judgement on the part of these KIDS yes, but criminal behavior NO. A teenager who commits murder is given far more leniancy. While the prosecutor abused his power, it's the jurors who should be ashamed of themselves. They ultimately had the POWER to say not guilty of such a foolish law. This child needs to be set free! The good Lord also sees this and all those involved including the JURORS will be subject to His justice!

These laws are wrong.And they need to be changed. (none / 0) (#22)
by frenchcutie on Sun Jan 28, 2007 at 08:56:41 AM EST

Some one who has consensual sex with someone should not be in prison.And should not be listed as a molester or sex offender.That is whats wrong now. They put all these people under the same registry.As the real adult PREDATORS, that rape,kidnap and murder our children.And now on the sex offenders registry they have soooo many of them they can't watch the ones they should be watching. I say that they need to change these laws.Was our first President a child molester?
His wife was 14 years old when they were married.
Wasn't he in his 30's????What about our Grand fathers or Great grandfathers they married girls in there teens and most of them where in there late 20's or 30's.So are they molesters? Are they on a sex offender list?

Lets be fair and balanced (none / 0) (#23)
by jondee on Sun Jan 28, 2007 at 11:39:12 AM EST

On the upside, Fox has taken a strong stance in favor of vouchers for private prisons for some qualified offenders.