Georgia AG insists the sentence was cruel but totally normal

October 26, 2007 12:18 PM

Georgia's Supreme Court has agreed that Genarlow Wilson's 10-year prison sentence without the possibility of parole and accompanying lifetime sex offender status was cruel and unusual. Previously on MeFi.

The law which put Wilson in prison was later repealed (to quote Lincoln, "the best way to get rid of a bad law is to enforce it vigorously"), but in a perverse twist Georgia's legislature specifically prohibited the law from being applied retroactively.

posted by mullingitover (49 comments total)

Happy to hear this on the news this morning.
posted by retronic at 12:21 PM on October 26, 2007

Good. Finally.
posted by koeselitz at 12:22 PM on October 26, 2007

Nice to see Georgia finally entering the last quarter of the 20th century. Even if it was by a mere 4-3 vote.
posted by Thorzdad at 12:27 PM on October 26, 2007 [1 favorite]

Sanity!
posted by spikeleemajortomdickandharryconnickjrmints at 12:30 PM on October 26, 2007

It was great reading this news, but sad that this happened in the first place. It was a complete failure of jury nullification.

Personally, I think the Georgia AG should have to serve the rest of his sentence for him. What a douche.
posted by mullingitover at 12:30 PM on October 26, 2007 [2 favorites]

Personally, I think the Georgia AG should have to serve the rest of his sentence for him.

As well as the idiot who videotaped it. Seriously, why people want to see that shit is beyond me.
posted by Tommy Gnosis at 12:33 PM on October 26, 2007

The one year punishment for this is still too cruel in my opinion.
This was not a molestation case. This was consensual oral sex between two teens. The law should not be involved.
posted by notmtwain at 12:39 PM on October 26, 2007

So what you are saying is all statutory rape laws should be repealed?
posted by Gungho at 12:46 PM on October 26, 2007

So what you are saying is all statutory rape laws should be repealed?

what
posted by Baby_Balrog at 12:48 PM on October 26, 2007 [3 favorites]

Gungho I don't think anyone's said that. But they shouldn't apply to non-adults, or at least not to non-adults within a sliding age bracket.

I remember reading about a teenage boy convicted of raping his teenage girlfriend, who was herself convicted for raping him, since they were both under the age of consent. Can't find the link though, so I may be misremembering.

However, the girl who was convicted to producing and distributing child pornography because she took a photo of herself nude and emailed it to her also under 18 lover I could find a link for.

Laws regarding statutory rape shouldn't be repealed, but they should be significantly changed. As it is they're being used by bluenoses, busybodies, and other assorted pantysniffers to use the hammer of law to punish teenagers for having consensual sex with other teenagers, and that isn't right at all.
posted by sotonohito at 12:56 PM on October 26, 2007 [5 favorites]

So what you are saying is all statutory rape laws should be repealed?

Man, did you wait an entire half hour for someone to post something that could be twisted into this? Wow.
posted by Pope Guilty at 1:06 PM on October 26, 2007 [6 favorites]

So what you are saying is all statutory rape laws should be repealed?

If it's that or allowing people like you to define statutory rape, sure.
posted by maxwelton at 1:09 PM on October 26, 2007 [3 favorites]

As it is statutory rape laws represent the "best bad option", which means they need to be applied carefully and with lots of oversight.

I say "best bad option" because they're a one size fits all solution for a problem that varies tremendously from individual to individual. Some people over 18, while not legally children or retarded are not mature enough to consent to sex with adults. Some people under 18 are, I'd argue, mature enough to consent to sex with adults. The problem is how do you know if any *particular* under 18 year old fits that category? And the answer is that you can't, so to avoid the risk of legitimizing a rape, you simply ban sex between people under 18 and people over 18. Not the best option, but the best option we can make work.

Obviously the consent fairy doesn't magically make people into fully functioning, not likely to be coerced into sex, adults in the time that passes between them being 17 years, 364 days, 23 hours, 59 minutes, and 59 seconds old, and the next second when the turn 18. But what other, workable, option is there?

Any attempt to legitimize sex between people under 18 and people over 18 will, inevitably, be abused by adults who want to victimize children. So, quite wisely, we have statutory rape laws.

But that doesn't, can't, and shouldn't apply to cases where both parties are under 18. Self evidently people under 18 are sexual beings, and while its absolutely correct to say "no sexual contact between you and an adult", its futile and unnecessarially punative to make it illegal for them to consent to sex with people (roughly) the same age. All that does is criminalize behavior that doesn't cause harm, and put a lot of people under 18 behind bars.
posted by sotonohito at 1:10 PM on October 26, 2007

“The law isn't justice. It's a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be.”

-- Raymond Chandler
posted by Comrade_robot at 1:13 PM on October 26, 2007 [6 favorites]

Gungho: "So what you are saying is all statutory rape laws should be repealed?"

I don't know if you've read the article. What we're saying is that statutory rape laws shouldn't be applied to minors. In other words, minors shouldn't be prosecuted for having sex with other minors, and they especially shouldn't be prosecuted in the same way that adults who have sex with minors are. It's silly. Right?
posted by koeselitz at 1:15 PM on October 26, 2007

Man, did you wait an entire half hour for someone to post something that could be twisted into this? Wow.

So what you are saying is that everyone above the age of 60 should be killed?
posted by Krrrlson at 1:16 PM on October 26, 2007 [5 favorites]

koeselitz Actually, I do think that statutory rape laws should apply to minors. Just not within an age bracket that gets smaller as the minor gets younger. I think that a 16 year old who had sex with a 10 year old probably should be prosecuted for statutory rape, but an 11 year old who had sex with a 10 year old shouldn't be.
posted by sotonohito at 1:20 PM on October 26, 2007

Krrrlson writes "So what you are saying is that everyone above the age of 60 should be killed?"

Nobody is saying that yet. The baby boomers have only started retiring.
posted by mullingitover at 1:22 PM on October 26, 2007 [3 favorites]

As it is statutory rape laws represent the "best bad option", which means they need to be applied carefully and with lots of oversight.

Oversight is all well and good, but I'd like to see more carefully-crafted laws with less discretion around their application. You've gotta have a lot of faith in your fellow man (and the democratic process) to think that more room for "careful" application doesn't end up just effing people in the a. And the people who get effed are usually members of traditionally oppressed groups.
posted by Kwantsar at 1:23 PM on October 26, 2007

Kwantsar writes "Oversight is all well and good, but I'd like to see more carefully-crafted laws with less discretion around their application."

Less discretion around their application? Isn't that what 'mandatory minimums' are all about, which was how this case got to be so screwed up in the first place?

It seems like more discretion available to the judge could've prevented this madness, but then again another judge did overturn the verdict and the AG just appealed it. At least for Georgia, the best stopgap would seem to be disbarring that asshole AG.
posted by mullingitover at 1:30 PM on October 26, 2007

so he got in trouble for oral sex... and his lawyers name is BJ? that's awesome.
posted by andywolf at 1:45 PM on October 26, 2007 [2 favorites]

Kwantsar Actually, I agree with your general point. Which is where oversight comes in, from my POV anyway.

A very well written law would be nice, and I certainly would like to see the laws re: statutory rape be reworked. OTOH absent oversight even the best written laws can be abused.
posted by sotonohito at 1:51 PM on October 26, 2007

To the 3 dissenters, I say: Fuck the heck???
posted by ORthey at 1:51 PM on October 26, 2007

The crazy thing about this case is that he had actually been released by some judge and that the prosecutor appealed, causing the kid to go back to jail.

The prosecution of this kid has just been insane. Especially given that the law that convicted him was repealed.

As far as "We can't know what the age of consent should be, we have to use discretion!"

I think those people are wrong, because there are always going to be people with bad discretion I mean just look at this case, the prosecutor didn't need to file these charges, he chose too for whatever reason. Under a "discretion" regime the same thing could have happened.

I think what's needed is a consistent test that could be used to determine if a relationship is "coercive" And it shouldn't be based on any arbitrary sliding age scale either. Rather you would have forensic psychologist's interview the people involved and they can determine (attempting to apply a test in a deterministic way, not just their opinion) if the relationship is harmful, or coercive or whatever.
posted by delmoi at 1:52 PM on October 26, 2007 [1 favorite]

I don't know how you can have something like this happen to you and recover. I don't know how something like this wouldn't make you bitter for the rest of your life.
posted by ThePinkSuperhero at 1:56 PM on October 26, 2007 [1 favorite]

The whole sex offender registration process is so over-applied. A public defender I know had to defend a guy who was peeing in public. He was accused of doing something slightly different, but the whole case was pretty ludicrous, and fortunately he was acquitted. But say my friend had bungled the case. Should that guy have his neighbors warned for the rest of his life? People with small bladders beware. (Seriously, that was my takeaway.)
posted by salvia at 1:56 PM on October 26, 2007 [1 favorite]

I think Canada's approach is sensible.
posted by blacklite at 1:57 PM on October 26, 2007 [1 favorite]

Rethinking the age of consent
posted by jcruelty at 2:00 PM on October 26, 2007

I think Canada's approach is sensible.

Agreed, except that I would put the age of exploitation at the age when kids are permitted to leave home and live by themselves/go off to college (if a 'kid' can leave home, that 'kid' is obviously adult enough to make serious day-to-day decisions; at that point, if such individual is 'exploited', well, that's a part of the learning experience as an individual no longer under daily parental supervision). Another sensible cut-off would be the age for employment (in agriculture, e.g., where children can be exploited easily too). The notion that sexual autonomy should be treated differently from other forms of autonomy, in my view, smacks of puritanical paternalism.
posted by Azaadistani at 2:15 PM on October 26, 2007 [1 favorite]

Common sense. Cool.
posted by Smedleyman at 2:21 PM on October 26, 2007

Mandatory minimums are always stupid because they undo the fundamental point of the justice system which is to find the most just sentence *for the particular case*. If you take out the particulars, you don't even need a judge for sentencing-- all power goes to the prosecutor who chooses the charges and whether or not to prosecute at all.

This has left us with 1/3 of young black men in the criminal justice system.
posted by Maias at 2:25 PM on October 26, 2007

Statutory rape laws employ "strict liability" - it doesn't even take a criminal state of mind to be convicted. So no matter how much a minor misrepresents himself / herself, even to the point of producing a bogus identification, in many jurisdictions the adult will still be liable. This is the kind of thing that law professors usually hate and prosecutors (and the general public) seem to love.

The solution is clear: never have sex with anyone, ever. Except your friend's mom - she's probably still safe.
posted by 1adam12 at 2:44 PM on October 26, 2007

I don't know how you can have something like this happen to you and recover. I don't know how something like this wouldn't make you bitter for the rest of your life.

I guess so. I think that the 10 year mandatory minimum sentence was ridiculous, but it is a little discomforting to see Genarlow Wilson lionized as a civil rights hero. I keep reading about how Wilson was an honors student whose promising football career was derailed because of sexual relations with one of his classmates, but the full story is a lot more disturbing than that.

Here are the facts of the case, according to Wilson's petition for certiorari:

This case made its way to the court because a group of Douglasville teens rented two hotel rooms for a New Year’s Eve party on December 31, 2003. (T.393) The party attendees consisted of teenage boys and girls, including Petitioner. The morning after the party, a seventeen year old female complained to her mother that she thought she had been raped. The police were contacted and went to the Days Inn Hotel to search the party scene.

At the party scene, the police found a video camera and a tape of several of the teens having sex with the 17 year old and receiving oral sex from the 15 year old. After viewing the tape, the police arrested six young men, including Petitioner, for rape of the 17 year old and aggravated child molestation of the 15 year old.

So the gifted football player and a few other teens rent a hotel room for a New Years Eve booze-fest and then run a train on a 17 year-old and a 15 year-old, and then one of the girls claims that she was coerced. There was evidence showing that she was not forced, though, because the football player and his friends were videotaping the entire thing. That is pretty reprehensible. It is a bad situation all around.

It is NOT ten-years-in-jail and register-as-a-sex-offender reprehensible. But it's not quite Gideon vs. Wainwright either. Maybe the decision is still worth celebrating as a victory over stupid laws and that's why nobody minds eliding the context of the destructive decisions that gave rise to the case in the first place.
posted by Slap Factory at 3:25 PM on October 26, 2007 [2 favorites]

Can we do something about the West Memphis Three now? Genarlow Wilson's case was a horror, but the WM3 didn't even DO anything. Two lifers and one on death row.
posted by ethnomethodologist at 3:42 PM on October 26, 2007

but the full story is a lot more disturbing than that.

Slap Factory, I'm not sure what you're saying: A bunch of football players had sex with some girls, video evidence shows that it was consensual --- and that's somehow disturbing? Last time I checked, having orgies wasn't illegal.
posted by suedehead at 3:43 PM on October 26, 2007

The DA keeping this kid in jail must be a complete asshole. At the same time, I do agree with Slap Factory, the kid put himself in a terrible situation.

Teenagers shouldn't be renting hotel rooms, drinking and videotaping group sex acts. Honestly, it's not what "good kids" do. But it shouldn't really qualify for 10 years in prison either. This would be the ideal situation for some kind of humiliating and labourous community service.
posted by b_thinky at 3:44 PM on October 26, 2007

Suedehead: I didn't say it was illegal. I said it was disturbing.

If you don't think it is disturbing, then we can just agree to disagree on the whole drunken high school gangbang issue and move on.

I didn't expect that there would be a lot of diversity of opinion on that one.
posted by Slap Factory at 3:50 PM on October 26, 2007

West Memphis Three

Ho-lee shit. I'd somehow never heard of them until today. If someone had told me what I read in the wiki article before I'd read it, even knowing what I know about how fucked up law enforcement and the criminal justice system can be, I would have dismissed it as bullshit.

That's just...I don't even have words. Good God.
posted by lord_wolf at 3:57 PM on October 26, 2007

Slap Factory writes "If you don't think it is disturbing, then we can just agree to disagree on the whole drunken high school gangbang issue and move on. "

Ok. I mean, we've all been there. Right?
posted by mullingitover at 4:04 PM on October 26, 2007

I didn't say it was illegal. I said it was disturbing.

Gotcha, agreed. Just wanted to make the point that consensual gangbang != jail.
posted by suedehead at 4:37 PM on October 26, 2007

Psst, Lord Wolf ...

Note the tag at the top of the Wiki about the neutrality being disputed before getting too upset. That's a damn slanted article.
posted by Bookhouse at 5:19 PM on October 26, 2007

Azaad: I might be misunderstanding.. but the age where sex can no longer be exploitative in Canada is 18.. the same age you are legally an adult and can leave home, sign contracts, vote, and be tried as an adult.


Per http://www.justice.gc.ca/en/dept/clp/faq.html

What is Canada’s age of consent?

The age of consent is 18 years where the sexual activity involves exploitative activity, such as prostitution, pornography or where there is a relationship of trust, authority or dependency. For other sexual activity, the age of consent is 14 years.

Are there exceptions to this?

The Criminal Code provides what is often referred to as a “close in age” or “peer group” exception: a 12 or 13 year old can consent to engage in sexual activity with another person who is less than two years older and with whom there is no relationship of trust, authority or dependency.
posted by TravellingDen at 5:36 PM on October 26, 2007

Conceptually, I don't see why a minor shouldn't potentially be liable for statutory rape.

If a person can't consent to sex with an adult, there's no reason to think they're any more capable of consenting to sex with another minor, and we regularly (and without much controversy) hold minors liable for many crimes.
posted by Mr. President Dr. Steve Elvis America at 5:46 PM on October 26, 2007

MPDSEA, that is precisely why I support the treating toddlers like adults: three strikes and you are out, kiddo! There's no hitting allowed any more, and I mean it!
posted by five fresh fish at 6:26 PM on October 26, 2007

MPDSEA Conceptually I think you haven't thought it through.

I have a problem with it because person A is accused of raping person B, and person B is accused of raping person A. Rape is, by definition, a crime with a perpetrator and a victim. You can't be both simultaniously [1].

To charge two, say, 14 year olds with mutual rape seems literally insane to me. The perpetrator of a rape cannot simultaniously be raped by their victim, the nature of the crime makes that a nonsense statement.

I've got no problem with holding minors liable for crimes, but that's completely separate from this issue.

[1] Though a person can certainly be both at different times in their life. But at the same time? Naaah.
posted by sotonohito at 6:31 PM on October 26, 2007

The solution is clear: never have sex with anyone, ever. Except your friend's mom - she's probably still safe.

Your mom told me she was 18!
posted by Pope Guilty at 6:59 PM on October 26, 2007

But he's twenty-four, dude! Think about it! She's gotta be at least forty! That's old, man, so old!
posted by five fresh fish at 7:59 PM on October 26, 2007

What astounds me is the utter lack of common sense in the dissent. Where do they find these judges, peach-pie eating contest or something?
posted by Kickstart70 at 9:47 PM on October 26, 2007

If a person can't consent to sex with an adult, there's no reason to think they're any more capable of consenting to sex with another minor, and we regularly (and without much controversy) hold minors liable for many crimes.

I'm not sure that, just because one element of the justice system is totally fucked up, that we should use it as an argument for fucking up the rest of the system just as badly.

Prosecuting minors as adults is also bad; it's just not as egregiously bad as sending someone to prison for ten years for oral sex with someone two years their junior.

We're not going to fix the entire system at once, and having a system that's halfway broken is probably better than one that's all the way broken. You seem to be arguing for 'consistency in injustice.'

I guess I'd rather have inconsistent justice than consistent injustice, given the choice, and that's the short-run option.
posted by Kadin2048 at 9:56 PM on October 27, 2007