At a wild New Year's Eve over two years ago Genarlow Wilson and a group of friends had the kind of bash no parent would want their teenager to attend. Crime scene investigators combing the Days Inn room in the small town of Douglasville, Ga., found evidence of drinking, as well as condoms and wrappers littered all over. Plus, there was a video camera. Genarlow Wilson a Georgia teen academic and athletic star had participated in sex acts that lead to a prison sentence of 10 years on charges of child molestation, in a case that had state legislators reworking the strict law that put him behind bars.
Genarlow Wilson and his friends checked into the Days Inn right off Interstate 20. At some point in the night, according to court documents and evidence presented at trial, some girls came over to party with them. Bourbon and marijuana were consumed. One of the young men turned on a video camera. Other portions of the tape show a second girl, who was 15 and later said she did not drink that night. She was recorded having oral sex with several boys in succession, including Wilson.
Later in the evening, a 17-year-old girl began to have sex with the young men, first in the bathroom, then on the bed. Genarlow is captured on tape appearing to have sex with the girl from behind. Her hand is clearly visible on the floor supporting herself. Witnesses said she was a willing participant.
The next morning, the girl awoke in a stupor, wearing nothing but her socks. She called her mother and said she had been raped. Police came to the room after sunrise and took the revelers in for questioning. Genarlow had already gone home -- he didn't want to miss curfew -- but the video camera remained. In a portion of a tape obtained by Wilson, then 17 and an honor student and star athlete who was homecoming king, is seen having intercourse with a 17-year-old girl, who was seen earlier on the bathroom floor. During the sex act, she appears to be sleepy or intoxicated but never asks Wilson to stop. Later on in the tape, she is seen being pulled off the bed.
Authorities believed the 17-year-old alleged rape victim and said she was too intoxicated to consent to any sexual acts, which is what Georgia law requires, otherwise these acts can be considered rape. On tape, the cops saw a 15-year-old girl, a 10th-grader, performing oral sex on a partygoer and, after finishing with him, turning and performing the act on Genarlow. She was the instigator, according to her mother's testimony. Problem was, the girl was a year under the age of consent. Local prosecutors called the act aggravated child molestation, following the letter and not the spirit of the law, which was designed to prosecute pedophiles.
Such a development would not ordinarily signal a gross injustice. When people are convicted of crime, and no procedural errors precede the convictions, appeals (along with motions to reconsider) routinely fail. The crime of conviction, moreover, appears - by its name - to be a serious one for which a ten-year prison sentence could well be appropriate.
Appearances, however, can be deceptive.
Based on the evidence - which included a videotape of the crime while in progress - the conduct for which Wilson now spends his days behind bars was consensual oral sex with a 15-year-old girl when he, Wilson, was himself only 17 years old.
This recalls the case of Marcus Dixon, an 18-year-old African-American man who was originally sentenced to ten years' imprisonment for aggravated child molestation in connection with having intercourse (which the jury did not conclude was rape) with a 15-year-old girl. In Dixon's case, the conviction and sentence were overturned on appeal, because the Georgia Supreme Court concluded that the intent of Georgia law was to classify conduct such as Dixon's as misdemeanor statutory rape, for which the maximum sentence is one year. In the case of oral sex, however, there was arguably no room for this construction of Georgia law, so Wilson was unable to benefit from the Dixon precedent.
Because Wilson and a 15-year-old girl engaged in nonprocreative sex, his conduct fell squarely within the terms of the aggravated child molestation statute. And though the Georgia legislature subsequently passed a "Romeo and Juliet Law" limiting sentences in cases like Wilson's to one year of incarceration, this law was not written to apply retroactively.
If we did not know that Wilson's disturbing predicament had arisen in the United States, we might assume that we were hearing about a case in a theocracy. His case, however, sheds light on a disturbing fact regarding our criminal justice system, a reality about which we have grown complacent: people in the U.S. are routinely condemned to spend years in brutal prisons as punishment for behavior that harms no one. As Sam Harris persuasively argues in his book, The End of Faith, and as others have also argued, this treatment of victimless crime is symptomatic of a criminal law that is strongly influenced by religious views about sexual morality.
When in classes on constitutional criminal procedure, students are often asked for a definition of "crime." Though responses vary, the typical answer is that crime is a harm that criminals in our society inflict on their victims. Everyone acknowledges, of course, that criminal legislation ultimately defines what is or is not a crime, but the aspiration of the criminal law - by legal scholars' lights - is to identify harmful behavior and try to put a stop to it, through prohibitions and penalties.
Wilson admits he wasn't perfect. Far from it. He drank. He smoked pot. He'd been sexually active since he was 13. And a month or so after that final playoff game, he and some buddies were plotting a New Year's Eve bash. His mama heard them whispering in his bedroom that afternoon. She knew kids whispering usually meant trouble, so she went in and looked those boys up and down.
"Don't do anything stupid," she warned. Sadly he did not listen.
A week later, on the first day of the second semester of his senior year, the police went to the school and arrested the boys. Wilson was charged with four felonies and taken from the building in handcuffs. Not long before, he'd been in the newspaper for being all-conference in football. Now, he was on the front page, branded a rapist and child molester. "It was like I had everything one day," he says, "and the next day I didn't have anything."
Originally the Supreme Court of Georgia denied a motion to reconsider the criminal conviction of Genarlow Wilson, a young African-American man who is serving a mandatory ten-year prison sentence for aggravated child molestation.
Six boys, including Wilson, were arrested on various charges, including rape. District Attorney David McDade said the videotape was critical to his case. "There is no doubt that without the videotape we would have to be relying on the statements of these young
Authorities believed the 17-year-old alleged rape victim and said she was too intoxicated to consent to any sexual acts, which is what Georgia law requires, otherwise these acts can be considered rape.
Six boys, including Wilson, were arrested on various charges, including rape. District Attorney David McDade said the videotape was critical to his case. "There is no doubt that without the videotape we would have to be relying on the statements of these young people, and that would have been a more difficult prosecution," he said.people, and that would have been a more difficult prosecution," he said.
The next morning, Wilson got a phone call that would change his life. He learned from a friend that the 17-year-old had gone to the police to report that she'd been raped.
There's a questionnaire from the Citadel. A brochure from Elon. An envelope from Sewanee. College after college, all wanting the undersized but overachieving Genarlow Wilson to consider their football programs. One open letter, dated three months before everything in this box became a reminder of a life derailed, invites him to take a campus visit. It begins:
Dear Genarlow,
Here you stand, on the threshold of four of the most influential, challenging, and rewarding years of your life.
Being Inmate No. 1187055
Genarlow Wilson is standing on a threshold all right, at the end of the last hall of Burruss Correctional Training Center, an hour and a half south of Atlanta. He's just a few feet from the mechanical door that closes with a goosebump-raising whurr and clang. Three and a half years after he received that letter, he's wearing a blue jacket with big, white block letters. They read: STATE PRISONER.
Once, he was the homecoming king at Douglas County High. Now he's Georgia inmate No. 1187055, convicted of aggravated child molestation.
When he was a senior in high school, he received oral sex from a 10th grader. He was 17. She was 15. Everyone, including the girl and the prosecution, agreed she initiated the act. But because of an archaic Georgia law, it was a misdemeanor for teenagers less than three years apart to have sexual intercourse, but a felony for the same kids to have oral sex.
Afterward, the state legislature did change the law to include an oral sex clause, but that didn't help Wilson. In yet another baffling twist, the law was written to not apply to cases retroactively, though another legislative solution might be in the works. The case drew national condemnation, from the "Free Genarlow Wilson Now" editorial in The New York Times to a feature on Mark Cuban's HDNet. He was a good student, with a 3.2 grade point average. He was popular, the school's homecoming king, liked by students and teachers. He never got into any trouble with the law. He was a track and football star. His last two years, he was the defensive back assigned to cover Calvin Johnson, the former Sandy Creek High star who went on to Georgia Tech and was #3pick in the NFL draft. Wilson studied film, trying to figure out how to outsmart a better and taller athlete. He did well, coaches remember, limiting Johnson to four catches in two games.
Now 20, and just two years into a 10-year sentence and a judge has recently ruled that the sentence represented a grave miscarriage of justice; consider also Had Wilson and the 15 year old had sexual intercourse, his maximum sentence -- according to a Georgia Supreme Court ruling in the Marcus Dixon case -- would have been one year. That case, of course, made its way to Oprah. But wait. It gets worse. At the same time that Wilson was being sentenced to 10 years in prison, down the hall in the courthouse, a 27-year-old high school teacher got a slap on the wrist (probation, 90 days in jail, not prison) for having sexual intercourse with an 16-year-old male student. Clearly race, the young ladies involved were White, and gender play apart in this case. The small-town (Douglasville estimated population in 2005: 27,568) district attorney and prosecutor -- Eddie Barker -- made Wilson pay for the effrontery of insisting on his innocence. Barker is quick to point out that he offered Wilson a plea after he'd been found guilty -- the first time he has ever done that. Of course, the plea was the same five years he'd offered before the trial -- not taking into account the rape acquittal. 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."[Also, Douglasville is predominantly white; Wilson is black.]
Additionally with sexual intercourse, the judge has discretion. With aggravated child molestation, the legislature set the minimum at 10 years. Nevermind that the intent of the legislation was to prosecute adults preying on pre-adolescent children, not two teens where the younger teen initiated the sexual contact. But there are also other cases of adults—white adults—prosecuted by the Douglas County District Attorney’s office for sex crimes involving minors and received far lighter sentences than any of the teens in the Douglasville Six case.
Case in point: Jack Stewart, a 24-year-old volunteer coach at Heirway Christian Academy in Douglas County, who received 30 days in jail and 10 years probation for fondling the 15-year-old daughter of a couple whose house he was living at temporarily. McDade notes that he objected in court to the “inappropriately light” sentence.
In the case of 26-year-old George Tsimpides, First Offender status was extended in a sex crime. Tsimpides received 20 days in jail after he pleaded guilty to luring a 15-year-old girl he’d met on the Internet to Arbor Place Mall with the intention of engaging in sex with her. McDade says he publicly objected to that sentence.
On this Monday, a state judge said that Wilson should be freed from prison and not be listed on Georgia's sex offender registry. Monroe County Superior Court Judge Thomas Wilson called the 10-year mandatory sentence he received "a grave miscarriage of justice" that violated the constitution.
But state Attorney General Thurbert Baker immediately announced his intention to appeal the decision, saying the sentence was valid. That means that Wilson will remain behind bars for now.
Baker is seeking an expedited appeal before the Georgia Supreme Court, which has already ruled against Wilson once.
Bernstein said it was agonizing to tell Wilson what had happened.
"Word had already gotten through the jail that he was going to be released, then I had to have a phone call with him and tell him, no, he was spending more time in jail even though the order said he should get out," Bernstein told CNN.
Prosecutors questioned why Wilson had not accepted a plea deal on the table that would allow him to serve a maximum of five years in prison and also avoid being listed on the state's sex offender registry when he's released from prison.
"Wilson, through his attorneys, rejected all of those offers," Baker said in a statement. Wilson has served more than 28 months in prison. The lawyer for Genarlow Wilson said Tuesday that she is pushing to get him released on bond. B.J. Bernstein said that she is seeking a hearing in Douglas County court, even though the district attorney there has said he opposes the move.
