WARNING: Extreme ranting ahead.
I remember reading this story when it first came out, and I’m surprised I never blogged it before, as I was totally outraged then, and totally outraged now. The story is about one Genarlow Wilson, a black kid from Georgia who went from being a scholar-athlete with a bright future to a “criminal” sentenced to 10 years in prison, without the possibility of parole, for — wait for it — getting a blowjob from a fellow high-school student.
His “crime,” technically speaking, was “aggravated child molestation.” Right, because a 15-year-old sophomore who willingly performs oral sex on a 17-year-old senior — she admits the BJ was totally consensual, indeed that she initiated it, and thinks he should be let out of prison — is being “molested.” Uh-huh.
Here’s the best part: if they’d had sex, it would have been a misdemeanor, with a sentence of at most one year, because they were less than three years apart in age. But thanks to an archaic loophole in Georgia law — one which has since been closed, but not retroactively — the state’s “Romeo and Juliet law” doesn’t apply to oral sex, so Wilson’s sentence was ten times worse because he got a blowjob instead of intercourse.
I want to stop now and reiterate: he got 10 years in prison. This isn’t a culture-wars debate. I don’t care who you are, I don’t care what your view of sexual morality is, I don’t care if you believe such acts merit some punishment — if you don’t think 10 years in prison for a consensual blowjob between a 15-year-old and a 17-year-old is a grave injustice, there is something very seriously wrong with your worldview.
By the way, the kid’s been in prison for more than two years already. TWO YEARS. Of a ten-year sentence. For a blowjob. Have I emphasized this point enough?
Why the D.A. hasn’t worked with the judge to fix this — why legislature hasn’t take retroactive action — why the governor Board of Pardons and Paroles hasn’t commuted his sentence — why President Bush hasn’t pardoned him — all of these things are totally baffling to me. I mean this: Every single person who has the power to fix this injustice, who has been made aware of the situation, and who has failed to fix it, ought to be utterly ashamed of themselves. I cannot understand how anyone could possibly look at this case and not recognize the need to immediately, without hestitation, fix it. The mind truly boggles.
Well, enter stage left an activist judge, in a rare case where we really need one. Judge Thomas H. Wilson (no relation to Genarlow Wilson) threw the sentence out on Monday. He called the sentence so disproportionate as to constitute “cruel and unusual punishment,” and wrote:
The fact that Genarlow Wilson has spent two years in prison for what is now classified as a misdemeanor, and without assistance from this court, will spend eight more years in prison, is a grave miscarriage of justice. If any case fits into the definitive limits of a miscarriage of justice, surely this case does. …
If this court or any court cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish … justice being served in a fair and equal manner.
Amen! Hooray! Justice at last! So, end of story, right? Nope. Wilson is still in prison, pending appeal, and it may take quite some time to work it all out. Moreover, he still may ultimately lose. As I said, the judge is being a bit activist here, and probably doesn’t technically have the authority to issue this order. At least that’s what the Georgia attorney general, still pursuing this prosecution with Nifong-esque zeal, is arguing:
Attorney General Thurbert Baker…, who is black, is now pushing to keep Wilson in prison, arguing that his sentence is valid.
In his notice of appeal, Baker argued that Georgia law does not give a judge authority to reduce or modify the sentence imposed by the trial court.
Says Wilson’s lawyer, “It is extremely, extremely disturbing that the attorney general would take this action now.” I would add only that the attorney general should go to f***ing Hell, and should be disbarred f***ing immediately, along with anyone else who has had any role in allowing any of this to happen, while purporting to uphold “justice.” Jesus Christ.
That said, I can sort of understand why, on purely procedural grounds, the attorney general would not want the judge’s order to stand, as it probably sets a bad precedent. But dammit, it’s their own damn fault for ridiculously continuing to push this case forward, putting the judge in a position where the only way to fix the outrageous mess they’ve created is to make bad law! Guess what, Brown v. Board of Education was arguably “bad law” too, but sometimes you gotta do what you gotta do when truly grave injustices need to be corrected. I’m with the Rev. Joseph Lowery:
Go - as our designated champion of law and justice - and urge the courts to set this political prisoner free. You are expected to be more than some robot obeying the whims [and errors] of some heartless machine… Where is your conscience, that you would allow this travesty to occur on your watch?
Where, indeed? Where is the entire state of Georgia’s conscience?
But the attorney general’s office appears unwilling to budge. They keep babbling about how they’re oh-so-generous because they’ve offered Wilson a plea deal: only five years in prison, and no sex-offender registry when he gets out. Ah yes, FIVE years for a blowjob when intercourse would have been a misdemeanor! THAT’S just! But we’re supposed to look more kindly on the AG, and blame Wilson for sealing his own fate by rejecting such an eminently reasonable offer! Riiiight.
That attitude goes back to the original case, as the ESPN article demonstrates:
In [prosecutor Eddie] Barker’s eyes, Wilson should have taken the same plea agreement as the others. Maintaining innocence in the face of the crushing wheels of justice is the ultimate act of vanity, he believes. …
Barker thinks five years is fair for receiving oral sex from a schoolmate. None of the other defendants insisted on a jury trial. Wilson did. He rolled the dice, and he lost. The others, he says, “took their medicine.”
Hey, I have an idea. Instead of treating the criminal justice system as a game of dice — and putting deal-making and bargains ahead of guilt, innocence and justice — why didn’t the prosectors actually DO THE RIGHT F***ING THING IN THE FIRST PLACE and exercise their prosecutorial discretion to not abuse an archaic legal loophole to destroy a young man’s life for no good reason?!? What a bunch of ridiculous, immoral pricks. My God.
And yet I bet this hasn’t generated 0.1% of the number of outraged letters to the authorities that Paris Hilton’s release from jail did. God bless America.
(Hat tip: Becky.)
P.S. This case was discussed several months ago on the Volokh Conspiracy. Of particular interest are a couple of comments: an ex-prosecutor condemning the prosecutor in this case, and another commenter responding to Eugene Volokh’s understatement that “this hardly seems like a just result”:
Can’t you say that it is an unjust, evil, and despicable result, and that if whoever has the pardon power doesn’t exercise it, that person or persons are unjust, evil, and despicable?
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Categories: The Law & The Courts
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June 13th, 2007 at 5:36:02 am
I blame no one involved in the justice system, be they prosecutor, judge or jury. We are a nation of laws, and they followed the law. Sometimes the outcome of justice is ugly (for instance the O.J. Simpson case or when an innocent is convicted of a crime). Blame instead the legislators that created the law, the legislators who failed to change the law retroactively and the legislators who failed to craft a private bill to address this incident.
Now the arguement can be made that the governor of Georgia should have issued a pardon or clemency, if the state Constitution allows for it. However, demanding that the courts correct a perceived injustice is exactly the wrong thing to do. The courts must be constrained by the law, or else we have entered a judicial tyranny, where our lives are ruled by the most unrepresentative branch of government. Injustices must be corrected by the people, through their elected representatives.
June 13th, 2007 at 8:15:39 am
“Justice is ugly” would fly if the prosecutor didn’t have such wide discretion to file charges in this case. Go back and read the original articles–the original prosecutor, quite frankly, was a power hungry jacka** who couldn’t believe some “boy” had the audacity to refuse a plea deal. (Seriously. Read the local paper interview then tell yourself that you can’t just see the condescension dripping from his responses.) It was only _after_ the guy basically told him to stuff his first plea that suddenly this became “child molestation” rather than “two high school kids doing what high school kids do”, but I’m sure that the scourge of underage oral sex has been stomped out in that county!
So, yeah, this is one of those things that makes me regularly marvel at the respect and order for rule of law that we Americans have, because this is one of those times where the “Outraged Parent Shoots Prosecutor” headline wouldn’t faze me. The fact that we have people who say, “Oh well, that’s the law…” explains _exactly_ why the legislature didn’t change it. I somehow doubt, had age and genders been reversed, that we’d even be at this juncture–and that’s proof positive that it’s “not just the law” but “just the prosecutor” now aided and abetted by a despicable AG.
June 13th, 2007 at 8:48:56 am
The arrogance of prosecutors is really a marvel of our times. One might also site Mark Kipnis, the fourth member of the Conrad Black group of accused, who remains on trial even though no evidence has been introduced against him and no one has testified to any wrongdoing. His crime? The prosecutor wanted him to turn state’s against his boss; he said no, there wasn’t any case, and Pat Fitzgerald and his bunch could go pound sand.
June 13th, 2007 at 8:53:31 am
Racism.
The only race is the human race.
Why is this case getting all this attention now? I must have read about this forever ago.
June 13th, 2007 at 9:04:11 am
gahrie,
The judge is also a member of the judicial system.
Duh.
June 13th, 2007 at 9:07:51 am
Apparently what offended the prosecutor– as well as an outspoken GA representative who misspoke about the case and called it “rape” when it wasn’t– was that they videotaped the sex acts.
Is that really a reason to keep this kid– a good student and athelete who wants to go to college and hasn’t done anything else to get him in trouble with the legal system– in jail for 10 years total?
I think not.
June 13th, 2007 at 10:13:47 am
Gahrie, which is more important: rules or people? I think your answer to that question tells a lot about a person.
The Liberty Papers has a great litmus test for whether or not to throw someone in jail. “Do you feel safer?”
June 13th, 2007 at 10:36:48 am
I say we jail the Attorney General for 10 years next time he receives a consensual blow-job. Also the prosecutor. Also the judge that didn’t kick this at trial. Also the anyone with the power to grant him a full pardon. Also Gahrie…
Seriously, prosecutors in this country need to be accountable for being idiots–this case certainly merited jury nullification–which reminds me, every member of the jury, next blow job, tend years in jail…
And people wonder why the criminal justice system is messed up.
June 13th, 2007 at 10:38:35 am
Oh, and while we are on the topic–the kid should be released while the A.G. appeals not the other way round in this case–and the judge should have worded his order as such–immediate release.
June 13th, 2007 at 11:34:36 am
“if you don’t think 10 years in prison for a consensual blowjob between a 15-year-old and a 17-year-old is a grave injustice, there is something very seriously wrong with your worldview.”
I guess there’s something very seriously wrong with my worldview then. I agree that this is harsh and disproportionate, but “grave injustice” and similar rhetoric throughout this post is just so much ridiculous hyperbole. In particular, it is laughably silly to suggest that the President of the United States should be pardoning a Georgia high school kid over a blowjob.
“I cannot understand how anyone could possibly look at this case and not recognize the need to immediately, without hestitation, fix it. The mind truly boggles.”
The people have spoken, through their elected legislators and (presumably) elected D.A. and (presumably) elected state judges and their representation in the jury box. What’s to fix?
Oh, sure, maybe there *is* a CUP problem. Only a few more steps until SCOTUS can decide, although they probably won’t, given that they’re not generally an error-correcting court. Maybe he’ll have some luck on habeas in federal district court.
“I can sort of understand why, on purely procedural grounds, the attorney general would not want the judge’s order to stand, as it probably sets a bad precedent. ”
This is the only intelligent thing you’ve written here.
“But dammit, it’s their own damn fault for ridiculously continuing to push this case forward, putting the judge in a position where the only way to fix the outrageous mess they’ve created is to make bad law!”
Who is this “their” you speak of? Do you honestly think the state AG has any authority whatsoever to order a district attorney not to prosecute a case? Even if he does, why should his failure to lean on the DA in this case months/years ago mean that he should now accept a blatant aggrandizement of judicial power to revise sentences whenever they please?
“the attorney general should go to f***ing Hell, and should be disbarred f***ing immediately”
You have got to be kidding. Disbar the AG for upholding the law? You’ve gone mad.
“Wilson should have taken the same plea agreement as the others”
“Apparently what offended the prosecutor . . . was that they videotaped the sex acts”
A-hah — maybe, just maybe, there’s a tad bit more going on here than just “getting a blowjob from a fellow high-school student.”
“why didn’t the prosectors actually DO THE RIGHT F***ING THING IN THE FIRST PLACE and exercise their prosecutorial discretion to not abuse an archaic legal loophole to destroy a young man’s life for no good reason?!? ”
Because it sounds to me as if it is not at all clear that they did NOT do the right f***ing thing. We have apparently muptiple individuals caught on tape committing sexual acts against the law of the state of Georgia punishable by up to ten years in prison. All but this kid sensibly take the offered plea. He figured he could convince a jury that it was no big deal. He was wrong.
What is there to be outraged about? From the defendant’s perspective, it IS a game of dice. He was guilty and knew it, he decided to make a play at convincing a jury he was “innocent” or that it would contrary to “justice” to punish him for his caught-on-tape violation of the law, and he failed. This kid was fully aware of the risk when he told the prosecutor to shove his plea offer.
Again, I agree that the sentence seems disproportionate, and I encourage him to proceed through the proper appellate channels seeking whatever redress he can get. But no way is this the sky-is-falling obvious grave miscarriage of justice you portray it as, no matter how many times you say it was “for a blowjob” and whine about immoral pricks.
Sean: rules, of course. They are there to protect the rights of the people. Ignore the rules in favor of people today; ignore the rules to the people’s detriment tomorrow.
dcl: I can only assume your drivel about jailing for ten years everyone connected to this case the next time they receive a consensual blowjob is intentional silliness, since a) there is absolutely no indication that *all* consensual blowjobs in Georgia are against the law, and b) in any event, in the eyes of the law, this was not a consensual blowjob, so your comparison is inapposite.
June 13th, 2007 at 12:31:32 pm
” a 15-year-old sophomore … admits the BJ was totally consensual”
Which is irrelevant, because under Georgia law a 15-year-old can’t give consent in the first place.
http://www.avert.org/aofconsent.htm
June 13th, 2007 at 12:42:54 pm
NDLS07,
You’re argument would hold water if that law still existed and was still applied.
However, as a result of this case, that very law was changed, and is now a misdemeanor, with no more than 1 year in prison.
With the penalty dictated by the law, by the representatives, by those who have spoken in the state of Georgia, he has already served penance by more than 1 year EXTRA.
The law must be upheld. And when the law is changed, specifically because of injustice like this, its absolutely ludicrous not to apply it retroactively to the very reason it was changed.
I’m no law student, but something seems fundamentally wrong about the legislature agreeing with the sentiments of people like Brendan and changing the law BECAUSE of Wilson’s trial, and then ignoring Wilson himself.
You’re right, the issue isn’t about a consensual blowjob. The issue is about the law in question. That law has been changed, and the penalty was deemed grossly inappropriate. How the F*** is it fair to force Wilson to serve said penalty?
June 13th, 2007 at 2:00:25 pm
NDLS07 will make a great Georgia DA some day…
Just because a law is followed to the letter, doesn’t mean the outcome is correct. Just because democracy generally works, doesn’t mean the will of the people (represented by the changing of the applicable law by the legislature) is represented by the inaction of elected and unelected officials that do have the opportunity to alter the outcome of this case. Likewise, the will of the people is rarely represented by legal loopholes…
Brendan may have dipped into hyperbole to possibly overstate the injustice(s) commited here, but continued cool disinterest in applying a common sense outcome to this situation is the problem that has repeatedly plagued this case.
June 13th, 2007 at 2:45:26 pm
“I cannot understand how anyone could possibly look at this case and not recognize the need to immediately, without hestitation, fix it. The mind truly boggles.â€
The people have spoken, through their elected legislators and (presumably) elected D.A. and (presumably) elected state judges and their representation in the jury box. What’s to fix?
So everything thats currently in law now is ok cause the elected legislators haven’t seen a need to fix it. Good call.
June 13th, 2007 at 3:06:21 pm
NDLS07, I’ll remember that the next time you’re in trouble over a ridiculous law. After all, that worthless law is more important than you are.
It’s a strange defense you have of all rules everywhere, however. Rules are more important than people… for the sake of people. But if people aren’t that important, why are rules to protect people important?
I wonder your opinion of Saudi law. I mean, the rule is no song or dance. We can’t just let singers and dancers go free without getting stoned. The law is more important than them, right?
June 13th, 2007 at 5:44:11 pm
One disturbing thing about the DA’s behavior is that he continues to appeal because he believes that Wilson committed a separate sex crime that same night, namely the rape of a 17-year old who they ran the train on. The only problem is, Wilson was acquitted of the crime by the jury. The prosecutor is trying to backdoor a long sentence with this ridiculous crime.
June 13th, 2007 at 5:53:34 pm
Another ridiculous part of NDLS’ absurd argument is his diatribe about taking the deal just like everyone else and not rolling the dice. IIRC from my other readings on this case, the reason Wilson did not take the deal just like all the others is b/c it entailed being listed as some type of sexual offender, which would require him to move out of his house and away from his little sister who he is very close with. Also, just like one above poster said, if you’ve read the comments of the original DA in this case, it is almost impossible to come away w/o believing this prosecution was motivated predominantly by race. Kudos to Brendan from graduating from law school with his soul intact, too bad the same can’t be said for NDLS.
June 13th, 2007 at 5:55:23 pm
NDLS07, Does law school really make people this stupid?
There are a lot of philosophical problems with the law, not the least of which that it causes people to support total injustice in the name of protecting something or other about the law. The Law is not about protecting the Law it is about protecting people. In this case the law is unjust. I see no reason that we should continue to support an unjust law simply because it is the law. That is, in fact, about the stupidest thing I’ve ever heard. If you can’t understand why it is stupid then clearly you were a moron before you went to law school or ND made you one. Now there are those that don’t like my debating style–mostly because I’ll call a dumb argument a dumb argument–I see no reason I should suffer fools; if you have something that seems like a reasonable argument on the subject I’m happy to engage with it, but I won’t suffer foolishness that is just stupid on the face of it. As for hyperbole–perhaps a touch, but I don’t see any reason to differentiate the instance of a hormonally driven blow-job between a pair of teenagers and a hormonally driven blow-job between a pair of 60 year olds–so long as all parties consent to the activity and there is an absence of coercion and demonstrable harm or excessive difference in age I don’t see an ethical dividing line between the two cases. So the next time you get a blow-job, consider spending 10 years in jail for it and think weather you feel that is just.
June 13th, 2007 at 7:07:42 pm
Substantive justice is more important than procedural integrity. That’s all I have to say.
June 13th, 2007 at 7:10:49 pm
Just to be clear, I agree with Brendan that this case is a reprehensible case of injustice and that I vehemently disagree with NDLS07.
That being said, before people jump all over the jury for convicting this kid, keep in mind that none of us were in the courtroom. We have not heard the story in the same manner that the jury did.
First of all (and again, remember, I think the kid should be released TODAY and should never have spent 2 years in prison), this was not a situation of young-love. These weren’t two kids who went home after school when their parents weren’t home and let their hormones take over. This was at a party, where freshman girls were given beer and pot and videotaped doing lude acts. Where older guys—seniors—arguably in a position to unduly influence young (and drunk) girls who were probably desperate to be liked by a senior guy—took the opportunity (took advantage) to have sex and oral sex with these girls ON TAPE.
As a juror, that is powerful evidence. I can honestly understand how a jury was able to convict under those circumstances (assuming that they didn’t know he would be sentenced to 10 years)
Indeed, with evidence like that, I can understand the desire to prosecute!
What I cannot understand is the sentence or the desire to bring forth felony charges. I don’t understand how a prosecutor can sleep with himself knowing that he has successfully argued for a 10 year sentence for a blow job, undoubtedly destroying the kid’s life. Obviously, I’m at a total loss at what was going through the mind of the judge. And to force the kid to register as a sex-offender!? Well, no need to repeat what’s already been said.
But I really don’t think I buy into this business about the kid being a sweetheart. He certainly didn’t deserve a felony conviction, but his actions weren’t those of an innocent doe
June 13th, 2007 at 8:00:35 pm
1)For those of you denigrating the rule of law: Our nation depends upon the rule of law. Without respect for the law, you cannot protect the people.
2)For those of you outraged by this case, I have merely pointed out that so far your outrage has been misplaced. It should be directed at the legislators and/or the governor. The law was constitutional, so the courts had the duty to follow and enforce the law. If the law was unjust, it was the fault of legislators, and their duty to correct the injustice.
3) For those of you demanding that the courts correct what you perceive as an injustice by legislating from the bench: That is not the role of the judicial system. Indeed, such legislative meddling has produced some of our worst USSC decisions…. Dred Scott and Roe V Wade are perfect examples of this.
4)I have as yet stated no opinion of the result of the case. However I will point out, as has been stated before, these were not two innocent young lovers. This was a coercered act (regardless of the girl’s statement..she legally could not consent) in public, and recorded. The young man was clearly and obviously guilty of the act as charged. He was given an opportunity to avoid trial. He was found guilty by a jury, and punished as set forth by law.
June 13th, 2007 at 8:11:51 pm
Kudos to Brendan from graduating from law school with his soul intact, too bad the same can’t be said for NDLS.
Thanks. In fairness, though, NDLS probably went to substantially more actual law-school classes than I did. :)
Gahrie, as much as I disagree with you, I have two words of advice for you: Thomas More. His speech from “A Man For All Seasons,” about cutting down the law to get to the devil, is what you want to be quoting here.
That said, I think it is possible to maintain a system of laws while occasionally — VERY occasionally — making exceptions to the normal rules and procedures in extraordinary cases where a truly glaring injustice demands it. There are ways that this can be done without destroying the foundation of our legal system. It should have been done here. It wasn’t.
In any event, statutory rape laws are fundamentally based on the assumption that prosecutors will exercise discretion. Everyone knows that age limits are arbitrary; they are that way of necessity. So it falls to prosecutors to prosecute the cases that truly need to be prosecuted, and leave the others alone. Everyone knows this is so — or do you think L.A. County should have gone after me when I was 18 and Becky was 17 (under the age of consent in California, which doesn’t have a “Romeo and Juliet” law)? Er, assuming hypothetically that we had sex, of course, purely for the sake of argument. :) And yes, I realize this was a rather different situation, and Genarlow Wilson’s conduct was hardly angelic. But I’m trying to make a broader point, namely, that prosecutorial discretion is part of our system of laws, especially with crimes like statutory rape where the legislative cutoffs are necessarily arbitrary. How does that undeniable reality comport with your high-minded theories about how nobody did anything wrong here (except maybe the legislature), and nobody had or has the right (let alone the duty) to change the outcome, because we must all adhere to the letter of the law — rather than its spirit — at all times? Analyzing the letter of the law, without regard to the executive and judicial discretion that’s inherent in enforcing it, misses the point.
Oh, and while Dred Scott and Roe v. Wade may be examples of judicial activism, so, arguably, is Brown v. Board of Education, as I pointed out before. That’s a case where SCOTUS arguably overstepped its bounds, and certainly used some very questionable logic and evidence, to reach an obviously just and necessary ruling — unanimously, no less. They did so not because rules and procedures suggested they should, but because JUSTICE SELF-EVIDENTLY DEMANDED IT, and there appeared to be no other practicable way to achieve the necessary end, because no one else (e.g., Southern legislatures, Southern governors, Congress, etc.) was willing to do the right thing. The Supreme Court was right to intervene under those circumstances, and the “activist” judge is right to intervene here.
There is a balance that must be kept between procedural justice and substantive justice, when conflict occurs between the two. It is wrong to say that EITHER should ALWAYS predominates over the other. You’re arguing against one extreme (that substantive justice must always prevail), but in the process, you are espousing the other extreme (that procedural justice must always prevail). Both extremes are wrong.
June 13th, 2007 at 9:10:39 pm
Brendan: I had a post all typed up using the Thomas More quote in my point #1 in my second post above, but decided against using it, because I thought people would misunderstand it. :)
June 13th, 2007 at 10:21:32 pm
Sir Thomas is actually one of my four personal heroes, along with Thatcher, Reagan and Alexander Hamiliton.
June 13th, 2007 at 11:50:00 pm
I’ll give you Hamilton, the man was a bloody genius, I see your point on Thomas More, the guy has some really good things to say and stood well for his principals. Thatcher is kind of an edge case, but all right–I mean no complaints really, other than eviscerating the British Rail System. Bur seriously how on earth can Reagan be on of your personal heros? The man was a bad actor, senile, either totally incompetent or ordered acts of treason, couldn’t balance the budget of a lemonade stand if his life depended on it AND acted in most respects acted contrary to the suggestions of Mr. Hamilton, who did I mention was a bloody genius. So I’d suggest working on your personal heros some (Though really who am I to talk I like Jefferson and Hamilton–but then I’m a liberal / libertarian, and we are prone to acts of cognitive dissidence.)
June 14th, 2007 at 3:42:26 am
I guess I’m in the minority here. I think that a dude who, at 17 (what, senior in high school), gets a motel room with his buddies, liquors and weeds up some freshman and sophomore girls and videotapes them pulling an oral train is actually not a model citizen. Ten years is a bit extreme, but the “I didn’t do anything wrong” cry rings pretty hollow to me.
June 14th, 2007 at 4:40:52 am
JD,
There’s a difference between “consent” defined legally, and using the word “consent” in plain English.
The girl consented to the oral sex. In other words, she freely admits that she wanted to do the act.
Legally, though, she cannot give her consent to sexual acts.
June 14th, 2007 at 8:06:30 am
lexicon,
I agree that the guy is not an as innocent as some have portrayed him.
That said, a 10 year felony conviction and registry as a sex offender goes way, way, way beyond “a bit” extreme. It is simply VERY extreme.
Just for some perspective, there are individuals who have committed acts of FORCIBLE molestation and acts of attempted forcible RAPE who are serving less time than this kid.
And, as Brendan has already mentioned, if he had had sex with the girl, he wouldn’t currently be in prison.
June 14th, 2007 at 6:53:36 pm
1)For those of you denigrating the rule of law: Our nation depends upon the rule of law. Without respect for the law, you cannot protect the people.
Blind obedience to the law, like blind obedience to anything only leads to problems. There is a reason our system has judges and juries. There is a reason that prosecutors are given discretion. Its because the rule of law can’t take into account the circumstances. Clearly the rule of law was deemed to be incorrect for this type of situation as it was dramatically altered following what most people viewed as a miscarriage of justice in this case.
I haven’t seen anyone here say we need to ignore the law whenever we want to. What I have seen are people arguing, and eloquently so in many cases, that the fact that this law was changed, coupled with the fact that the girl has no objection to what she did and does not feel the need to punish this man, not to mention that he has had no prior run ins with the law, leads one to conclude that something is wrong here, and not only can something be done to fix it, but something SHOULD be done to fix it. Unfortuantely the person with the power to have done so from the beggining, the DA, seems to be on some sort of puritanical crusade or trying to make a name for himself or something.
The rule of law is well and good, but it must be tempered with the idea of the punishment fitting the crime. In this case it should be clear to anyone, and i mean ANYONE that the punishment most clearly does NOT fit the crime. Especially when you consider that a woman who took a shotgun to her sleeping husband recently got sentenced to significantly LESS time than this.
I wouldn’t want this young man anywhere near my little sister, but frankly i could think of people I’d rather have locked up than him too. 10 years in jail doesn’t do ANYTHING for anyone. Its a gross miscarriage of justice and hiding behind the rule of the law as an absolute is a recipe for disaster.
June 15th, 2007 at 1:29:19 am
First of all, I’d just like to thank USCLink, who was the only person to respond to my comment intelligently, on the merits, rather than dismissing me with a snide remark or ad hominem attack, or otherwise trying to intimidate me into conformity. USCLink, you have my utmost respect.
As to the substance of USCLink’s response, I would point out simply that a positive act of the Georgia legislature was necessary to “correct” the “injustice” of this “loophole” and bring “statutory oral” in line with “statutory rape” as a 1-year misdemeanor. The legislature could, at that time, have made the change retroactive to apply to Wilson, since as you all point out, it was his case that led to the change. Yet the legislature did not do so then. I wonder why? Could it be that, again, there is more to this case than the outrageously slanted and sympathetic stories in the AJC and ESPN.com are reporting? I suppose it might. Even if we do have all the facts, though, it doesn’t take much to see that it actually is possible to have a difference of opinion on the case. This is not the obvious slam-dunk that so many of you seem to think.
Scientizzle, David, Brendan, and others pointing out that following the letter of the law to its extreme is silly: I agree. I never claimed otherwise. (Not even when I chose rules over people; see below.) I am well aware of the need to factor in prosecutorial discretion and all that, thank you very much. I am suggesting that given the facts and circumstances of this case, and the flexibility in the law as it existed at that time, the DA was entirely within his rights (and therefore not even remotely close to committing a disbarment-worthy violation) to choose to prosecute this case. Given that he is directly answerable to the people every few years, and that Wilson’s fate was ultimately in the hands of the people, and not the prosecutor, it is no miscarriage of democracy to prosecute a person for violating the law, even if the law carries a harsh penalty. If the jury thought the DA was out of control, they could have nullified. If they thought he was a good kid who didn’t deserve to go to jail, they could have acquitted. They convicted.
In other words, I am quite sure that the prosecutor DID use his discretion here, and decided to prosecute. Prosecutorial discretion doesn’t mean “don’t prosecute,” it means “decide which cases to prosecute and which ones not to.” Just because he prosecuted doesn’t mean he didn’t exercise discretion in that choice. We may not like the choice. In that event, let’s campaign against him when he’s up for reelection. Or hell, if there’s a recall mechanism, let’s invoke it. Or maybe we (or to be more precise, obviously, his constituents) are actually okay with his choice to prosecute here. Given the facts, it does not seem so hard to imagine.
Pretty much all of the above goes for the (presumably popularly elected) state judge too.
“So everything thats currently in law now is ok cause the elected legislators haven’t seen a need to fix it. Good call.”
David, there is no way a reasonable person could draw the inference you drew from my statement that you quoted. I am not talking about whether the law is “ok.” I’m talking about whether what happened to Wilson is an obvious grave miscarriage of justice that requires a presidential pardon and the condemning of Georgia’s Attorney General to Hell and disbarment (I wonder which is worse) because they haven’t dropped everything else on their schedule to free Wilson. Moreover, as has been noted several times, including by me, the legislators DID see a need to fix this law, and did so, prompted specifically by Wilson’s case. But they also specifically declined to fix Wilson’s case. It cannot be that this was a mere error or oversight — they changed the law because of Wilson, so they obviously knew of his case and thought it was harsh and unfair, and they just as obviously knew they could have added a simple line to the bill to make sure that it applied to him rather than only prospectively. Their failure to do so means that while they thought the law needed to be fixed, they also thought Wilson didn’t need to be freed. You or I may not understand or agree with this judgment of the Georgia legislature, but given that it lines up with the DA, the judge, and the jury, I’d say once again that they know something we don’t, or perhaps we all know the same facts but they see it differently because it hasn’t passed through the lens of the national media trying to stir up a story.
Sean: you twist my words, although it’s at least partially my fault. I did say that rules are more important than people in direct answer to your question, but my explanation was meant to convey that the dichotomy you propose is a false one. (Incidentally, this goes for Patrick too.) The people are clearly the “first movers” in any social construct — and what are they constructing, but the rules to govern the society under which they will live together? The rules represent the compact to which all have implicitly agreed. They are there to serve and protect the interests of the people. As gahrie and (IIRC) thebeef have aptly pointed out, when people start diverging from the rules in certain instances in the belief that the substantive result obtained from such divergence is preferred over the result obtained under the rules, the integrity of the very system that enables those people to make such determinations is undermined. As Brendan and others point out, there are built-in mechanisms within the system that allow for such flexibility, which is entirely appropriate. But the failure to exercise such flexibility in the rigid manner that you or any other individual or group wants does not automatically mean that the law, system, or actor is clearly and obviously and manifestly unjust. Rather, it is a reflection of the very flexibility in the system of rules that enables procedural integrity and substantive justice to coexist.
The DA chose to prosecute, the judge and jury did their part, the legislature reacted but chose not to provide a remedy to Wilson himself. Now another judge has (apparently, although I’m not sure why) overstepped the limits of his power to try to “do justice,” apparently unconcerned with the fact that he has usurped and undermined the authority, respect, and proper role of prosecutor, judge, jury, and legislator in so doing. The arrogance here is not prosecutorial, it is judicial. Surely, somewhere above this current judge lies a tribunal that does have the power to overturn this sentence (even if that tribunal is the Supreme Court of the US). By so ruling, the judge has thumbed his nose at those superior courts as well.
This is why I initially said rules over people: because the rules are *made* by the people. The people have it just as much in their power to free Wilson if they so choose. If they don’t, we who don’t like the result can cry “failure of democracy” all we want; the only proof we will have, though, is that democracy worked just as it was supposed to.
(And by the way, it is this refinement — that the rules are made by the people — that answers Sean’s Saudi inquiry. Unless I am much mistaken, the types of rules he refers to there are not democratic in character, but are imposed upon the people by a religious elite. Such rules lack the legitimacy of by/from/of-the-people origin to fit within my viewpoint.)
“Another ridiculous part of NDLS’ absurd argument is his diatribe about taking the deal just like everyone else and not rolling the dice. IIRC from my other readings on this case, the reason Wilson did not take the deal just like all the others is b/c it entailed being listed as some type of sexual offender, which would require him to move out of his house and away from his little sister who he is very close with. ”
I’m not at all sure how this factoid makes my argument “absurd,” but in any event, it is irrelevant, especially when one considers that having rejected the plea and instead being convicted, he will now serve twice as much time, and still be a registered sex offender when he’s released. The only way he avoids registry is if he gets acquitted, and given that he was caught on tape fulfilling every element of the crime, acquittal was hardly likely absent nullification. So he made a really dumb choice here. (Well, several, obviously, but here in particular.) Actually, that raises the question of whether he has an ineffective assistance of counsel claim; it’s hard to imagine a competent attorney advising him he could win a jury trial given these facts.
“Kudos to Brendan from graduating from law school with his soul intact, too bad the same can’t be said for NDLS.”
This would be an example of an attempt to intimidate me into conformity. My soul is quite well intact, thank you very much. The fact that I don’t feel too sorry for an obviously guilty, cocky and arrogant teenager who made a series of outrageously stupid decisions culminating in the just-described boneheaded reasoning that because he doesn’t want to move away from his sister, he’ll risk a near-certain ten years and registry rather than take five years and registry, simply indicates my ability to think for myself instead of drinking all the syrupy Kool-Aid ESPN.com wants to feed me.
My soul, to the extent relevant, actually agrees that the sentence is unjust and disproportionate, as I said at least twice in my initial post. But my brain understands that a) not all unjust and disproportionate sentences require relief, and b) even if this one does, there are proper and improper avenues to deliver it, and inter alia, disbarring the AG is not one such avenue, nor is a presidential pardon. And c) it’s entirely possible, and even likely, that those involved with the case know something I haven’t been told, or see the facts in a different light, that make the sentence less unjust and disproportionate than it seems to me, sitting far away from Georgia, reading biased accounts on the Internets.
dcl: I don’t disagree with your “debating style,” because — in this thread at least — you haven’t displayed one. You’ve just called me names and made conclusory assertions about how you think the world should be. Others have at least made an effort to engage the decidedly non-foolish argument I have put forth. Unless and until you do the same, I have no real reason to respond to your comments — and indeed, nothing of substance or intelligence is in your comments to which to respond.
Brendan: I’ve already gone on far too long and probably will not be read by many, if any, as a result; and I’ve pretty much responded to the substance of your comments along the way as I’ve responded to others. So I will only add this: I don’t there’s any argument that Brown was far more a product of “judicial activism” than either Roe or Dred Scott. Actually, I happen to think Brown was wrongly decided (whoops, there goes a little bit more of my soul, right? Fortunately I know how to make Horcruxes :) ). I think justice demanded that the Court respect Congress’s decision not to exercise the power granted to it, and not to the Court, to enforce the 14th amendment. I think this not because I agree that the 14th amendment should not have been enforced, but because I think the long-term damage from a Court usurping power from the political branches and the people themselves exceeds the damage that would have resulted from the Court remaining in its proper sphere and waiting for a political solution to the problem to emerge.
I realize this means that segregation would have taken its toll on many more citizens, perhaps a generation or more, than it otherwise did. I wholeheartedly concur that this would have been a tragey. I simply question whether the tragedy in which we live today is any better, for while progress has been made in some respects, in many others we still have all the same problems we did 50 years ago — plus the added problem of disrespect and disillusionment with the federal government/courts for overstepping its bounds in the first place, and the continuing trend of rule-by-judges imposing their own elitist views on democratic majorities on any number of issues. Our racial situation has improved, a little, but a) how much better would it be if the people themselves have devised a remedy instead of having it forced on them by the C/court(s), and b) in the meantime, the C/court(s) have seen fit to interfere ever more in every aspect of our lives, emboldened by that fateful decision of the Warren Court to say to hell with judicial restraint, let’s fix this.
Wilson’s case is lamentable. But in my view he is in the same stead as that generation of African-Americans who would have suffered had Brown gone the other way. They are the ones whose suffering move the minds, the hearts, the souls of the people to change their laws, and more importantly, themselves. Which is how the system is supposed to work. Which is how procedural integrity delivers substantive justice. Without the genuine and unforced change in the minds and hearts and souls of the people themselves, we do not make real progress. We have forced “progress” by an (at the federal level anyway) unelected elite, that only grudgingly and incrementally makes any difference at all, while otherwise inspiring mistrust and entrenching views that, once malleable by changing social mores over time, now harden into prejudices borne of being told by a bunch of black-robed elitists, “we know what’s better for you.”
I sincerely hope Wilson’s dilemma moves the people — of Georgia, mind — to demand change. I just as sincerely hope that no judge takes it upon him or herself to violate the limits of his or her office to deliver change that s/he cannot by right provide, and that in the absence of any political effort, the people arguably do not want.