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Tuesday, June 19, 2007
Matt Towery :: Townhall.com Columnist
Inside The Genarlow Wilson Case
by Matt Towery
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Most Americans are now aware of the plight of Genarlow Wilson. Three years ago, the now 21-year-old African-American was sentenced to 10 years in prison under a Georgia law that turned his act of consensual oral sex into "aggravated child molestation" and subjected him to a harsh mandatory jail sentence.

Incredibly, it was "my" law under which Wilson was convicted and sentenced. It was never, ever the law's intention to lock up young people for 10 years for consensual sex.

Turn back to 1995. I was serving my last term in the Georgia House of Representatives. I introduced "The Child Protection Act of 1995." It created harsh penalties for the sexual abuse or other harmful neglect of children. That legislation would never have impacted Genarlow Wilson had it passed into law as it was originally written.

Wilson's misadventure went like this: Back when he was 17, he and some friends had a party. Somebody videotaped Wilson having sexual intercourse with a girl his age and, also that night, oral sex with a 15-year-old girl.

The district attorney charged Wilson with various crimes, including rape. A jury heard testimony and watched the video, then almost immediately determined that Wilson wasn't guilty of rape.

They did find him guilty of aggravated child molestation, primarily because part of the definition of that offense includes "sodomy," which under Georgia law includes oral sex.

What the jury didn't know was that their verdict meant a mandatory 10-year sentence for Wilson. When they found out, they were horrified.

How did Wilson get slapped with such drastic punishment under the law I originally drafted? The answer is the part of this story that no one knows.

When my bill reached the state Senate, the powerful Senate Judiciary chairperson insisted that a bill designed to raise Georgia's age of consent from 14 to 16 be merged with my legislation. This, even though my bill was designed to target truly bad people with truly bad intent.

The result was that a 15-year-old, who wasn't defined as a "child" under my bill, now became one, thanks to the new age-of-consent provision of the bill.

The Senate chair allowed little in the way of clarifying the merged legislation. One thing we did manage to include was a so-called "Romeo and Juliet" provision in the law for statutory rape. It explicitly provided for misdemeanor status if the victim was 14 or 15 years old and the convicted person was no more than three years older than the victim.

Clearly our intent was that persons just like Genarlow Wilson would be allowed misdemeanor treatment for having consensual sex with, in his case, a 15-year-old "child" when he was only 17 himself.

The problem arose when we weren't allowed to add this same explicit language to the portion of the legislation concerning oral sex, which was interpreted as "aggravated child molestation."

Even so, the overall intent clearly wasn't to prosecute young people for consensual sex. We never imagined that prosecutors would so egregiously abuse a good law by means of a technical glitch.

I retired from the Georgia legislature in 1997. It wasn't until many years later that I learned the law was being misapplied. I tried to persuade lawyers challenging the law to include an affidavit from me, which would address the legislative intent of the law. It was never used.

In the case of Wilson, I met with longtime legislative friends in an attempt to get a new law passed that would allow cases like Wilson's to be reviewed. But many of these friends' minds were made up, because they had viewed the videotape of Wilson's sex act and concluded that -- jury decisions aside -- he was guilty of rape.

In fact, the district attorney who had prosecuted the case reportedly was lobbying legislators by showing them an explicit version of the video.

Now a superior court judge has ordered Wilson released. The judge determined that the original sentence was "cruel and unusual punishment." He's right.

But the district attorney and others fight on. After all, they believe, the letter of the law must be followed.

Well, here's a letter-of-the-law thought of my own: In 1988, when actor Rob Lowe was in Atlanta and filmed a sex act with an allegedly underage girl, federal officials warned local television stations that if they were to view the tape themselves, much less broadcast it, they would be considered in possession of and the distributors of child pornography.

It appears the district attorney and the legislators who refuse to recognize the original intent of my legislation -- not to lock up kids for years for having consensual sex -- have lucked out. Federal prosecutors clearly are using reasonable, and I believe correct, prosecutorial discretion in allowing these lawyers and lawmakers to distribute and view this highly prejudicial tape.

But the fact remains that federal law would define this tape as child pornography, with no exceptions provided for legislators or lobbyists. It's too bad everyone seems so hell-bent to carry out "the letter of the law" that has imprisoned Genarlow Wilson, while enjoying reasonable prosecutorial discretion in the interpretation of laws regarding their own actions.

And what about that powerful Senate chair in the Georgia legislature? The one who forced this whole mess? She's still serving, now in the Georgia House. She's never uttered a public word that might help Genarlow.

Passing legislation usually doesn't require much courage. That comes later, if and when you have to suck it up and admit that your -- in this case, my -- legislation creates unintended and very painful results. All the more when it's being used improperly.

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About The Author
Matt Towery is a former National Republican legislator of the year and author of Powerchicks: How Women Will Dominate America.
 
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Please go after the politicians
AND lawyers for child porn!!! ANY time a minor is seen in a tape in a sexual position, it IS kiddie porn!!! While you excuse their behavior, I DO NOT!!!
To see it once is bad enough after hearing about it, but HOW MANY TIMES has that DA seen it??? AND THEY HAVE A RIGHT TO DISTRIBUTE IT??? (Doesn't that mean make copies of and give to other people??)
Is NO ONE interested in the (then) 15 year old who is the subject of all these leechers??
They had to pull all of Lords' movies that were found to be made when she was 15. That was also consentual. She knew EXACTLY what she was getting into!

Why hasn't anyone used this argument
First, I would think those involved would listen to the actual author of the bill. Clearly his hands were tied by this "Senate Chairperson." Why doesn't that person come forward as well. Towery is nationally read, yet he had the courage to tell what happened. And most important--why not prosecute the DA for distributing child pornography. I think Towery is being too kind to him. Lock him for violating "the letter of the law." What, is he too good to be prosecuted, just because he's a DA? The peope fighting this thing are should stop threatening boycotts and turn to the fact that they have another Duke DA on their hands in Georgia.

Towery is right...
...to apolioize. Mandatory minimum sentencing is always wrong. He was a fool not to realize the probability of abuse by career minded prosecutors.

Intent
It does NOT matter what the *intent* of the Law *was*. What matters is the *letter* of the Law.

We don't often have the experience of a particular legislation's author to refer back to. Even if we did, it doesn't matter much. Author's write what they believe is good legislation and then, in debates, it gets changed. That AUTHOR's intent may or may NOT reflect the Legislature's intent.

INTENT only helps us determine how a Law ought to be applied when the *letter* of the Law is unclear, ambiguous, confused/confusing, or easily misconstrued. In those cases, however, I believe the courts ought to rule that the *letter* of the Law is NOT clear enough to be properly enforced and remit the Law back to the Legislature for clarification.


Arguing that BOTH the *letter* AND the *intent*, or "spirit", of the Law be examined for enforcement is to expect prosecutors, judges, and jurors be omniscient and capable of reading the minds of absentee legislators, some long dead, to judge what their original *intent* WAS.

In the end, this ultimately renders LAWS vague, at best, or meaningless, at worst. Hence the phrase, "The Rule of Law", as opposed to, "The Rule of Intent".


Indeed, regardless of the author's whining, the Legislature's INTENT, by specifically NOT allowing the "Romeo and Juliet" provision for oral sex/sodomy, was CLEARLY contrary to his own intent -- The Legislature INTENDED to treat oral sex/sodomy more harshly and severely than intercourse. Regardless of what the AUTHOR's intent *WAS*, the Legislature CLEARLY had a DIFFERENT intent.

(It is not surprising in the moralist atmosphere of Georgia -- where I live -- since sodomy, even consensual sodomy between married couples, is considered worse, more "sinful", than natural coitus, even fornication.)

The ONLY reason that Georgia recently passed legislation APPLYING the "Romeo and Juliet" provision(s) to consensual oral sex IS BECAUSE OF the media attention and publicity arising from THIS miscarriage of justice (re: Genarlow Wilson's case). It was certainly NOT because it is the RIGHT or JUST thing to do. It was because FAILING to do so would have been VERY politically unpopular.

re: InsightingTruth
InsightingTruth wrote:

"... Mandatory minimum sentencing is always wrong..."

>>>>>

I completely disagree.

CONSISTENT sentences are absolutely necessary for any Law to have any real deterrent effect. As it stands, few laws deter criminals since they KNOW that they are NOT likely to get the maximum. Indeed, they're more likely to get away "light".


The problem is NOT the mandatory sentencing. The problem is the LAW itself.

Laws
This is a good example that politicians, thinking of good things, write a law and do not think of the consequences that could happen from its original intent. Politicians do not take the time to look ahead to see if there are any ramafication that could possibly come from it. Good intentions are just not enough in this litigious country.

Liberty First
You say: "CONSISTENT sentences are absolutely necessary for any Law to have any real deterrent effect. As it stands, few laws deter criminals since they KNOW that they are NOT likely to get the maximum. Indeed, they're more likely to get away "light"."

Your complaint here is with the application of the law. There are many problems with the incentivization of career prosecutors, judges, and defense attorneys. None of which are solved with mandatory sentencing.

Our legal system was based in large part upon the British system of common law. The process was one of discovery and precedence. The legislative law system that has evolved in the U.S. over the past two hundred years is the problem. It is a problem because it introduces politics into the system, and politics perverts justice. Mandatory sentencing is one of the more egregious of those perversions. The concept is antithetical to justice.


Liberty First says: "The problem is NOT the mandatory sentencing."

It is the problem we are discussing here.

Liberty First says: "The problem is the LAW itself."

Here you are correct, but I am not certain that you know why. Our legislators, in their zeal to win elections, have turned our once envied legal system into a system of legal plunder.

I know that most people desire justice from our legal system, I suspect that you also expect the system to deliver justice. Requiring judges and juries to render injustice in the courtroom is a poor substitute for fixing the political problems that underlie your dissatisfaction with the way the system operates.

Why not FIX this stupid law
This editorial sounds like making excuses.

Rather than a bunch of mumble jumble and buck passing, why isn't Mr Towney spending his time down in Georgia lobbying to undo the unintended consequences of his 'Morality motivated legislation?

re: Clutch
Clutch wrote:

"Why not FIX this stupid law..."

>>>>>

The Georgia Legislature just recently "fixed" the law by incorporating the "Romeo and Juliet" provisions in it.

However, the reason it is still in the news is because Genarlow Wilson was convicted BEFORE the fix. Thus, the "fix" does NOT apply to his case and cannot be used to reverse his conviction.


The worst part about his case is that immediately after the judge ruled for his release, the State immediately filed an appeal, thereby keeping Genarlow IN prison until the appeal is heard.

An answer for Clutch:
Politics.

Any legislator that votes for sanity on this issue will be branded by "conservatives" as being soft on child predators.

If a 15-year-old girl is completely
wasted, can she consent to sex with another minor? While I agree with MT's effort to correct the legislation, I have a problem applying his efforts to the Genarlow Wilson case. Let's face it, this was not the case of Romeo and Juliet doing the wild thing in the back seat - from what I could see in the video, the girl was completely wasted, he and his buddies knew it, he thought it was a hoot, and he took advantage of the situation. Should he get a pass because they were both minors? Maybe he shouldn't get a 10-year mandatory sentence, but a slap on the wrist just doesn't cut it.

genderized language
When Mr. Towery referred to the "Senate Judiciary Chairperson" and later to the "Senate chair" I figured he must be referring a woman, and indeed by the end of the article I saw that I was right. I guess nowadays the new feminine version of "chairman" is either "chairperson" or "chair."

re: InsightingTruth
InsightingTruth wrote:


"Your complaint here is with the application of the law..."

>>>>>

Incorrect and irrelevant.

You asserted that mandatory sentences are always wrong. I disagreed with your assertion and, briefly, gave my reason(s). That has absolutely NOTHING to do with THIS case or THIS application of the Law.

My disagreement with your sentiment -- my "complaint" about inconsistent sentences -- has nothing to do with the application of the law, and even less to do with the application of the law in Genarlow Wilson's case.

Those are two separate topics -- (a) Genarlow Wilson's case and bad application of bad law and (b) mandatory sentencing: bad (your take) vs. mandatory sentencing: good (my take).

=============================

"... There are many problems with the incentivization of career prosecutors, judges, and defense attorneys. None of which are solved with mandatory sentencing..."

>>>>>

THAT brings upon ANOTHER problem.

A huge part of THAT problem is the popular election of District Attorneys and Judges. Prosecutions and adjudications are, in effect, near-constant campaigning for reelection.

Georgia wants to appear tough on child molestors. Genarlow, by the letter of the law, molested a child. The prosecution was tough on a child molestor...


To compound the problem, our State Constitution specifically acknowledges the Authority of Juries to decide cases BOTH on matters of Fact AND Law. However, they are NEVER informed of this and, in many cases, judges outright Lie to juries when giving the jury instructions, telling them that they are ONLY to judge the case based upon the FACTS and are NOT to judge the Law.

I wonder if a jury empowered and instructed to judge based upon the Law, and the application thereof, AS WELL AS the Facts of the case, would have returned a "Not Guilty" verdict.

=============================

"... Liberty First says: 'The problem is NOT the mandatory sentencing.'

"It is the problem we are discussing here..."

>>>>>

With regards to Genarlow Wilson's case, mandatory sentencing is NOT the problem and never was.


Genarlow is not in this mess because of mandatory sentencing. He is in this mess because of a bad law.

(And over-zealous prosecution so Georgia can be "tough on child molestors"...)

(And a jury denied their authority to review the Law, and the application thereof, and decide the case accordingly...)

=============================

"... Liberty First says: 'The problem is the LAW itself.'

"Here you are correct, but I am not certain that you know why. Our legislators, in their zeal to win elections, have turned our once envied legal system into a system of legal plunder..."

>>>>>

Ya know, if you were talking about assett forfeiture laws, or if this law carried with it a ten-thousand dollars fine instead of a 10 year sentence, I might agree.

There's no "plunder" involved in locking Genarlow up for ten years, however.


The fact that the Legislature did NOT think the full ramifications of this law through AND that it applied to a juvenile engaging in consensual conduct, treating him the same as an "adult" molestor, is what made this law bad. The fact that it specifically treated consensual oral sex more harshly than consensual intercourse made this law bad.

re: InsightingTruth
InsightingTruth wrote:

"An answer for Clutch:
"Politics.

"Any legislator that votes for sanity on this issue will be branded by 'conservatives' as being soft on child predators."


>>>>>

Yeah, well, the Georgia legislature DID fix the law and WITHOUT anyone be branded as soft on child predators.

Re: Liberty_First
As I read your response I see that we agree much more than we disagree on these issues. I find you better informed than I originally thought.

I especially agree with your comments regarding the jury instruction issues. Juries are far more powerful than judges and prosecutors are comfortable with.

Regarding mandatory minimums, we may have to agree to disagree. Legislatively limiting judges, and juries ability to act as their conscience directs, interferes with the delivery of justice. It undermines justice just as ignorant and/or untruthful instructions from the bench do.

Liberty_First
I do not follow the day to day operations of the Georgia legislature, so I do not know what was done to "fix" the law. Therefore, I cannot comment on it.

re: InsightingTruth
InsightingTruth wrote:

"... I especially agree with your comments regarding the jury instruction issues. Juries are far more powerful than judges and prosecutors are comfortable with..."

>>>>>

I think that part of the issue is that juries are being DENIED their authority BECAUSE the government FEARS it's citizens actually JUDGING the government (ie: determining the validity or appropriateness of the application of a law) and having the AUTHORITY to do so.

Properly empowered juries are a necessary bulwark AGAINST this kind of legislative and prosecutorial abuse of power. Governments that seek to control it's citizens -- to render them "subjects" in practice, if not in fact -- as always, attempt to block or deny the citizens' authority OVER the government.


===============================

"... Regarding mandatory minimums, we may have to agree to disagree. Legislatively limiting judges, and juries ability to act as their conscience directs, interferes with the delivery of justice..."

>>>>>

I don't agree. Even WITH a legislated minimum sentence, a properly informed and empowered jury could have (indeed, should have) thrown Genarlow Wilson's case OUT, thus, acting according to their consciences, delivering appropriate justice. The same kind of thing could (and should) happen in MANY other cases.


A huge problem that we have NOW is that justice is frequently undermined with judges handing out light and even, almost, meaningless sentences. As I understand it -- please correct me if I am wrong -- with the exception of capital offenses, juries are rarely, if ever, involved in the sentencing process.

Thus a jury may find a defendant guilty, believing according to THEIR consciences that he ought to pay the penalty, but the judge, for whatever reason, gives the defendant a "slap on the wrist" and lets him back out into the public. Even repeat offenders are (still) getting off light. By and large, criminals have little to no respect or concern for the penalties if they get caught BECAUSE they know that they can pretty much count on a light sentence.


Now, I think I may need to clarify. I do NOT believe that every crime should carry a single, mandatory minimum sentence. I believe it is entirely appropriate to define graduated punishments for, say, the first, second, and third offenses -- preferably with a fourth time and that's IT...

What I believe is that the sentence should be mandatory AND consistent from conviction to conviction. If two people are convicted, as a first offense, for the same crime, they should suffer the same penalty. It should remain consistent.

What we have now is a, "well, you MIGHT get a few thousand dollars in fines, community service, probation, OR, maybe, anywhere from two to ten years in jail". There's absolutely nothing consistent (except in the few cases of mandatory sentencing laws).

What SHOULD be happening, in my opinion, is that criminals should KNOW, ahead of time, that if they get caught and convicted then they will suffer THIS punishment. Period.

That certainly does not interfere with the delivery of justice. If anything it helps prevents softhearted judges and/or jurors from caving to pity-parties and doing justice a disservice by letting someone off light.


If the LAW is bad, however, then juries ought to enjoy AND exercise their rightful authority to say so and refuse to convict or, even, nullify the law (re: Jury Nullification).

===============================

InsightingTruth also wrote:

"I do not follow the day to day operations of the Georgia legislature, so I do not know what was done to 'fix' the law..."

>>>>>

Long story short, the Legislature, essentially, inserted the "Romeo and Juliet" provisions into the Law so that it is a misdemeanor, rather than a felony with a ten-year mandatory sentence, IF there is no more than a three-year (I think -- it might be a two-year) age difference between the parties involved.


As such, Genarlow would still have faced a conviction -- but only for a misdemeanor, NOT a felony sex-offense. (Personall

The road is paved ....
Matt Towney, your posting again proves the old adage that the road to hell is paved with good intentions. If the resulting sentence isn't what you intended, what are you doing about it? Might I suggest an appeal to the Governor to grant this young man a pardon?











Liberty_First
If it's not too late, I offer one last comment.

The best deterrent is certainty of apprehension, not certainty of conviction, nor certainty of punishment.

re: InsightingTruth
InsightingTruth wrote:

"The best deterrent is certainty of apprehension, not certainty of conviction, nor certainty of punishment."

>>>>>

Actually, the BEST deterrent is the possibility of armed resistance.

I do agree with your sentiment, though. You certainly DO express a BETTER deterrent than certainty of punishment.

HOWEVER, various mandatory sentencing laws for possession of a firearm in the commission of a crime, where they are employed, HAVE, indeed, resulted in a REDUCTION in the use and/or possession of firearms in the commission of crimes.

Certainty of punishment may not be the BEST deterrent, but it DOES deter BETTER THAN our current system of willy-nilly punishment ranging from slaps upon wrists to draconian.

InsightingTruth
I guess that what I am trying to say is that, essentially, inconsistent application and enforcement Laws and inconsistent sentencing, essentially, undermine BOTH Law and Punishment.

If application, enforcement, and punishment are inconsistent then the Law is, essentially meaningless -- or, rather, it has no FIRM meaning.
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