Genarlow Wilson Freed From Ten Year Sentence

If you believe in justice, the best news you are likely to hear today is this:

The Georgia Supreme Court on Friday ordered the release of Genarlow Wilson, the Douglas County teenager who has been serving a controversial 10-year sentence for consensual oral sex. The court's 4-3 decision upholds a Monroe County judge's ruling that the sentence constituted cruel and unusual punishment under both the Georgia and U.S. constitutions.
Wilson was caught in a bind because he was sentenced under a law (later changed) that imposed a ten year mandatory minimum for having consensual oral sex with a minor, even though she was only two years younger than Wilson, who was 17 at the time. Wilson's ordeal is chronicled in these TalkLeft posts.

The Georgia Supremes made the decision bullet-proof by concluding that the sentence was cruel and unusual under the Georgia Constitution. Even if Georgia were to ask the U.S. Supreme Court to review the federal constitutional holding, the independent state constitutional holding will continue to protect Wilson.

Wilson should be released from prison soon. He will presumably need to be resentenced, but the court will no longer be bound by the 10 year mandatory minimum, and should be guided by the Georgia legislature's recent determination that the crime shouldn't be punished by more than a year in jail -- a sentence that Wilson has finished serving.

Update: (TL): The court's opinion is here (pdf.)

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    Very cool.... (none / 0) (#1)
    by kdog on Fri Oct 26, 2007 at 11:52:21 AM EST
    good news to start the weekend.  Shame it took so long is all.

    Yes, good news...but... (none / 0) (#2)
    by Packratt on Fri Oct 26, 2007 at 12:16:39 PM EST
    To bad he can't get back that portion of his lifetime that they "cruely" took from him. Hopefully he will be able to carry on and live well despite the hardships brought on by such malicious prosecution.

    i found the the dissent interesting. (none / 0) (#3)
    by cpinva on Fri Oct 26, 2007 at 12:20:23 PM EST
    In a dissenting opinion, Justice George Carley said that when the 2006 law was passed the Georgia legislature said that it should not be applied retroactively.

    apparently, that the majority found the sentence "cruel & unusual" under the georgia constitution went right over justice carley's head. kind of makes you wonder what else has gone over his head, in other cases he's reviewed.

    Don't forget. . (none / 0) (#4)
    by atlanta lawyer on Fri Oct 26, 2007 at 12:36:20 PM EST
    A big part of the win, in addition to getting out of jail now and not doing 10 years w/o parole eligbility, is that he won't have to register - for the rest of his life- as a sex offender and always have to live and work >1000ft from a church, school, daycare, pool, playground, or bus stop.

    As for Carley, a lot goes over his head. It's a rare blue moon indeed if he ever rules for a criminal defendant.

    however, TChris's description
    he was sentenced under a law (later changed) that imposed a ten year mandatory minimum for having consensual oral sex with a minor
    bugs me.

    While I understand TC's desire to work the (accurate) word "consensual" into the discussion, the reason there is a law against 15 y/o kids having sex is because in GA 15 y/o kids cannot give consent.

    I'm no attorney, but while the sex was "consensual" from a lay (pun intended) perspective, it was not in any legal sense, hence his conviction.

    iow, shouldn't the description be:

    he was sentenced under a law (later changed) that imposed a ten year mandatory minimum for having oral sex with a minor
    Shouldn't the actual facts of the case be enough? Why the need to "bend" them?

    "lay" definition of consensual (5.00 / 1) (#8)
    by magster on Fri Oct 26, 2007 at 01:19:46 PM EST
    makes a big difference though.  All the difference actually.  If this girl had been forced, no one would have cared that this guy had a 10 year sentence.

    And many states have age ranges in their statutory rape laws that make sex with a teenager consensual (or less of a crime) if the other person is less than four or five years older.


    yeah, but if she were forced, (none / 0) (#9)
    by sarcastic unnamed one on Fri Oct 26, 2007 at 01:40:23 PM EST
    ie., if the sex was "non-consensual" he'd have been indicted for rape, and none of us would even know his name.

    The laws he was convicted under don't say anything about "consensual" sex w/ 15 y/o, just sex w/ 15 y/o.

    afaik, in GA, regardless of age differences, 15 y/os cannot give consent.


    Are you going to announce to us that you have (none / 0) (#12)
    by kindness on Fri Oct 26, 2007 at 02:10:05 PM EST
    never had sex with someone who was TWO years younger than you are?

    If you can't say that, then get off your soapbox.  If you can say that, well, I'm not sure if I should feel good or sorry for you.


    First, (none / 0) (#17)
    by Deconstructionist on Fri Oct 26, 2007 at 02:39:23 PM EST
      he doesn't seem to be on any soapbox of morality but just decribing what some laws say. Second, there is a difference between having sex with someone more than  2 years younger and having sex with someone below the age of consent who is also more than 2 years younger. I'm 5 years older than my wife but I never had sex with her until she was 23.



    Thanks Decon. (none / 0) (#19)
    by sarcastic unnamed one on Fri Oct 26, 2007 at 02:52:07 PM EST
    Her comment was such gibberish that I was just ignoring it...

    I agree with laws (none / 0) (#21)
    by Deconstructionist on Fri Oct 26, 2007 at 03:05:08 PM EST
    establishing an age of consent (16 is the most common but I believe there a couple of states as low as 14 and as old as 18) and a reasonable exception based on closeness of age (I think this might need to be adjusted depending on where the AOC was set-- i.e., 4-5 years might be reasonable if the AOC is 16 or more but 4-5 years is a lot if we are talking about a 14 YO AOC because then it would allow sex with very young children by people old enough to know better such as a 16-17 year old with a 12 year old).

      It's important too to remember the distinction between AOC exceptions based on closeness of age and the issue of transfer from juvenile to adult jurisdiction based upon the age of the accused.

      The fact that a 16 -17 YO is accused of "statutory rape" should not mean he necessarily should be tried and punished as an adult.



    Good point, (none / 0) (#24)
    by sarcastic unnamed one on Fri Oct 26, 2007 at 03:18:43 PM EST
    I assume Wilson was charged as an adult?

    Poorly written laws passed in haste.... (none / 0) (#10)
    by kdog on Fri Oct 26, 2007 at 01:46:31 PM EST
    The way I would write a statuatory rape law is that minors under 17 cannot give consent to adults, but can to fellow minors or any person within 3 years of age, or something to that effect.  The Georgia Legislature passed a poorly written law, and I'd be surprised if the legislators who originally passed it gave it more than a glance over.  

    I hate to say it, but we might have to "pass a law" that states lawmakers are required to read every word of the bills they bring to a vote, and maybe be forced to write a "bill report" to make sure they understand the freakin' thing.


    Sounds reasonable to me. (none / 0) (#11)
    by sarcastic unnamed one on Fri Oct 26, 2007 at 01:52:37 PM EST
    Well, (none / 0) (#13)
    by Deconstructionist on Fri Oct 26, 2007 at 02:11:54 PM EST
      The first idea doesn't make much sense. Either someone is old enough to gove valid  consent to sex or isn't. I also would think it would be real difficult to pass constitutional muster with a law that stated a 15 yrearold is capable of giving consent to someone X years of age but incapable of giving consent to someone x + 1 year (or even one day if it is a birthday).

      Your second idea is, in a way, the  law in many states, however, it is not based on concept of capability of   consent of the "victim"  but on the mere idea that by people who are a defined closeness in age should not be prosecuted.

       So, if a state has establishing an  age of consent and requires  that a person must be 3-4 years older to be subject to prosecution, it would avoid the problem of an accused having the defense that his 8 year old victim was capable of consent due to HIS age,


    Simply put (none / 0) (#14)
    by Packratt on Fri Oct 26, 2007 at 02:25:01 PM EST
    If a minor is incapable of giving consent for a sexual act. Then also it would be true that, if that minor had sex with another minor, that the other minor would also be incapable of giving consent for that act.

    Therefore, on the face of it, the only valid options in cases where two minors were accused of having sex would be as follows:
    A. Prosecute both minors for rape since neither was legally permitted to give consent.
    B. Determine that the lack of ability to give consent would also mean the lack of ability to be held culpable for one's own actions, thus prosecute niether.

    Both seem unsatisfactory to me for a number of obvious reasons. So, perhaps, the question shouldn't rely solely on a matter of capability to understand and grant consent.


    my understanding is that he, a minor at 17 y/o, can give consent, but she, a minor at 15 y/o, cannot.

    Well, there you go, kdog, (none / 0) (#15)
    by sarcastic unnamed one on Fri Oct 26, 2007 at 02:25:56 PM EST
    now I'm leaning toward not liking your idea. There's gotta be some age at which one is too young to give legal consent to sex. Right?

    It's very tricky with so much grey area..... (none / 0) (#20)
    by kdog on Fri Oct 26, 2007 at 02:56:33 PM EST
    I'm fine with 15 year olds not being allowed to "legally" consent to sex, but not cool with 18 year olds getting prosecuted for having "laymens" consensual sex with 15 year olds.  Even 19, maybe 20 year olds.  We don't like it, but should it be a crime punishable with prison time?

    Two 15 year olds having sex is not something I'm comfortable with either, but should it be a crime?  Nature says once boys can ejaculate and girls can ovulate they are sexually mature.  We are bound to run into problems when the laws of man conflict with the laws of nature.  Young teens are not emotionally mature enough to handle sex, and it should be discouraged.....but I guess I'm not convinced it should be a crime.

    Definitely no easy answers....


    Decons explanation seems reasonable.... (none / 0) (#22)
    by kdog on Fri Oct 26, 2007 at 03:06:47 PM EST
    it can be a crime, but not a crime subject to presecution.  I can live with that.

    I should have read his reply more closely before responding.

    Too bad mother nature couldn't do us all a favor and make us all sexually mature at 17/18:)


    I don't know, (none / 0) (#23)
    by sarcastic unnamed one on Fri Oct 26, 2007 at 03:17:38 PM EST
    if the 20 y/o college sophomore pressures the 15 y/o HS frosh into having sex, I think that should be prosecutable.

    I see more grey..... (none / 0) (#26)
    by kdog on Fri Oct 26, 2007 at 03:59:44 PM EST
    It's definitely unsavory, and I'm not dead-set against a prosecution in such a case.  But I am dead-set against a prison term or sex-offender registration absent physical force stemming from sex between two people under the age of legally buying a beer.

    What if the guy was 20 and the girl 8? (none / 0) (#27)
    by sarcastic unnamed one on Fri Oct 26, 2007 at 04:12:56 PM EST
    C'mon bro.... (none / 0) (#29)
    by kdog on Sat Oct 27, 2007 at 09:55:50 AM EST
    thats child molestation...throw the book at him.

    Good. (none / 0) (#30)
    by sarcastic unnamed one on Sat Oct 27, 2007 at 12:51:24 PM EST
    Decon and I have been saying that there must be some minimum age in order to be able to give consent. For a while there it didn't look like you agreed, or at least you never addressed it.

    What do you think should be the age of consent?


    Apples & Oranges (none / 0) (#18)
    by squeaky on Fri Oct 26, 2007 at 02:50:35 PM EST
    Consentual sex means that both people are into it. That has nothing to do with ages of legal consent. You know that though or if you are confused about the term consensual sex look it up.

    I don't think it went over his head... (none / 0) (#6)
    by Deconstructionist on Fri Oct 26, 2007 at 01:05:53 PM EST
      I think  he raises an interesting point.

    The majority opinion is obviously internally inconsistent. First, it holds Wilson's state constitutional claim is not procedurally barred by application of waiver rules (failure to pursue it below) because the 2006 statute was not in effect at the time he appealed below and it claims the statute forms the basis for the constitutional claim even though Georgia's C&U clause obviously existed at the time. Thus, the majority creates the standard that the statute is relevant for considering the constitutional claim (both in that sense and in the sense of demonstrating "evolving standards" which allow it to ignore prior court precedents).

      Then the majority turns around and says it can ignore the legislative prohibition of retroactive application of the very same statute because , it says, the length of the sentence violates the C&U clause. Why, if the length of the sentence is so diproportionate as to be C&U would that not be the case even if the statute had never been mended?

      The majority endeavors very hard to reach the "right result" and in doing so it applies some extremely tortured reasoning and application. That's how the old saying hard cases make bad law  came to be.

    Also, as I read the case (none / 0) (#7)
    by Deconstructionist on Fri Oct 26, 2007 at 01:15:07 PM EST
    Wilson will not be resentenced because the majority opinion states his conviction and sentence are vacated and that he can't be convicted of the new misdemeanor because it did not exist when he committed the crime (that would be ex post facto application). As I read it he sttands unconvicted of any crime.

    But... (none / 0) (#25)
    by Packratt on Fri Oct 26, 2007 at 03:39:08 PM EST
    Still punished none the less.

    Punishment (none / 0) (#28)
    by Deconstructionist on Sat Oct 27, 2007 at 08:49:50 AM EST
    already served obviously cannot be undone.

      Of course some people might conclude what he did was wrong and he deserved some punishment. This site has been pretty consistent in ignoring the facts of the case. Mr. Wilson was a among a group of males who videotaped themselves having sex with a 15 year old girl. This was not a criminalization of teen romance.

      By similar  logic to that which leads many to conclude that juveniles should not be tried and punished as adults because their youth, immaturity and lack of judgment and experience dictates special treatment aimed at protecting juveniles, many also conclude that people below a certain age must be protected from people who would prey on their youth, immaturity and lack of judgment and experience to gratify their sexual desires or to establish their ability to exert power, dominion and control.