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Ten Years in Prison for 17-Year-Old Who Had Consensual Oral Sex with 15-Year-Old:

The Georgia Supreme Court just upheld this. The sentence strikes me as unduly harsh even on its own terms, but it seems especially unjustifiable given that:

  1. The age of consent in Georgia is 16.

  2. In 2006, the Georgia Legislature amended the statute to provide that oral sex between an under-18-year-old and a 13-to-15-year-old is only a misdemeanor, with a maximum penalty of a year in jail. This revised statute would have thus made the defendant's conduct a misdemeanor had he committed his crime after the statute's enactment, but the statute expressly provided that it wasn't retroactive.

  3. Even at the time the act occurred, genital sex between an under-18-year-old and a 14-or-15-year-old was also a misdemeanor.

  4. This defendant had no criminal record that would justify an especially long sentence.

Here's a brief opinion from presiding justice Carol W. Hunstein:

Wilson was convicted of aggravated child molestation based upon an act of oral sodomy performed on him by victim T.C., which was documented on videotape and seems to show that the victim's participation in the act was voluntary. Wilson was 17 years old at the time of the act; the victim was 15 years old. Pursuant to the version of the aggravated child molestation statute then in effect, Wilson was sentenced to ten years imprisonment without possibility of parole. See former OCGA § 16-6-4 (d) (1).

In 2006, the Legislature amended OCGA § 16-6-4 to provide, inter alia, that aggravated child molestation involving an act of sodomy is only a misdemeanor when the victim is between 13 and 16 years of age and the convicted person is 18 years of age or younger and is no more than four years older than the victim. OCGA § 16-6-4 (d) (2). Although the situation in this case would fall within the ambit of the current statute, which became effective July 1, 2006, while Wilson's appeal from the affirmance of his conviction by the Court of Appeals was pending before this Court, see Ga. L. 2006, p. 379, § 11/HB 1059, the Legislature expressly chose not to allow the provisions of the new amendments to affect persons convicted under the previous version of the statute. See id. at § 30 (c). Accordingly, while I am very sympathetic to Wilson's argument regarding the injustice of sentencing this promising young man with good grades and no criminal history to ten years in prison without parole and a lifetime registration as a sexual offender because he engaged in consensual oral sex with a 15-year-old victim only two years his junior, this Court is bound by the Legislature's determination that young persons in Wilson's situation are not entitled to the misdemeanor treatment now accorded to identical behavior under OCGA § 16-6-4 (d) (2).

The sentence sounds mandated by state statute, and I don't think there's any Cruel and Unusual Punishment Clause problem here. One can argue that the distinction between between genital sex and oral sex violates the Equal Protection Clause, but while this argument was accepted in a related context by the California Supreme Court, which held that the distinction lacked a rational basis, it was rejected by the Georgia Supreme Court in Odett v. State, 541 S.E.d 29 (2001), on the grounds that "General Assembly could reasonably conclude that the psychological well-being of minors is more damaged by acts of sodomy than by acts of intercourse" — not very plausible grounds, I think, but likely sufficient to pass the rational basis test (see also this related item from the California Appellate Report blog). The equal protection argument also seems to have been procedurally forfeited, because it wasn't raised until after the guilty verdict; and while the defendant might have argued that there's an equal protection violation in treating pre-2006 actors differently from post-2006 ones, that argument likely wouldn't work, either, and in any event likely wouldn't have been made.

But while the conviction is constitutionally permissible, it hardly seems like a just result. This is so even given that the sex here was public and videotaped and thus more likely to have been psychologically and emotionally injurious to the girl. Such uncharged and even not independently illegal aspects may be relevant in evaluating the overall moral fairness (though not legal validity) of the sentence, but they nonetheless don't seem sufficient to justify a 10-year-term here — especially when the same conduct would have been treated so much more lightly had it happened after the statute was changed, and had it involved genital sex (which tends to be more dangerous for the girl in various ways than oral sex).

The courts seem to have done their job right here, but the legislature didn't, and quite possibly the prosecutors didn't (though I realize that this raises complex questions about prosecutorial obligations). I hope, with Doug Berman (Sentencing Law & Policy), that the Georgia Board of Pardons and Paroles would correct this injustice.

Thanks to How Appealing for the pointer.

Related Posts (on one page):

  1. Genarlow Wilson's 10-Year Prison Sentence Set Aside as Cruel and Unusual Punishment:
  2. Sex and Liberty:
  3. Race and the Wilson Case:
  4. Ten Years in Prison for 17-Year-Old Who Had Consensual Oral Sex with 15-Year-Old:
Taeyoung (mail):
Is the governor permitted to pardon him?
12.18.2006 2:30pm
Eugene Volokh (www):
I believe that in Georgia the pardon power is in the Georgia Board of Pardons and Paroles, not in the Governor.
12.18.2006 2:31pm
plunge (mail):
I like to call the the "rational basis test" the "could a junkie strung out on LSD babble slightly on topic about the subject" test. i.e. the definition of "rational" doesn't actually include things like logic, sense, facts, or anything other than the ability to string some words together.

This is the sort of case in which a governor should really step in.
12.18.2006 2:32pm
JohnO (mail):
I seem to recall this statute being an issue of public interest a few years ago because a highly-touted high school football player got a 1-year sentence under similar circumstances. I believe the Governor eventually pardoned him or commuted his sentence.
12.18.2006 2:39pm
Rich B. (mail):

This is so even given that the sex here was public and videotaped and thus more likely to have been psychologically and emotionally injurious to the girl.


What makes you think that there was a girl involved? I saw no pronouns in the Opinion or AP report.
12.18.2006 2:48pm
uh clem (mail):
Interesting point, Rich B. But while you won't find a pronoun, you'll find the wore "girlfriend" here:
http://howappealing.law.com/121806.html#020546
12.18.2006 2:57pm
CEB:
Meh. Here is an article about a teenager who was given a life sentence for a stick up, by a judge who gave a murderer a 10 year suspended sentence. Via Hit &Run
12.18.2006 2:57pm
PatHMV (mail) (www):
I'm particularly disappointed with the conduct of the prosecutor in this case.

According to one report, D.A. David McDade chose to prosecute Wilson for this felony when Wilson refused a plea bargain to charges brought by a heavily intoxicated 17 year old girl also on the videotape:

McDade said Wilson could have had a better outcome if he had accepted the plea deal. "What I believe is that Genarlow Wilson listened to people who were trying to use this case for another agenda and he followed their advice," he said. "Do I believe that [in] Genarlow Wilson's case justice would have been served if he accepted a lesser plea? Sure I do. I wish he had of. Sure I do."


As a former prosecutor, this distresses me. Sure, I occasionally used plea bargains, and it is appropriate to give a defendant some benefit for accepting responsibility for his crime. But you don't use the threat of an unduly harsh charge in a legally unrelated matter to induce a guilt plea to a lesser offense which the defendant did not commit. The D.A. seems to be saying that, had Wilson agreed to plead guilty to misconduct with the 17-year old, then he would not have been charged with the crime involving the 15-year old. The same jury which was, by the law, compelled to find him guilty of the oral sex charge very quickly acquitted Wilson of raping the 17-year old, easily finding the videotape to show consensual sex with her.

Plea agreements are not just about the amount of time given. First and foremost, they must be about the truth. No prosecutor should abuse his discretion by threatening unrelated harsh charges to induce a plea to something for which the defendant would be acquitted.
12.18.2006 3:00pm
FantasiaWHT:

it was rejected by the Georgia Supreme Court in Odett v. State, 541 S.E.d 29 (2001), on the grounds that "General Assembly could reasonably conclude that the psychological well-being of minors is more damaged by acts of sodomy than by acts of intercourse


Sodomy in the form of broomsticks and rectums, sure. Sodomy in this form, considered by a growing number of teens and even tweens to be casual, "not sex", or less intimate than a kiss? I don't think so.
12.18.2006 3:02pm
SimonD (www):
In the California case, and I assume that the same theory is at issue here, "[d]efendant contended that under the facts here imposition of mandatory lifetime registration as a sex offender denied him equal protection of the laws under the state and federal Constitutions because someone convicted of unlawful intercourse under the same circumstances would not face such mandatory registration." I didn't get a lot of sleep last night, and I've clearly had too much coffee to make up for it, because no matter how many times I read this, it doesn't make any more sense. Could someone explain how different crimes having different punishments can be an equal protection violation?
12.18.2006 3:03pm
uh clem (mail):
s/wore/word
12.18.2006 3:04pm
Hank:

"it 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?
12.18.2006 3:05pm
Anonymous coward:
This sentence would never stand if Bill Clinton were still in office.
12.18.2006 3:25pm
Kevin Hayden (mail) (www):
It's quite possible that the 15-year-old suffered no damage at all, but the lege has decided the 17-year old will be anally raped if he happened to make the girl smile.

Mandatory sodomy (not oral) of the Georgia legislature seems like the only just punishment to me, for the damage done to the 17-year-old, which will certainly occur.
12.18.2006 3:33pm
Guest44 (mail) (www):
This is an abomination.
12.18.2006 3:34pm
TDPerkins (mail):
Rich B. wrote:


What makes you think that there was a girl involved?


From the post:


This is so even given that the sex here was public and videotaped and thus more likely to have been psychologically and emotionally injurious to the girl.


Yours, TDP, ml, msl, &pfpp
12.18.2006 3:41pm
Southern Attorney:
The worse thing about this decision is that most likely it will be a sentence to be sodomized, given the widespread prison rape problem. Now that is cruel and unusual punishment.
12.18.2006 3:51pm
SMG (mail):
How does one get the ear of the court?

Oh, wait, there is no way.

Which is one reason that the courts go so far afield.

Clearly, despite its obvious cruel and unusual aspects, the punishment afforded Wilson (Genarlow Wilson VS The State) is preposterous.

But, no problem, we can just make another criminal where there was none.

Merry Christmas.
12.18.2006 3:53pm
Justin (mail):
I believe that in Arizona the pardon power is in the Georgia Board of Pardons and Paroles, not in the Governor.

Huh?
12.18.2006 3:54pm
Eugene Volokh (www):
Rich B.: I think the 15-year-old was a girl because I read more than just the AP report and the Georgia Supreme Court opinion (and even more than the How Appealing item).

FantasiaWHT: I agree that oral sex is not likely to be more damaging to a 15-year-old than genital sex; but I should note that the Georgia Supreme Court's decision noting this as a possible justification for the statutory distinction came in a case that seemed to involve oral sex, with no mention of broomsticks.
12.18.2006 3:55pm
SeaLawyer:
Here is an article with a few more details.
12.18.2006 3:56pm
Wintermute (mail) (www):
Anyone have a copy of the discovery?
12.18.2006 3:59pm
Al (mail):
I wonder what the outcome of the case would have been if the genders had been reversed.
12.18.2006 4:00pm
Eugene Volokh (www):
Justin: It's all that Georgian imperialism, I tell you. Or maybe it's that I was just thinking about an interesting 1915 case from Arizona at the time I was writing the comment. In any case, Sasha e-mailed me about the same matter, and I corrected the comment (before seeing your response).
12.18.2006 4:01pm
Scot (mail):
I work down the hall from the juvenile administrator in my county, and we were discussing a case where two juveniles in much the same circumstances were both charged. I asked her why both instead of just the 2 year older boy. Her response was that any sex with an underaged person is against the law in this state. Any time a parent brings a complaint against one underaged person, she, as a matter of policy, gives a complaint form to the other child's parents too. I her jurisdiction at least, the girl would have gotten the same charge as the boy, but the sentancing would be entirely up to the judge. Still, this judge has been pretty even handed in these cases.
12.18.2006 4:03pm
Hattio (mail):
PatHMV
Prosecutor's who don't use the threat of higher charges to induce a guilty plea to lesser charges. Do these people exist? Do they ride unicorns to work?

SMG,
The courts didn't screw up here. As a matter of fact, unless you want activist judges who over-rule perfectly valid (bus abysmally stupid) laws, there is no other way they could have gone. Point yourself at the legislature. There is a really easy way to get their ear, call them, or better yet, vote them out.
12.18.2006 4:08pm
CrosbyBird:

I wonder what the outcome of the case would have been if the genders had been reversed.


Officer: You're right, this is very serious, we better track this kid down and give him his luckiest boy in America medal right away.
12.18.2006 4:11pm
Cecil Franklin (mail):
As for the cruel and unusual punishment argument, if Georgia law is consistent with Oregon law, the setence, no matter if mandatory or not, just cannot exceed the statutory maximum sentence, generally speaking. So, if the mandatory sentence is less than the legal max, no argument.

It is too bad, however, this kid is in prison. As another former prosecutor, it seems this is an instance of someone using their power to show they have it, rather than effecting justice. A retired judge who was a District Attorney at one point told me that the power in the DA's office comes not from when to prosecute, but when not to prosecute. Seems this philosophy was absent.
12.18.2006 4:22pm
tsotha:
Given the legislature changed the statute to apply to crimes committed after he was charged, can they amend it again to apply retroactively to this case?

Also, the judge said it had to be a felony, but was ten years the minimum sentence?

It's hard to believe nobody with the authority to do so will reduce this sentence.
12.18.2006 4:26pm
SeaLawyer:
What is really odd about the case is Wilson had sex with a 17 year-old who was too drunk to know what was going on, but he is found not guilty on that charge. Then is given 10 years for consensual oral sex with a minor.
12.18.2006 4:31pm
Tryptich:
The Judge should be ashamed. The prosecutor should be ashamed. 10 years. No parole. Consensual oral sex. Both underage. Shame. Shame. Shame.
12.18.2006 4:31pm
markm (mail):

I wonder what the outcome of the case would have been if the genders had been reversed.

The 17 year old girl would have had to fend off advances from desperately horny pimple-faced boys every time she went out. It seems awfully harsh, but there's no avoiding natural consequences...
12.18.2006 4:37pm
CrosbyBird:

As another former prosecutor, it seems this is an instance of someone using their power to show they have it, rather than effecting justice.


I can empathize with (in disagreement, mind you) the prosecutor who in good faith believes that this young man actually did commit the more serious crime (of non-consensual sex with the intoxicated 17-year old). Recognizing an imperfect system and its flaws, he might think justice best served by some punishment, even if for the "wrong" crime.

Although how much prosecutorial discretion is appropriate? Say I'm a prosecutor who has a case of a guy smoking a joint in public, and I believe it's a good kid in violation of a bad law. Should I take it upon myself to subvert the will of the legislature by not enforcing the law? Is that the proper role?

I ask as one considering a switch from private to public sector. My leanings are decidedly libertarian; to what degree is one allowed/expected/required to exercise one's beliefs of fairness and justice over that of the laws passed in your jurisdiction?
12.18.2006 4:38pm
TDPerkins (mail):
This seems to me to be a case where the procedures of the court--if need be, as mandated by an amendment to the constitution--should permit the defense to inform the jury of the possible sentence a conviction entails, and for the defense to invite the jury to nullify the prosecutor's decision to prosecute on the grounds that an injustice would occur, if the decision is based solely on the evidence and the law.

Yours, TDP, ml, msl, &pfpp
12.18.2006 4:40pm
James Dillon (mail):
Tryptich,

Your assertion that the judge should be ashamed implies that the judge acted somehow inappropriately. What did the judge do wrong in this case? What should he have done differently?
12.18.2006 4:42pm
htom (mail):
Long ago, when dueling was at times a practice that was tolerated, did those who were offended by such trials and verdicts ever demand satisfaction from prosecutors or judges?
12.18.2006 4:50pm
Clayton E. Cramer (mail) (www):

Long ago, when dueling was at times a practice that was tolerated, did those who were offended by such trials and verdicts ever demand satisfaction from prosecutors or judges?
Certainly. That's why many of the Southern states required judges, lawyers, legislators, and in some cases, militia officers, to swear an oath that they had not participated in a duel after some particular date in the past. My book Concealed Weapon Laws of the Early Republic (Praeger, 1994) has more details.

It would appear that this guy got ten years for failing to take the plea bargain on what was certainly the more serious crime: rape of an intoxicated 17 year old.
12.18.2006 4:57pm
PatHMV (mail) (www):
CrosbyBird -- There's no hard and fast line. Certainly it would be inappropriate to adopt a blanket rule by which you decided to totally ignore a law simply because you felt it unjust or unwise.

To my mind, the appropriate use of prosecutorial discretion is to look at the particular circumstances of an alleged crime and decide whether prosecuting under the law is within the ambit of the evils which the law was aiming to combat, or simply if, in light of all factors involved, application of the law would work a particular injustice on this particular set of parties.

In Louisiana, for example, for statutory rape to occur, one party must be over 18, the other under 18, and there must be at least a 2 year difference in their ages. So an 18 and a 17 year old are ok, but a 21 and a 17 year old are not, nor is an 18 and a 15 year old. I think it's safe to assume that the legislature picked those ages, and the 2 year gap, simply because there has to be some cut-off. The goal of the law, obviously, is to prevent older men (I'm using the typical genders, not to deny that it can happen the other way around, too) from taking advantage of younger girls, who society views as generally not emotionally or intellectually mature enough yet to make wise decisions in matters sexual.

So if the prosecutor comes across a 20 year old and a 16 year old, who started dating maybe when he was a senior and she was a freshman, and there is no real indication of undue pressure or coercion involved, it would be an appropriate use of prosecutorial discretion, in my mind, to decline to prosecute that case. It would also be appropriate, to me, to decide whether societal mores had perhaps changed since the legislature enacted that law.

This is fundamentally different from the role of judges and juries. Most state constitutions, and the federal constitution, vest these decisions specifically in the hands of the prosecutors, who are generally elected or appointed directly by (and answerable to) an elected official. Judges (and juries) are not vested with discretion under our system, and judges in general are much harder to change out should one reach the wrong result, or a result inconsistent with the desires of the community. And the decision of a prosecutor not to prosecute sets no precedents which must be followed elsewhere, leaving each community free to make its own decisions about its current standards and its current priorities.
12.18.2006 5:01pm
PeterH:
Why do I assume that the reason "consensual sodomy" has a different punishment than "consensual intercourse" is that the legislature took for granted that it would be gay sex?
12.18.2006 5:02pm
TDPerkins (mail):
Clayton E. Cramer wrote:

It would appear that this guy got ten years for failing to take the plea bargain on what was certainly the more serious crime: rape of an intoxicated 17 year old.


You say as if you think you have some evidence it was not consensual, or that laws assigning blame for inebriated sex should always fall on the male
(or least the least inebriated) party are good and appropriate laws.

In any case, you can't have read the post too closely.

The "guy" was boy of 17, and his imputed "victim" a girl of 15.

Yours, TDP, ml, msl, &pfpp
12.18.2006 5:03pm
Russ (mail):
I can see it now - investigators patrolling the halls of every high school in Georgia asking freshman and sophomore girls, "Have any of those nasty seniors tried to pick you up and/or do anything sexually with you, especially if you consented?"

Thank God none of us ever did that when we were in high school!

/sarcasm off
12.18.2006 5:03pm
Darcy Lane (mail):
I disagree with most of you people. Those boys are dispicable, videotaping the abuse, yes abuse, of a girl who was intoxicated and too young to make a rational decision about her actions. The next time that situation arises, maybe ONE of the boys involved will step up and say "THIS IS WRONG. WE SHOULD NOT BE DOING THIS. THIS IS DAMAGING TO THIS YOUNG GIRL. WHAT IS WRONG WITH YOU PEOPLE?" and escort her home or at least out of harm's way.

I find this sentence very appropriate and just. I'm sick of the predatory behaviour of young males, and the misogynistic comments above probably reflect what the parents of those boys taught them- girls are objects to be used and to be made sport of. That's why there are statutory rape laws. At 15, she cannot make a mature decision about sex, and the events prove this to be true. Those boys had the responsibility to at LEAST not take part in abusing her, and I personally think they had the responsibility to stop the disgusting actions.

It would go too far to hope they receive the same treatment in prison, so I am not advocating that. I hope they learned about personal responsibility and basic human behaviour. You don't treat a young woman like that.

Justice is served.
12.18.2006 5:04pm
htom (mail):
Further reading leads me to understand that five other males (17 and 18) at the party, who also had consentual sodomy with the 15-year-old minor, took felony guilty pleas with five year sentences. I am not sure, but I suspect that in an hour or two I'm going to be even more outraged.
12.18.2006 5:05pm
TDPerkins (mail):
Darcy, are you trying to sound like Scrappleface?

Yours, TDP, ml, msl, &pfpp
12.18.2006 5:06pm
PersonFromPorlock:

No prosecutor should abuse his discretion by threatening unrelated harsh charges to induce a plea to something for which the defendant would be acquitted.

I've asked this question before, but doesn't a DA's threatening harsher treatment if the accused exercises his right to a trial violate 18 USC 242, which "makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States?"
12.18.2006 5:09pm
Eugene Volokh (www):
SeaLawyer: It's of course hard to tell for sure what happened with the 17-year-old girl, but juror Marie Manigault, quoted on the ABC News story on the subject (Mar. 9, 2006), reported that the jury saw the rape case as very weak: "[I]t wasn't even an hour. We immediately saw the tape for what it was. We went back in and saw it again. Then everybody immediately said not guilty."

I take it that the jury therefore concluded that the 17-year-old girl wasn't "too drunk to know what was going on." Georgia law adopts the "constructive force" doctrine, under which the "force" requirement of rape can be satisfied by a finding that "the victim [was] physically or mentally unable to give consent to the act, as for example when she is intoxicated, drugged, or mentally incompetent such that she is unable mentally to give consent to the act." Unless the jury was somehow not properly instructed on this, I would assume that they concluded that the 17-year-old girl wasn't so intoxicated that she was unable to give consent.
12.18.2006 5:13pm
Russ (mail):
Darcy,

You sound very bitter, kinda like you would throw most guys in jail just for their gender.

Here's a question - if she's not old enough to make a mature decision about sex, is she old enough to make that same decision about, oh...I don't know, abortion?
12.18.2006 5:14pm
Seamus (mail):

At 15, she cannot make a mature decision about sex, and the events prove this to be true.



But at 17 or 18, those boys are conclusively presumed to be thoroughly mature and rational and to have cooly calculated the nature and consequences of their actions. Oh, yeah, and I'm sure their minds were completely unclouded by alcohol.
12.18.2006 5:16pm
Eugene Volokh (www):
I sympathize with those who would condemn 17-year-old boys who have sex with 15-year-old girls. A 10-year prison sentence seems to me harsher than is necessary to provide what deterrence is possible, harsher than is necessary to send the proper message, and harsher than what is justified given the 17-year-old's likely moral culpability. But I can certainly see arguments for a substantial sentence, and perhaps even a 10-year-one.

The difficulty is that the Georgia Legislature has long thought that genital sex between 17-year-olds and 15-year-olds is a relatively minor offense (a misdemeanor punishable by a year or less in jail), and now thinks that even oral sex between 17-year-olds and 15-year-olds is a comparably minor offense, when the offense happens in 2006 or later. That's what makes it especially hard for me to see how a mandatory ten-year prison term for this defendant's conduct makes sense, given the Georgia Legislature's own judgment of the severity of this sort of conduct.
12.18.2006 5:23pm
Woodstock (mail) (www):
Ridiculous case. This shows the problem with statutory rape laws. A girl at 15 is possibly more capable of consent than a 17-year old guy because girls mature so much faster. This poor guy now has to be in prison for 10 years plus register as a sex offender for being with someone who was probably equally capable of consent. Just another examples of the dangers of trying to legislate grey areas of morality.

The judge had no choice. But the guy should be pardoned and have his record cleared.
12.18.2006 5:30pm
CrosbyBird:

A 10-year prison sentence seems to me harsher than is necessary to provide what deterrence is possible, harsher than is necessary to send the proper message, and harsher than what is justified given the 17-year-old's likely moral culpability.


If we honestly believe that any sentence, of any severity is likely to stop 17-year olds from having sex, we've already forgotten what it means to have been seventeen ourselves.

What message are we looking to send? That teenagers aren't allowed to make decisions about what feels good to them because society imposes an arbitrary age distinction? That's not a message that a large portion of the audience is going to buy: not from their parents, not from their teachers, not from their government.

And what sort of value does it add to society to destroy the lives of children (and they are still children) for the mistakes they made without significant moral culpability. What chance does this kid have after 10 years in a prison cell, a felony conviction, and registration as a sex offender?

An honor student, an athlete, a clean kid with no criminal record. This is who we should be sending to prison? I struggle mightily to imagine how society is better off with this result.
12.18.2006 5:37pm
Woodstock (mail) (www):
There should only be laws against unambiguous violations of consent. Hate to be the devil's advocate on this sort of thing, but I actually believe that there is a reason why humans biologically mature well before the standard age of 16. Evolutionarily, there is no reason to believe that humans aren't equipped to make decisions about sex until 16. Either the laws need to lower the age of consent to a less ambiguous age, or the penalties should be much less harsh. Sexual behavior that would have been normal 200 years ago should not qualify you as a sex offender. 200 years ago, women in her age-range would already be married.
12.18.2006 5:37pm
SeaLawyer:
Eugene,
All I really have to go on is the following from the article I posted a link too above

In a portion of a tape obtained by "Primetime," 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.

This is also the girl that went to police the next day saying she was raped.
12.18.2006 5:49pm
SeaLawyer:
The link to the abc news article again dated Feb 7th 2006, which has also has the quote Eugene referenced.
12.18.2006 5:55pm
Virginia:
I agree that this sentence is ridiculous (assuming the "victim" did, in fact, consent). But there seems to be a tension between the attitudes on display here and our society's vociferous condemnation of older men (but not women) who have sex with teenagers under the age of consent. Would there be a fundamental difference in what happened here if the guy had been 27 instead of 17?

If society accepts that 15-year-olds frequently have consensual sex, it's awful hard to justify the imposition of draconian penalties (or even severe moral condemnation) on their partners based on the happenstance of the partner's age.
12.18.2006 6:01pm
NotALegalEagle:
...when the offense happens in 2006 or later.


I know it is off-topic, but why is this particular fact of any interest? If I was to do something that is legal today that offended my state legislature and they went and passed a law tomorrow I am protected from being prosecuted for my actions that occurred before the bill was signed into law. I'm not sure why the reverse should be treated differently.

As a hypothetical, if someone developed a vaccine for cocaine and all state legislatures and the federal government then passed legislation legalizing cocaine would we be releasing cocaine dealers? But not marijuana dealers?

Also I find the idea of prosecutorial discretion to be quite astonishing. Why again do public employees get to decide which laws they enforce and which they don't?

And to get completely off-topic, maybe off continent, as I understand it Ken Lay's family doesn't have to pay back the corresponding money that Jeff Skilling is likely going to repay. This is due to the fact that his death prevented him from completing his appeals. So, if I was to run into a bank, have a suitcase loaded up with money and dash out the front door to be promptly hit and killed by a bus, does my family get to keep the money?
12.18.2006 6:02pm
Houston Lawyer:
I don't know how any of you got through high school without being videotaped having oral sex with a 15-year-old after having banged the drunk 17-year-old also on tape.

I would like to express some confidence that statutory rape laws are correctly applied, but I can't do that. The term jail bait is not new.
12.18.2006 6:03pm
SDN:
This is why every juror should be aware of jury nullification.
12.18.2006 6:21pm
chrismn (mail):
Except for possibly the length of the sentence, what is so wrong with this? Five guys getting a 15 year old girl to bl** them and videotaping it? This is criminally abusive behavior and I see no reason not to have the state outlaw it.
12.18.2006 6:36pm
Eugene Volokh (www):
ChrisMN: My complaint is entirely about the length of the sentence. If the law treated this as a misdemeanor -- or even as a low-grade felony because of the videotaping -- that would make perfect sense to me. But the length of the sentence strikes me as troubling, especially considering that having genital sex with the girl would have just been a misdemeanor, and that having sex with the girl after 2006 would have just been a misdemeanor, too.
12.18.2006 6:40pm
Ryan Waxx (mail):
Woodstock:

Biologically, you are quite possibly correct about humans being able to comprehend sex and distinguish between rape and non-rape earlier than society seems to think they can.

But socially, you miss the mark. Pre-18, kids have little responsibility for their own actions, because they are wards of the state and their parents, not having completed their education and not having the means to raise a child should one be concieved.

That is the true reason for the laws... to prevent our schools from becoming places for adults to go get a quickie. Loosening the age of consent would necessarily mean lowering the age at which kids graduate from high school. That's unlikely.
12.18.2006 7:04pm
UVAgirl:
By itself, ten years for the act with the 15 year old is way too much, esp. if it is now a misdemeanor act. That said, with all of the activity alleged to have occurred at the party, I can see why the prosecutor went for it. And frankly, that's nothing new. To a certain extent, we want our prosecutors to try to get a plea bargain - it makes the judicial system more efficient. And the way to drive a plea is to threaten something much worse. When the defendant won't budge, the only option is for the prosecutor to call his bluff. It can lead to horrible results, but that's prosecutorial discretion.

I suspect this case had everything to do with the fact that there were multiple girls and boys at a party with underage drinking, multiple sex partners and videotaping. Were this the 15-year old and Wilson in the backseat of a car, I bet this would be an entirely different story. But the sex with the intoxicated 17-year old ("seen earlier on the bathroom floor"?!) and the fact that the 15 year old engages in sex acts with multiple boys in one night is likely way too much for a jury to take. I'd love to know what's the real story between the description of the videotape (it sure sounds bad w/r/t the 17 year old) and the quick acquittal.

I would say that she was old enough to consent to this act at the age of 15, but her very actions would seem to suggest otherwise. Fooling around with one guy? Sure, she's a teenager. Multiple guys in succession? That isn't her biological urges talking, that's her low self-esteem.

So, the 10 years seems harsh, but I think the Wilson supporters are being disingenuous painting this boy as an angel. Honor roll and good at sports? Fine, but it doesn't make him innocent and certainly doesn't excuse criminal conduct.
12.18.2006 7:08pm
NickM (mail) (www):
Would you be so outraged if he had received a 10-year federal sentence for making and distributing child pornography?

Nick
12.18.2006 7:13pm
wm13:
The sentence doesn't seem out of line for an episode involving a group of boys videotaping themselves having oral sex with a 15-year-old girl. It wasn't, despite what some comments might imply, two dreamy teenage lovers. Doesn't it seem plausible that if the boys had engaged in a videotaped vaginal gang bang of a 15-year-old, or an oral sex episode after July 1, 2006, the prosecutor would have found some other or further criminal statutes to charge them under? Instead, he gave 5 year sentences to those who took plea bargains, and 10 years to the one who held out. And as for reversing the genders, I think one will search long and hard for an episode involving a group of teenage girls videotaping a group sex episode with a younger boy. That's just silly.
12.18.2006 7:14pm
David Maquera (mail) (www):
Well, if the 17-year old defendant enters the adult prison population upon the age of majority, he's certainly going to be experiencing oral sexual activities a lot more frequently.
12.18.2006 7:28pm
James Ellis (mail):
It seems like the complaint here is not about the absolute length of the sentence, but about the relative length, together with bad timing. I agree that this is all unfortunate. But how can we possibly expect legislators to draw the lines in the right places all the way across the spectrum?

Isn't this the same as complaining about getting a speeding ticket on 2nd Avenue at 6pm (and, say, having your car subject to forfeiture), when the speed limit is a lot higher on 1st Avenue, there are no speed traps on 3rd Avenue after 4pm, and the cop on Broadway just lets everybody off with a warning?

Academically and logically, it may be interesting to speculate about whether it would have been better to have taken Broadway or 3rd, or to have planned the trip before 4pm, but the bottom is that there is a law against the type of joyriding that this kid engaged in.

If it's ten years, it's ten years.

Here's a question for the group: if you are in favor of a pardon for this one individual, does that mean you would favor pardons for all of the co-defendants that pled guilty?
12.18.2006 7:30pm
PatHMV (mail) (www):
wm13... my sister went to a nice, all-girls Catholic school. I can assure you, based on things she's told me, that teenage girls can be every bit as bold and sexually aggressive as teenage boys.

The jury found, unlike you, that the sex with the 17 year old was not illegal, and that there was nothing non-consensual about the sex between the 15 year old and Wilson, the 17-year-old defendant. Had the girl been 2 years older, or Wilson 2 years younger, the act would have been perfectly legal.

Certainly this type of behavior is inappropriate and unseemly, and wrong. But that doesn't mean it should be criminal, or a felony. There's a lot we don't know based on these articles about what happened. Had these girls done anything like this before? Did they bring the video camera? Had they had sexual relations with this group of boys before? Was there any sex before the girls became really drunk, suggesting that they fully consented to the activity and just got drunker along the way?

Now, if you'd like to propose a law forbidding even consensual orgies and gang bangs, we can have a good discussion about that. But right now, at least, that's not the law.
12.18.2006 7:36pm
Kevin Hayden (mail) (www):
I guess I should have read the details before commenting. I wasn't aware of the multiple partners. I was thinking 'if both took part and were comfortable enough to videotape it, where's the harm?'

Now that others have 'splained the details more thoroughly, my position's closer to UVAgirl. However, despite the fact that ignorance of the law is no excuse, I'd guess none of the guys - if nothing was forcible - knew they were committing a crime. They might know that adults would disapprove, so they were breaching morality, but do they require 5 and 10 year sentences as a substitute for knowledge of the law?

And, yes, the 15 year old MIGHT have a self-esteem problem. But not many 17 year old boys are trained counselors.

From the available evidence, it would seem sentences of a few months might be in order. Then again, there may be more evidence still that's unknown to us here.

And I don't take the 'boys will be boys attitude'. Someone close to me was gangraped, and the guys claimed consent occurred. I'm well aware that our young must be protected from sexual predators. But with videotape, it should be clearer what might be predatory versus simply distasteful. Without predatory, I don't buy the length of the sentences (and again, the lege is at fault, principally, and possibly an overzealous prosecutor).
12.18.2006 8:06pm
happylee:
This version of story has different spin. It seems to suggest that the 10 year sentence was not for the voluntary oral sex with child but involuntary sex with teenager.
This case highlights the risk every defendant takes when negotiating a plea. You may well win on the major charge only to find yourself facing some ridiculous sentence for some lesser charge.
I fear for the innocent Duke kids who are facing false charges for rape. They may well be acquited for the crime they didn't commit, but a jury may convict them for some minor charge. Very sad.
12.18.2006 8:18pm
Mike Buckland (mail):

Certainly. That's why many of the Southern states required judges, lawyers, legislators, and in some cases, militia officers, to swear an oath that they had not participated in a duel after some particular date in the past. My book Concealed Weapon Laws of the Early Republic (Praeger, 1994) has more details.


Interestingly, I had never heard of the "I have never fought a duel" oaths until last week. A friend of mine was appointed to fill a vacancy on a local school board here in Kentucky. That clause was in the official oath, which had the participants and spectators trying to hold their snickers until the "I so swear" line.
12.18.2006 8:30pm
tsotha:
Nick,

Depends on the age of the child. Six years old? No. Fifteen? Yes.
12.18.2006 8:30pm
plunge (mail):
No, it doesn't seem plausible. What they did was a misdemeanor under current law, and would have been it was unprotected vaginal sex. Let's not mince words: vaginal sex is much much worse than oral sex. Objectively.
12.18.2006 8:31pm
Andrew J. Lazarus (mail):
I lost my sympathy when it got to the "videotaping" part. Any release form from the girls? Or a little surprise down the road to discover they've been stroke material for the football team for the last N years.
12.18.2006 8:40pm
TDPerkins (mail):
But how can we possibly expect legislators to draw the lines in the right places all the way across the spectrum?


Which is why the possibility of an explicit appeal to jury nullification made by the defense at its discretion should be mandated in the organic law.

Yours, TDP, ml, msl, &pfpp
12.18.2006 8:59pm
byomtov (mail):
Hey folks. There's an elephant in the room, in case you didn't notice. Everyone who thinks an upper-middle class white kid would have gotten the same treatment raise your hand.

Now, maybe race was not a factor in the prosecutor's actions. I don't know. But isn't it at least a possibility?
12.18.2006 9:01pm
TDPerkins (mail):
byomtov, until you said differently, I'd assumed a white kid from at least the middle class had gotten that treatment.

Yours, TDP, ml, msl, &pfpp
12.18.2006 9:11pm
AK (mail):
TDPerkins:

Which is why the possibility of an explicit appeal to jury nullification made by the defense at its discretion should be mandated in the organic law.

I don't want to drag this conversation too far off-topic, but the conception of jury nullification as an unvarnished good needs to stop. Certainly I can conceive of times when a defendant might be technically in violation of a statute, but convicting him might be unjust. But for every example of "good" jury nullification, I can think of one bad example. I don't want the jury thinking that they should be taking anything other than the facts into account. If we start telling jurors that they can bend the law to their liking, I don't know if we can get the toothpaste back in the tube.

For example, let's say we have a rape case that's close on the facts. The defendant, a black man, is accused of raping a white woman (there's no doubt that they had sex), and the white jury decides it's more likely than not that he raped her, but there's plenty of doubt. We then tell the jury that they can acquit for whatever reason they want, or for no reason at all, even if they think the defendant is guilty beyond a reasonable doubt. We're telling the jury that the law and the facts don't really matter; all that matters is what their gut tells them. A white jury that's told that the facts are secondary to their feelings might decide that the black guy needs to be punished for having sex with the white woman.

I want the jury to decide on facts. Nullification may be appropriate, but encouraging it is too dangerous for my liking.
12.18.2006 9:21pm
wm13:
PatHMV, you are suggesting that the Catholic girls at your sister's school commonly had group sex with younger boys and videotaped it? Because that is the type of sexual aggression we are discussing, not calling someone for a date.
12.18.2006 9:23pm
Floyd (mail):
I can't help but wonder how a 15-year-old girl supposedly incapable of comprehending her actions finds herself in the situation of being on the GIVING end of "oral sodomy". Hardly seems like "virgin encounter" material. 'Tis a far different age than that which I grew up in...
12.18.2006 9:36pm
PatHMV (mail) (www):
wm13, I'm suggesting that girls are often active, willing participants in group sexual activity of one sort or another, and that they truly don't consider oral sex to be "sex" of the sort that they're not supposed to have. And they willingly get drunk, and intend to engage in sexual activity while drunk. And some of them can be extremely bullying. Your belief about the innocence and sexual mildness of girls is out of date, I fear.
12.18.2006 9:45pm
NeoConTheoConRightReactionaryZionist (mail):
I have it on good (presidential) authority that oral sex doesn't count as sex at all.
12.18.2006 10:03pm
Mark Field (mail):

...when the offense happens in 2006 or later.


I know it is off-topic, but why is this particular fact of any interest? If I was to do something that is legal today that offended my state legislature and they went and passed a law tomorrow I am protected from being prosecuted for my actions that occurred before the bill was signed into law. I'm not sure why the reverse should be treated differently.


Because it's evidence that society no longer considers the offense so serious. Once society makes that decision, it's hard to justify penalizing someone under the old statute even if the new one hasn't taken effect yet. That's a different policy involved than the one which prevents ex post facto laws.
12.18.2006 10:10pm
Eugene Volokh (www):
byomtov: I thought that just a few states over, some upper-middle-class white kids were indeed being prosecuted for an alleged sex crime under some rather dubious circumstances (circumstances that might not have involved any crime at all on their part). Obviously, the two cases aren't quite on point (it's rare to have two cases that are precisely on point and both in the news) -- but at least they're both real, and they're not that from each other. Do you have any better comparators that you're relying on, or is it just a general principles assertion?
12.18.2006 10:12pm
Mark Field (mail):

I have it on good (presidential) authority that oral sex doesn't count as sex at all.


I thought that was bullshit too, but ask a teenager -- a good many will tell you exactly that.
12.18.2006 10:14pm
ReaderY:
It would not necessarily be unreasonable to interpret a state cruel-and-unusual punishment statute as applying to existing sentences in a situation where both (a) a legislature has radically reduced the classification and sentence of a type of crime (and the difference is really extreme), and (b) giving very long sentences was uncommon even under the former regime. Using the legislature's current view as a benchmark for "cruel" supplies (from the point of view of a state Supreme Court) an objective standard which enables a court to act without imposing judges' own personal views of appropriate punishment, and likewise there is an objective standard for "unusual."

But the Georgia Supreme Court elected to interpret the Georgia Constitution as not taking this approach.
12.18.2006 10:19pm
ReaderY:
Sorry, cruel-and-unusual punishment state constitutional provision
12.18.2006 10:19pm
legitprop12:
The prosecutor in this case should be ashamed of himself, and those who are writing this travesty off as acceptable because the defendant rejected a plea need to think again. The plea offered to the defendant was based on his pleading guilty to the rape charge, and he was unwilling to do that because he believed the sex was consensual. The jury apparently agreed with him, acquitting him on the rape charge in less than an hour. The defendants who pled guilty each got a 5-year sentence for the rape, because the rape statute allows flexibility in sentencing, unlike the ridiculous 10-year mandatory minimum for consensual sodomy.

If the defendant had been convicted of rape, I would have had no problem with him getting a 10 year (or more) sentence, even though those who pled guilty only got five. That is, indeed, what plea bargaining is all about. However, that is not what happened. What happened instead was that the prosecutor, unable to convict on the rape charge, tossed in a consensual sodomy charge, knowing full well that conviction on that charge would result in a 10 year mandatory minimum sentence. That's what makes his protests that the defendant forced his hand disingenuous - No one forced him to bring the sodomy charge, and he could have simply charged the defendant with rape of the 17-year old, and made his case to the jury. Of course, he probably didn't do this because he knew the rape charge was week, a fear borne out when the jury acquitted the defendant in less than one hour.

The Georgia legislature is also to be blamed for creating a mandatory minimum sentence of 10 years for consensual oral sex, particularly when vaginal intercourse involving the same parties would be a misdeameanor, notwithstanding the equal risk of disease and greater risk of pregnancy. If the Georgia AG has any decency, he or she will basically roll over and concede the validity of the defense's equal protection argument during the habeas proceedings, so as to ensure that this poor kid does not spend the next 8 years in prison.

A question - Does anyone know how soon the Georgia parole commission can act on this case? Can they recommend a pardon or parole while an appeal or a habeas petition is still pending?
12.18.2006 11:18pm
Clayton E. Cramer (mail) (www):

Darcy, are you trying to sound like Scrappleface?
Now, I think she's trying to sound like a responsible adult. She is more successful at it than a number of others here.

Yes, maybe the sentence was too long. But there's a reason that we have laws regulating sex with minors quite differently from sex with adults--it is because, with rare exceptions, they lack the emotional maturity to make good decisions about sex, abortion, employment, alcohol, driving, firearms, and about eight million other things.
12.18.2006 11:22pm
jim sweeney (mail) (www):
How about gender discrimination? Reverse the sexes and what result? We all know the answer to that one. Females are never prosecuted in this context.
12.19.2006 12:22am
tsotha:
Clayton,

Would that be all minors, say, including 17 year old boys? How is it I keep hearing in the media "girls mature so much faster than boys", but somehow the two year age difference is worth ten years in jail?

I was always under the impression stat rape laws were aimed at middle aged perverts who bully young girls into bed. I would never support a law that allows for this kind of miscarriage of justice. People convicted of forcible rape have gotten less time than this.

Also, part of the impetus behind stat rape laws is the idea the older man is taking the young girl's innocence (not the legal kind, the other kind). Does anybody believe a girl who was willing to engage in this kind of activity has much left in the way of innocence?

Also, there are neighborhoods where the average age a girl loses her virginity is fourteen. How many people should we lock up to satisfy our puritan urges? This boy will get plenty of familiarity with sodomy in the pen, and when he gets out he's virtually doomed to a life of crime since nobody will hire him. So what, exactly, is the benefit to society here?
12.19.2006 12:25am
UVAgirl:

What happened instead was that the prosecutor, unable to convict on the rape charge, tossed in a consensual sodomy charge, knowing full well that conviction on that charge would result in a 10 year mandatory minimum sentence. That's what makes his protests that the defendant forced his hand disingenuous - No one forced him to bring the sodomy charge, and he could have simply charged the defendant with rape of the 17-year old, and made his case to the jury. Of course, he probably didn't do this because he knew the rape charge was week, a fear borne out when the jury acquitted the defendant in less than one hour.


I hear your argument, legitprop12, but I still disagree. I don't think this was necessarily the act of a prosecutor who thought he had a weak rape case - it's common to have multiple charges. In the second posted article, I imagine a scenario where a 17 year old girl claims to have been raped by multiple boys when she was too intoxicated to consent, and there's an INCREDIBLY shocking videotape found while investigating the claim - I'd imagine he thought it was a huge, smoking gun. Not only do the police and the prosecutor see a 17-year old in a highly inebriated state (I keep coming back to "seen earlier on the bathroom floor") having intercourse with multiple boys (which I am sure the prosecutor thought he could get a rape conviction for - based on the "too inebriated to consent" type of rape), they also see an underage girl performing oral sex on the same boys one after the other. I'm sure they were horribly disturbed by this. So, they have to attach some charges to what they see in this sordid video, and the charge related to the oral sex was oral sodomy. I think in hindsight and reduced to a snippet (10 years for consensual oral sex) it seems like a truly manipulative choice by the prosecutor, but imagine when the videotape just comes out. Would the public accept the prosecutor bringing only one charge when the acts constituted multiple crimes (and, arguably, two victims)? No - they would want the prosecutor to pursue the other crimes for which there was evidence. And LIKE IT OR NOT, what those boys did met the definition of child molestation by oral sodomy as the law stood in GA at the time. So he brought those charges, too. Nothing in the ABC or Atlanta Magazine articles posted suggests that he brought the charges at separate times.

Besides, who's to say that there isn't some jury manipulation going on here? The same jury decided on the two charges at the same time. Yes, one of the jurors said that it didn't look like rape to them (again, the bathroom floor thing and pulled off the bed), but there might have been some thinking amongst the jury that it looked like some bad stuff happened, so instead of convicting him of rape, they'd just convict him for the other charge.

It's a bad situation all around, and again, 10 years may be too long, but that was Georgia law. I'm not pinning this on the prosecutor.
12.19.2006 12:28am
Darcy Lane (mail):
Its the law. Ignorance of the law is no excuse. Not agreeing with the law is no excuse. Those boys deserve what they get. They are dispicable, hateful human beings. I applaud this sentence 100%. The fact that is was videotaped just shows the souless nature of these animals and their regard for women.

Bravo to the prosecutor in this case.
12.19.2006 12:56am
Hans Gruber (www):
"In any case, you can't have read the post too closely. The "guy" was boy of 17, and his imputed "victim" a girl of 15."

The tape shows the defendant having sex with TWO girls, one that is 17 who is intoxicated and one that is 15 who is not. He was acquitted on the rape charge of the 17 year old, but was found guilty on the other charge.

It seems like what happened is that the prosecutor, believing he was guilty of the rape of the 17 year old, decided to prosecute him for both crimes, making a plea more likely.
12.19.2006 1:06am
Hans Gruber (www):
"That's what makes his protests that the defendant forced his hand disingenuous - No one forced him to bring the sodomy charge, and he could have simply charged the defendant with rape of the 17-year old, and made his case to the jury."

Assuming the prosecutor firmly believed he raped the woman, and assuming you think this sort of rape (inability to consent) is something which should be punished, is the result particularly unjust? I'm not sure that is.

Prosecutors use the law to their advantage--even bad laws--all the time. Using bad laws to put bad people behind bars, is that a bad result? I'm not sure, maybe it is. Without knowing more about this case, I cannot say whether the prosecutor's actions are particularly condemnable or not, but they do not seem to be unusual (maximizing the danger a defendant faces, making a plea more likley).
12.19.2006 1:19am
Clarence (mail):
I wish the ones who complain about the video taping would remember two things:

A. The defendant in this case wasn't charged with videotaping anyone

B. Given that "rape" is a function of consent, and consent is often "he said, she said" it's only prudent to record ones sexual encounters. What was on that tape convinced a jury that this defendant was not guilty of rape. Had he been unjustly convicted of rape, we never would have heard of this case at all.
12.19.2006 1:37am
Bob Smith (mail):

I wonder what the outcome of the case would have been if the genders had been reversed.

Does one really have to wonder? We all know there wouldn't have been any charges in that case, if there were charges she almost certainly would have been acquitted, and if convicted she probably wouldn't have served any jail time. Even if the ages were reversed (17 girl 15 boy) I'm certain that the prosecutor would have "used his discretion" and not brought any charges.

We (society) don't really believe that girls mature faster than boys, because if we did then we'd have to make girls responsible for sex too. Girls are pretty much immune to being charged for statutory (as opposed to forcible) sex crimes. The "justice" many here want in the instant case somehow magically always seems to be applied in the girl's favor when a prosecutor mulls over charging a girl for statutory rape.
12.19.2006 2:10am
Public_Defender (mail):
Criminal laws (especially sex offense laws) are frequently inconsistent because they are too often driven by single cases. A legislator hears about a case on the local "news," and writes a law just to cover those facts. they don't think about how it could affect others.

The penalties for sex offenses have ratcheted so high that they are sometimes higher than murder. The laws give sex offenders truly perverse incentives.

Every ten or twenty years, legislators need to look at their criminal code as a whole to put it back into some sort of reasonable order. Legislators also need to learn to resist the itch to amend a statute every time they hear about a case on the local "news."

Consensual sex between kids one or two years apart should be considered a family problem, not a criminal one. The professor is right, even if this must be a crime, on the scale of sex offenses, it is a very minor one.

I think the chances of a pardon are slim. My guess is that the prosecutor will argue that he deserved what he got because he "really did rape" the 17 year old, and because of the "child pornography." And the Georgia Board of Pardons will be afraid to release him because any crime that he might commit will be blamed on him. Does anyone get clemency in Georgia?
12.19.2006 4:21am
Joseph Hovsep (mail):
The race issue: white prosecutor, black defendant, local history.
12.19.2006 4:21am
finec:

Joseph:

Thanks for the great link. We no longer believe that all-white juries can provide justice for black defendants. If we are to ask prosecutors to take on significant discretion (edging into the jury's role), should we worry about the prosecutor's race?

Would a black prosecutor be as inclined to view 10 years of Genarlow's life as expendable? Would a prosecutor without children be less instinctively protective? The plural nature of the jury means that these viewpoints can be represented. There is no such mechanism in the prosecutor's office -- the decision was made by one (white) man, David McCabe. (Also note that in this case the jury was unaware of the severe sentencing implications of their decision, making the possibility of nullification essentially irrelevant and effectively placing discretion entirely in the hands of the prosecutor.)
12.19.2006 5:45am
Hans Gruber (www):
I have always wondered something. Does anybody know of a case where two people, both severely intoxicated, had sex, and then one of them was convicted of rape? Are they both guilty, did they in effect rape one another?

I'd imagine that intoxication isn't generally a defense to a crime (is it?), except insofar as it may in the case of murder support a lack of premediation. Do statutes generally give guidance that the difference in sobriety should be taken into account?
12.19.2006 6:39am
Miggs:
Darcy Lane = Juanita/Jane on H&R
12.19.2006 9:31am
Eugene Volokh (www):
Joseph Hovsep: But the girls were black, too. Hence the prosecutor's fairly plausible response: "Had he not pursued charges against the boys, his critics could have just as easily chastised him for failing to protect the rights of the two black females. 'I'm standing up for African-American victims in this case, as I would for any white victim,' says McDade, an alum of Douglas County High, where he played baseball. 'Calling me a racist denigrates the people who are victims in this case.'" I think the prosecutor likely made the wrong call here; but it's hard to see why his race -- as opposed to his views about strict enforcement of the law, about underage sex, and the like -- would lead him to side with the black girls instead of the black boy.
12.19.2006 10:20am
Clayton E. Cramer (mail) (www):

Clayton,

Would that be all minors, say, including 17 year old boys? How is it I keep hearing in the media "girls mature so much faster than boys", but somehow the two year age difference is worth ten years in jail?
I'm not sure it is worth ten years in jail, but the law has to draw a line somewhere. The line is arbitrary. Some states make the age of consent at 18, some at 17, a few at 16. It's arbitrary, but so is red for stop and green for go.

Girls may indeed mature faster than boys, but the left would have a cow if the law made the age of consent different for different sexes.

I was always under the impression stat rape laws were aimed at middle aged perverts who bully young girls into bed.
Many states have a provision that allows a three or four year age difference to either make it legal, or reduce the severity of the crime--usuallly with some minimum age for the younger party. I can understand the reasoning behind this, but the fact is that minors show remarkable inabilities to engage in sensible decisions about a whole host of behaviors. (Some adults as well, but for a variety of reasons, we draw a line at an arbitrary age, recognizing that there will a few outliers on either side of the line.)

I would never support a law that allows for this kind of miscarriage of justice. People convicted of forcible rape have gotten less time than this.
I'm not going to argue that ten years is a sentence that I would have handed down. I would probably have given the 17 year old 30 days in juvenile hall, and several years of probation conditional on staying away from video cameras and kids under 18. But I am going to presume that the legislature is competent to make laws.

Also, part of the impetus behind stat rape laws is the idea the older man is taking the young girl's innocence (not the legal kind, the other kind). Does anybody believe a girl who was willing to engage in this kind of activity has much left in the way of innocence?
I am inclined to think that this is a girl that has been sexualized far too young by living in a depraved society that sexualizes everything too young. (Yes, the United States.) And it isn't "innocence" but the fact that she is not responsible for her actions; her parents are stuck with that.

Also, there are neighborhoods where the average age a girl loses her virginity is fourteen.
Yes, I know. I raised a family in one of those moral cesspools. Liberals think it is so cool; what isn't so cool is the enormous damage that gets done to kids who are being encouraged by a society that says, "Hey, whatever," to 12 year olds having sex.
How many people should we lock up to satisfy our puritan urges?
However many it takes to get the message across that 15 is too young.
This boy will get plenty of familiarity with sodomy in the pen, and when he gets out he's virtually doomed to a life of crime since nobody will hire him. So what, exactly, is the benefit to society here?
Like I said, this isn't the punishment that I would have given. I would say from his behavior, not only with the 15 year old, but with the apparently passed out 17 year old, this guy is already on the road to a life of crime.
12.19.2006 10:59am
Clayton E. Cramer (mail) (www):

We (society) don't really believe that girls mature faster than boys, because if we did then we'd have to make girls responsible for sex too. Girls are pretty much immune to being charged for statutory (as opposed to forcible) sex crimes.
Not true. I've lost count of the number of statutory rape charges that I've seen filed against adult females for having sex with minor boys.
12.19.2006 11:03am
Grover Gardner (mail):
"I think the prosecutor likely made the wrong call here; but it's hard to see why his race -- as opposed to his views about strict enforcement of the law, about underage sex, and the like -- would lead him to side with the black girls instead of the black boy."

I can see it. Not that we can say for sure, but I can see it. There's a huge difference in attitudes toward young black women and young black male athletes. Think about it. A touch of opportunism would not be hard to detect here.

Reading the article in Atlanta Magazine, what disturbs me is that the young man with NO record whatsoever received the harshest penalty, and though IANAL I would have to side with those who see some prosecutorial manipulation here.

Absent evidence of forced rape, which the jury rejected out of hand, it seems to me that ten years in jail for accepting oral favors from a willing classmate is unduly harsh. Perhaps I've read too many coming-of-age novels, but I believe that this is not an uncommon experience. It might be interesting to poll the respondents here about their teenage sexual experiences, with a view toward determining how many felonies were committed.
12.19.2006 11:08am
Grover Gardner (mail):
"I've lost count of the number of statutory rape charges that I've seen filed against adult females for having sex with minor boys."

I don't think the commenter was referring to adults.
12.19.2006 11:11am
uh clem (mail):
Houston Lawyer:
I don't know how any of you got through high school without being videotaped having oral sex with a 15-year-old after having banged the drunk 17-year-old also on tape.


Nobody had easy access to videotaping equipment back then. And, boy, am I glad for that.
12.19.2006 11:12am
byomtov (mail):
Eugene,

My initial comment was expression partly of surprise that no one had mentioned race and and partly of my belief that it was certainly a possible explanation of the prosecutor's action. Let's see. White prosecutor, black offender, sex crime, Georgia. Surely there's some basis for suspicion.

As to the Duke case, I fail to see the relevance, except that it too seems to involve an irresponsible prosecutor. That Nifong is, at least, not driven by anti-black racism, tells us nothing about McDade.

That was before I saw the article linked to by Joseph Hovsep, which I think offers some support for the notion that race played a role here. That the victim (not victims) was also black, is not convincing to me. There seems to be no doubt that her involvement was consensual, and the article at least does not suggest that there were claims she had suffered grievous harm.
12.19.2006 11:21am
John M. Perkins (mail):
12.19.2006 11:26am
biz (www):
This is outrageous. I would understand if it was an substantially older person with a younger person, and even that would be too much, but this is ridiculous. As if our prison system isn't saturated already. And they're both underage.
12.19.2006 11:31am
John M. Perkins (mail):
It seems that O.C.G.A. s. 16-6-4 was changed, effective 1 July, specifically to address the Genarlow Wilson conviction.
12.19.2006 11:44am
JunkYardLawDog (mail):
Darcy,

Your comments don't seem to impute *any* responsibility on the girls for their own conduct. They weren't forced to drink alcohol, they weren't forced to be at that party, and a jury said the 17 year old wasn't forced to have sex, while everyone agreed the 15 year old willingly played the part of the local slut. Don't you think these girls have any responsibility for their own actions in this matter. They knew or should have known they were being videotaped, etc. I mean you seem to apply a standard of behavior and conduct one would expect and demand of a sober 25 year old male to these drunk 17 year old boys, but fail to apply the same standard of a 25 year old female to the choices and decisions and actions of the 17 and 15 year old girls.

You describe the boys conduct as despicable (and maybe it was maybe it wasn't), what adjectives do you apply to the girls conduct and choices in this matter? I'd like to hear how you describe the girl's culpability in this matter.

Says the "Dog"
12.19.2006 11:46am
George Myers (mail) (www):
Perhaps this has been the result of the "cult of anonymous personality" that the young and others are confronted with due to the "information age" i.e., the Internet (which as I understand it is a myth, hardly anonymous, in criminal investigation, perhaps even more so since "carnivore" and the new Presidential pardon of secret police tactics) and the law should consider what perhaps should be only a civil case, i.e, whose parental guardians were lapse in their evaluation, teaching and judgement that arguably created this situation, i.e., (for the third i.e. strike) what does it say about "responsibility" when underage or "coming to age" individuals act like some adults portrayed in "entertainment"? Where is the "civil responsibility" in this Damocles judgement? In a "criminal" child?
12.19.2006 11:58am
JunkYardLawDog (mail):
This case is very similar to another case out of Rome, Georgia. In the Rome, Georgia case an 18 year old black football player, the adopted son of white parents, honor student, etc. had sex (oral I believe but not positive) with a 15 year 10 month old white female. Later, (perhaps after daddy learned of the event) the white female claimed she was raped. The boy was charged with rape and the lesser offense of child molestation (just like in the current case being commented upon). The jury found the boy innocent of rape (i.e. found that he sex was consenual), but like in this case found him guilty of the child molestation charge. Just as in this case the boy got 10 year mandatory sentence. The public, local community for the most party, Oprah, and the entire state of Georgia for the most party were all outraged. A white lawyer working pro bono took the case up to the mostly white Georgia Supreme Court, which carved out a special rule of some kind out of thin air more or less that overturned the conviction or caused the boy's release from prison (sorry don't remember the details).

In this case, very similar circumstances, the Georgia Supremes give no relief. Why? The appeal in this case seems to have been based on different grounds than in the prior case. The prior case was black on white victim and the court wanted to bend over backwards to accommodate those (some commenting here) who think the case must be race based, as opposed to the current case which is black on black and needs no such accommodation. Or is it the fact that in this case the 15 year old slut passing out bl*w jobs with a group discount card was video taped?

I think the fact that the 15 year old consented to multiple acts of indiscretion for video tape replay seems to be the thing that makes the current case different. Should it be different?

Says the "Dog"
12.19.2006 12:05pm
hey (mail):
This may be a news flash to Clayton and others, but for the vast, vast, vast majority of the sexual encounters of everyone I know, oral sodomy preceded sexual intercourse. This is especially true in the first several encounters between two people. Oral sodomy == foreplay to most everyone under 30, at least.

Based on the facts of actual people's behaviour, the law is simply idiotic. One must remember that no one was charged on porn production and posession charges, which while also inane given the ages are much less objectionable (you get less time for a single infraction than you do for a blowjob). There is a massive difference between men who are out of highschool preying on teenagers and people who are peers engaging in consensual behaviour.

I heartily encourage that these age difference rules be applied to adults. So that everyone in the State of Georgia who has ever engaged in sex with someone 2 years or more younger than them should be facing charges and a 10 year felony if they ever engaged in oral sodomy.

To Clayton specifically, I hope that you have the most rebellious children ever. You seem utterly unaware of how people truly behave and seem to have a pathological hatred of teenage males that is the equal of Andrea Dworkin.
12.19.2006 12:15pm
hey (mail):
Gover: unlike most of the people here, I had a wonderful, fun highschool experience and would thus qualify for several life sentences under a 3-strike law (which rightfully include "real" child molestation as initial and subsequent strikes). It sounds like the vast majority of the commenters don't get out now, and never got more excitement than looking at their D&D cards for the elf girl in the chainmail bikini.
12.19.2006 12:22pm
Bob Smith (mail):

Does anybody know of a case where two people, both severely intoxicated, had sex, and then one of them was convicted of rape?

I've seen several, but don't have cites in hand.

Are they both guilty, did they in effect rape one another?

You're kidding, right? As one would expect, the man is always the one charged and convicted in such cases.
12.19.2006 12:24pm
Bob Smith (mail):

the left would have a cow if the law made the age of consent different for different sexes.

Not if it lets girls avoid sex crime charges. It was not uncommon, and may still be so in some states, that the age of consent was higher for girls than boys. For example, 18 for girls and 15 for boys. This leads to perverse results, like charging a 15 year old boy with statutory rape for having sex with his 17 year old girlfriend.
12.19.2006 12:32pm
Bob Smith (mail):


We (society) don't really believe that girls mature faster than boys, because if we did then we'd have to make girls responsible for sex too. Girls are pretty much immune to being charged for statutory (as opposed to forcible) sex crimes.

Not true. I've lost count of the number of statutory rape charges that I've seen filed against adult females for having sex with minor boys

My use of the word "girl" was intentional. We are talking, in the instant case, about two minors having sex. Ever seen a minor girl charged with statutory rape?

As for adult women with minor boys, I think it incontrivertible that such cases are much less likely to result in charges when discovered, and that average sentences are much shorter, assuming jail time is even ordered, for female offenders.
12.19.2006 12:40pm
zak822 (mail):
Sir, it's been an interesting thread. Fascinating how little comment there was to your statement: "My complaint is entirely about the length of the sentence. ...the length of the sentence strikes me as troubling, especially considering that having genital sex with the girl would have just been a misdemeanor."
12.19.2006 12:48pm
TDPerkins (mail):
zak822,

My comment concerning the injustice of the length of the sentence is that the jury should, at the request of the defense, have been able to consider the question of whether the sentence fit the full circumstances of the facts--considering the application of the law--and if the prosecution were to insist on that criminal charge with that sentence, that the defense should be able to invite the jury to nullify the law.

Yours, TDP, ml, msl, &pfpp
12.19.2006 1:27pm
Russ (mail):
Darcy,

A great point was brought up earlier - if the boys are despicable, and the girl did what she did willingly, what does that make her? She willingly drank and willingly gave oral sex. No one held her down and forced themselves on her. Is she totally absolved of ANY responsibility.

I go back to how bitter you sound. What has happened in your past that has turned you so sour on men in general?
12.19.2006 1:29pm
sed:
I can't believe this injustice and would be ashamed to live in a country with this sort of legislation. When a 17yr old can't have consentual sex with a 15yr old then that is infringing on the 17yr olds human rights. A 17yr old boy is no more mature than a 15yr old girl in terms of sexuality, both are learning to understand their sexuality. Considering that girls mature sexually and probably mentally before boys I don't see how there is an injustice in consentual sex between 15yr girls and 17yr boys. A 10yr old sentence is outrageous injustice.
12.19.2006 1:36pm
Grover Gardner (mail):
Well, hey, my intent wasn't to portray my fellow commenters as sexless dweebs, but merely to make the point that you did about teen experiences. :-)
12.19.2006 1:48pm
dkelly:
On the highly likely assumption that one (or more) of the boys were too intoxicated to give consent, why were not both girls charged with rape?

Seriously, I know the answer. But the double standard of two drunks having sex being a crime for the guy is always ignored.
12.19.2006 1:55pm
Seamus (mail):

I have always wondered something. Does anybody know of a case where two people, both severely intoxicated, had sex, and then one of them was convicted of rape?



I don't know about criminal convictions, but I know that the analog is common in college disciplinary proceedings. If a male and a female student both get totally polluted and end up bumping uglies, and she has second thoughts about what she did once she sobers up, she can claim she was raped, on grounds that she was too drunk to give valid consent, and the disciplinary authorities will find the male guilty. The fact that he was just as drunk as she was (or maybe even drunker) is completely disregarded.
12.19.2006 2:00pm
NotALegalEagle:
I think it is very fair to say that a fifteen year old boy is about as emotionally and mentally mature as a fifteen year old girl. And both of them are less mature than a seventeen year old of either gender. It's true that women mature physically faster but some things in life have absolutely nothing to do with physiology. For example one's ability to make smart relationship decisions. Those come from experience and have nothing whatsoever to do with having reached sexual maturity.
12.19.2006 2:38pm
TDPerkins (mail):
Concerning a post by Darcy Lane, I wrote:

Darcy, are you trying to sound like Scrappleface?


To which Clayton E. Cramer responded:

Now, I think she's trying to sound like a responsible adult. She is more successful at it than a number of others here.

Yes, maybe the sentence was too long. But there's a reason that we have laws regulating sex with minors quite differently from sex with adults--it is because, with rare exceptions, they lack the emotional maturity to make good decisions about sex, abortion, employment, alcohol, driving, firearms, and about eight million other things.


And then Darcy posted:

Its the law. Ignorance of the law is no excuse. Not agreeing with the law is no excuse. Those boys deserve what they get. They are dispicable, hateful human beings. I applaud this sentence 100%. The fact that is was videotaped just shows the souless nature of these animals and their regard for women.

Bravo to the prosecutor in this case.


In light of my posted quote from the case to the effect that the behaviors were entirely consensual, does Mr. Cramer want to row back from his strong support for the opinions of Darcy?

Yours, TDP, ml, msl, &pfpp
12.19.2006 2:59pm
TDPerkins (mail):
Whoops. Couldn't post for several hours, and now my posts are out of chrono. order.

Hans Gruber wrote:

The tape shows the defendant having sex with TWO girls, one that is 17 who is intoxicated and one that is 15 who is not. He was acquitted on the rape charge of the 17 year old, but was found guilty on the other charge."


And he was grossly incorrect.

To quote from the decision:

"Wilson was convicted of aggravated child molestation based upon an act of oral sodomy performed on him by victim T.C., which was documented on videotape and seems to show that the victim's participation in the act was voluntary."


The defendant was never convicted of rape in either case.

The supposedly criminal act was one which was consensual. As a matter of the consideration of law, end of story, unless you have evidence to the contrary. There was no element of actual forcible rape/noncensensuality in the case of either plaintiff.

Yours, TDP, ml, msl, &pfpp
12.19.2006 3:02pm
TDPerkins (mail):
I'd like to beg the house's indulgence in posting three posts right after another. I was unable to post for several hours.

AK wrote:

I don't want to drag this conversation too far off-topic, but the conception of jury nullification as an unvarnished good needs to stop.


The conception that what we are doing now is better needs to stop.

Certainly I can conceive of times when a defendant might be technically in violation of a statute, but convicting him might be unjust.


Which is why...

"...the possibility of an explicit appeal to jury nullification made by the defense at its discretion should be mandated in the organic law."

But for every example of "good" jury nullification, I can think of one bad example.


And if 50/50 odds are what you are trying to imply, that also implies you are saying that it's okay for the half of the people who should be able to benefit from jury nullification should be jailed, even though it is unjust. If I recall--that it is better that 100 guilty go free than 1 be unjustly imprisoned--that is the proper tack to take, not at all what you are endorsing.

I don't want the jury thinking that they should be taking anything other than the facts into account.


I want the jury to always have in mind that its job is to judge the facts of the case, the law in and of itself, and the application of the law to the facts the prosecution is claiming merits a conviction.

Since that is the actual job of a jury.

If we start telling jurors that they can bend the law to their liking, I don't know if we can get the toothpaste back in the tube.


This was empty rhetoric.

For example, let's say we have a rape case that's close on the facts.


Then there should be an acquital or hung jury. The standard is "beyond a reasonable doubt" not "could be either way".

The defendant, a black man, is accused of raping a white woman (there's no doubt that they had sex), and the white jury decides it's more likely than not that he raped her, but there's plenty of doubt.


Then there should be an acquital. Recall please that jury nullification is a not guilty finding although guilt is not doubted.

We then tell the jury that they can acquit for whatever reason they want, or for no reason at all, even if they think the defendant is guilty beyond a reasonable doubt.


I don't think you get the concept here. There is a prosecutor, a judge, a defense attorney, and a jury. There is a defendant and the plaintiff. There are facts and testimony. There is no "we".

If with the facts themselves being ambiguous, a defense attorney were to make the argument to the jury that, yes, their client did rape the victim, but a conviction would be unjust because the laws against rape were unjust...I have no fear for the outcome of the trial.

For that matter I have no fear for another outcome but that the attorney would be disbarred.

Why do you think anything else is plausible in your hypothetical?

We're telling the jury that the law and the facts don't really matter; all that matters is what their gut tells them.


We aren't saying anything. The prosecutor who attempts to argue that their case isn't very strong, the defendant could be innocent or guilty, but they ought to listen to their prejudices and convict the black man...I have no fear that such a person would not long face civil rights charges and disbarment. Also, if you actually read what I wrote, you'll see I do not propose that the prosecution should be able to argue that the facts of the case are not the crux of the matter.

A white jury that's told that the facts are secondary to their feelings might decide that the black guy needs to be punished for having sex with the white woman.


And in the terribly unlikely event that a randomly selected jury did in fact do so and with the unanimity required to convict it would be a very terrible injustice. However, it would not be jury nullification for the jury to collude with judge and prosecution in a finding of guilty where guilt was ambiguous. By definition, and not an at all unfair definition, jury nullification is the jury producing a not guilty verdict, disagreeing with the prosecution and government, the facts of the case notwithstanding.

The injustice you worry about is not jury nullification.

I want the jury to decide on facts.


Then you discount the importance of the jury or juror in protecting liberty from unjust prosectution, and the inevitablity the legislature will by its inherent nature produce laws the body of the people will not confirm to be legitimate when acting in their full capacity as jurors.

Nullification may be appropriate, but encouraging it is too dangerous for my liking.


I do not propose it be encouraged, but that having recourse to it be affirmatively protected in law.

There is a very great difference.

Yours, TDP, ml, msl, &pfpp
12.19.2006 3:13pm
judyinnm (mail):
He's black. 'nough said.....
12.19.2006 3:44pm
Clayton E. Cramer (mail) (www):

This may be a news flash to Clayton and others, but for the vast, vast, vast majority of the sexual encounters of everyone I know, oral sodomy preceded sexual intercourse. This is especially true in the first several encounters between two people. Oral sodomy == foreplay to most everyone under 30, at least.
Huh? This isn't news to me, or anyone else.


To Clayton specifically, I hope that you have the most rebellious children ever. You seem utterly unaware of how people truly behave and seem to have a pathological hatred of teenage males that is the equal of Andrea Dworkin.
Huh? This isn't hatred. It's recognition that teenaged boys, often as not, are at the mercy of their hormones. (I have some memories of those times.) We have rules that are intended to protect minors from exploitation for that very reason. I take that you believe that there should be no laws prohibiting sex with minors? If a 17 year old guy can persuade a nine year old to have sex with him, you don't have a problem with that?
12.19.2006 4:53pm
bronxelf (mail) (www):
Several points, in no particular order.

1. It seems to me that the law is indeed flawed. I boggle at the fact that Georgia didn't fix the flaw after the last time this type of thing happened, and then I think about it longer and am not surprised.

2. We do not know what the videotape shows. We do know that the jury found it compelling enough to acquit the defendants of rape of the 17 year old within an hour. I don't know what it is, but there's a smoking gun on that tape. Unless and until we know what it is, we just have no clue here.

3. I agree with the notion that both the 15 and 17 year old were acting out of their own poor self esteem. This to me seems patently obvious. However, that last I checked, wasn't a crime. It's sad, but that's what it is. Do I think the boys in this case (all of them) were (putting it politely) jerks? You bet. Unlikeable? Yes. People deserving of being pulled right off their ahtletic and scholastic pedestals? Absolutely. However none of this abrogates the responsibility of the girls as well. Do I consider the boys blameless? Nope. Do I think that this is worthy of a 10 year prison sentence? Even bigger nope.

4. It's my understanding that the 15 year old was sober? Or reasonably so (I understand the 17 year old was not.) If this is so, I stand even more firmly in the camp of "no, this wasn't alcohol. It was just poor judgement." Get everyone some counseling and a battery of STD tests('cause, ick.), but I fail to see the value of jail time.

5. What bothers me most about the responses thus far is the notion by some of an absolute morality that really is removed from both what teenagers do/think/say/act and exists only within a cultural vaccuum. The notion of children as somehow innocent and non-sexualized is a recent cultural creation. One need not even go back 150 years to see that(even within the US.). Biologically speaking, 17 is "old" in terms of physically sexually mature. So, for that matter is 15. Remember that not that long ago, and indeed in many places in the world now, all of these "children" would be married or likewise partnered with children of their own. My point is that the moralizing going on in reference to their ages is a cultural creation of recent issue, not some kind of all-encompassing absolute. Does this make them psychologically mature enough to make good decisions? Nope, because culturally we don't teach teenagers to do that. However I disagree with those who would say it makes those poor decisions criminal except as a technicality of law. I completely understand "that's what the law says". I can read that as well as anyone else. But the notion of "well that's what the law says and it's absolute, etc." doesn't sit well with me. The point is "is this a good law? Is this a just law? Does this law really accomplish what it intends, in spirit as well as letter?" To all of these, I think the answer is no.
12.19.2006 4:53pm
Clayton E. Cramer (mail) (www):

In light of my posted quote from the case to the effect that the behaviors were entirely consensual, does Mr. Cramer want to row back from his strong support for the opinions of Darcy?
Why would I? From the descriptions that I am reading, this wasn't a Romeo and Juliet sort of thing--more like, "Oh boy, there are girls too drunk or too foolish to keep me from having sex with them! Lights, camera, action!"

My daughter describes her generation as the Porn Generation--a generation of guys who think that the primary function of females is sexual service, and a generation of girls who are fighting a conflict between what they know they are supposed to be (sluts) and what they instinctively know that they are supposed to be (first class citizens).
12.19.2006 4:57pm
TDPerkins (mail):
Clayton strawmanned:

I take that you believe that there should be no laws prohibiting sex with minors?


No one has said that or anything like it.

If a 17 year old guy can persuade a nine year old to have sex with him, you don't have a problem with that?


No one has said that or anything like it.

Darcy has said (in especially scathing and contemptual tones)--and you have agreed--that a 17 yo male having conensual sex with a 15 yo female is an act which reasonably justifies jailing the male for 10 years.

The ice you are on is thin, grasshopper.

Yours, TDP, ml, msl, &pfpp
12.19.2006 5:02pm
Clayton E. Cramer (mail) (www):

The notion of children as somehow innocent and non-sexualized is a recent cultural creation.
That's not the basis of statutory rape laws. The basis is a belief that children are easily taken advantage of by those who are older. Statutory rape laws were originally gender-specific (only applied to women). I suspect the reason was concern about pregnancy, and a belief (probably not entirely correct) that relatively few adult women were going to pursue teenaged males for sex, and that most the boys so pursued were not going to complain.

One need not even go back 150 years to see that(even within the US.). Biologically speaking, 17 is "old" in terms of physically sexually mature. So, for that matter is 15.
Not true, actually. Age of puberty has fallen quite substantially in the last century or so, probably because of improved health. I've seen one study of menarche (age of first period) done by Los Angeles city schools from the 1920s through the 1950s, and there was a drop from 16 to 13 during that time. In Puritan New England, marriage for women was typically 18 or 19; for men, typically early 20s.
12.19.2006 5:05pm
Clayton E. Cramer (mail) (www):

Darcy has said (in especially scathing and contemptual tones)--and you have agreed--that a 17 yo male having conensual sex with a 15 yo female is an act which reasonably justifies jailing the male for 10 years.
Darcy is discussing this particular case--where the 17 yo male's behavior is pretty contemptible.

You say that I am engaging in a strawman argument? Okay, then explain what the problem is here:

1. Is the sentence excessive?

2. Should it be lawful to have sex with a minor?

3. What exactly has you upset?
12.19.2006 5:08pm
bronxelf (mail) (www):
Sayeth Clayton:

I suspect the reason was concern about pregnancy


Agreed.

If we agree on this, that makes this case even more silly. There is no chance that the 15 year old can become pregnant based on the actions of all parties involved. Now what?

Again, it comes down to "What is the intent of this law, in spirit as well as in letter and does the letter of the law uphold the spirit (and with luck, go no farther). I think that in this case, the letter does not uphold the true spirit of the law, especially given the law in cases of vaginal intercourse. If that is a misdemeanor, (and does carry an obvious pregnancy risk) then how can this be "worse"?

Perhaps I was not being clear. What bothers me is a pervasive notion in some comments of some absolute morality that has nothing to do with the actual law. This notion is simply not true. Morality is relative to culture and to time. (also, comparing anything to Puritan New England is hardly representative of any kind of average. It's accurate, but it's kind of like a barrel full of ducks and a shotgun. :) )
12.19.2006 5:15pm
divadab (mail):
It seems to me that the problem is mandatory minimum semtences. Like "zero-tolerance" policies, they render the wisest judges into ciphers and automatons. (automata?)

Just another symptom of a once-civil society in very bad trouble. "I was just following orders..." has the same kind of sick irresponsibility as "my hands were tied by mandatory minimum sentencing". Are we free men or mere cogs in the corporatist machine?

Ten years for getting a blow job from another minor is so outrageous and sick that it's hard to imagine anyone believing it to be correct. But then again, this is Georgia, and this is the same country that fixated in such a juvenile way in Clinton's sexual behavior, to the laying of Impeachment articles. What a bunch of malicious idiots. What scum. What morons.
12.19.2006 5:24pm
hey (mail):
Clayton: this likely isn't what you would want your daughter doing, but to say that it is legitimately criminal is ridiculous. Freshman/Sophmore girls with Junior/Senior boys is standard (the reverse isn't exactly uncommon either) and to criminalise this is beyond idiotic. It is just as useful to criminalise water freezing at temperatures above -2C.

I was fairly sure that you were aware of the difference between legal, moral, and good idea as it applied to behaviour. I'm sorry that I was mistaken, and you are just an anencephalic prig.

As to the appropriate rules for this: 4 year rule for 14-18 year olds and a 2 year rule for under 14s. This prevents the exploitation of dramatically different power relationships while allowing for what WILL happen. I don't think that it is a GOOD idea for 12 year olds to be engaging in sexual conduct, but a certain subset of the population WILL and it is much better for their parents and other authority figures to be able to deal with this rather than sending children to jail and branding them as sex predators for the rest of their lives.

As evidenced by other horrible cases, there also needs to be an exception for developmentally delayed individuals who are in the same school/institutional environment but may be physically older. Again the issue comes down to the intent and moral capacity of the two parties. 17 year olds are not exploiting their girlfriends (or at least not in a way that can legally be discerned with any reasonable degree of certainty) just because they happen to be 15 instead of 16. It is the realm of their parents to actually parent rather than bringing in the justice system to do unspeakable things to avenge your fatherly honour.

Clayton your attitude and the behaviour of the prosecutor has much more in common with a Taliban view of sexuality than a realistic and responsible method of raising children. The parents need to take ownership of their mistakes, get their children to act with more dignity and integrity (guys and girls), and get the hell of Georgia. Ruining a boy's future because of fully consensual behaviour with a classmate is vicious and despicable.
12.19.2006 5:33pm
belgian (mail):
So do I get this correct? A 17 year old boy had sex with a 15 year old girl and the boy is sentensced for 10 years jail???

Wtf? How is that even possible? The age difference is only two years! They are both minors for gods sake, and 10 years? I just cannot believe the story, if this is really happening I hope the people who live their will strongly protest this insane outcome from something that shouldn't even be on trial.
12.19.2006 5:45pm
elChato (mail):
The case is an abomination, IF you accept that he is innocent of the nonconsensual sex allegations of which he was acquitted.

I don't know what the evidence was with regard to that. Perhaps if it's really weak, the executive after review can commute the guy's sentence.

Without information about what evidence supported the rape charge from that night, I am not willing to say that the authorities, including the DA, are racist/stupid, though that seems to be the knee-jerk reaction of so many here and elsewhere. Rape cases are notoriously difficult to win. If I were the DA, and had a sincere good-faith belief based on the evidence that he was guilty of the nonconsensual acts he was charged with-- and NO ONE has pointed to any facts showing such a belief was not reasonable-- I'd have no problem also charging a rapist with a second felony I could prove.
12.19.2006 6:47pm
Hans Gruber (www):
"The defendant was never convicted of rape in either case."

I never said he was convicted of rape; I said the tape showed him having sex with two different girls, one was obviously intoxicated ("she was seen earlier on the bathroom floor") and one that was not. That IS true. He was charged with the rape of the 17 year old and the "child molestation" of the 15 year old.

To disregard that initial context isn't fair to the prosecutor. I doubt this case would have ever seen the light of day had the 17 year old girl not pressed charges, and the tape did not exist. The second charge was clearly used to press him into plea bargaining, and this is something which a lot of prosecutors do (increase the total potential sentence to make a defendant more likely to take a much shorter plea; prosecutors also use the threat of the death penalty to pressure defendants to take a sentence of life in prison). Secondly, we are not talking about ONE case of rape by inability to consent, we are talking about a gang rape (5 or 6 other boys also had sex with the intoxicated girl).

So, step back into the prosecutor's shoes, who obviously thought the young man was guilty of gang raping a girl incapable of giving consent. Is it really that reprehensible that he sees this poorly crafted law, and uses it to exact what he seems is a fair plea for the crimes committed? Of course, it didn't work out that way, the young man, proclaiming his innocence, refused the plea, and a jury agreed and acquitted the young man on the more serious charge but found him guilty of the lesser (in a moral sense) charge.

If the jury's decision is the right decision, then the prosecutor's moral error was in his assessment of the young man's guilt on the rape charge, not in his decision to use a bad law to exact what he felt was a just plea to a serious crime. And, if this is the proper context to judge his actions, is it not possible that he is right and the jury is wrong?
12.19.2006 7:00pm
Hans Gruber (www):
"The case is an abomination, IF you accept that he is innocent of the nonconsensual sex allegations of which he was acquitted."

I agree. I think if there was an error made by the prosecutor, it was in his assessment of the defendant's guilt for the rape charge. Obviously the jury disagreed (or did they just see the first charge as punishment enough?), but that does not mean the prosecutor was wrong, or at least so obviously wrong to make his conduct reprehensible.
12.19.2006 7:06pm
RR Simmons (mail) (www):
This is state-sponsored abuse.
12.19.2006 7:13pm
Luka (mail):
To make things worse, I believe that the kids involved in the act were black, and the prosecutor white. I have seen a report on this case on PBS and am quite sure about the race of the people involved in that report.
I guess this explains why the prosecutor was so unwilling to make any concessions and why the legislation was changed in a way that would not be applied retroactively on this kid. There is only so much that you can expect from Georgia, I suppose... (small disclosure - I am not Black, I am Caucasian and ashamed for the obious racial bias and injustice in this case).
12.19.2006 8:45pm
TDPerkins (mail):
divadab wrote:

<blockquote>and this is the same country that fixated in such a juvenile way in Clinton's sexual behavior, to the laying of Impeachment articles. What a bunch of malicious idiots. What scum. What morons.</blockquote>

The people who are scum and morons are the people who thought it was out of bounds to seek to censure the President--nominally an adult--who violated a law he himself signed into law, and who then lied under oath in order to escape the potential politcal and legal consequences of that crime.

Of course, many of the same simpletons think W is a criminal liar--even though they can't name anything he said that's actually a lie.

Yours, TDP, ml, msl, &pfpp
12.19.2006 8:50pm
TDPerkins (mail):
testing blockquotes



testing again
12.19.2006 8:56pm
TDPerkins (mail):
Clayton again erects a strawman, or at least poses questions quite beside the point:

You say that I am engaging in a strawman argument? Okay, then explain what the problem is here:

1. Is the sentence excessive?


Grotesquely so.

2. Should it be lawful to have sex with a minor?


If, with respect to the minor in question, you are sufficiently a major, no, it should not be lawful. ;^)
I'm sorry, sir, but your question and train deserve no more seriousness than that.

For someone who is unambiguously an adult to have sex with a person unambiguously a minor should be a serious crime. What happened here should at most be a serious misdemeanor. That at the outside.

3. What exactly has you upset?


Figure it out, if you're able.

You have the parameters you need if mention of sodomy hasn't overloaded your synapses.

Yours, TDP, ml, msl, &pfpp
12.19.2006 9:32pm
TDPerkins (mail):
train deserve /= train of thought, TDP
12.19.2006 9:33pm
Targeted Traffic (mail) (www):
Next they will be convicting underage kids!

Fast Web Traffic
12.20.2006 12:31am
RHK:
It looks like even those that disagree with the mob here for the most part agree that 10 years is a bit harsh. I agree. I think it's more than harsh. It's completly useless. Somewhere up above I read a post that said we need to put as many of these kids in jail as necessary until they learn that 15 is too young. I for one believe that if there were only one 17 year old male left in this country he would still be trying to stick his 'you know what' into something.

I have a 15 yr old daughter myself and I cringe at thinking she could be doing something like this. I hope I raised her right and I hope she waits. But I'm stuck between a rock and a hard place on this. If I tell her how to be responsible about it, am I encouraging her? If I tell her to engage in abstenence or avoid the topic altogether, am I irresponsible or un realistic? I know that when she leaves the house she is influenced by peers more so than by me. I sometimes feel I can't compete with the bombardment she gets out in the real world.

I know in fact that this is true. A similar event happened to me. When I was 17 1/2, I got my 17 yr old girlfriend pregnant. Do the math and you'll see how old we were when the baby came. Me 18, her 17 and 9 months. I was charged with 'sexual intercourse with a child over the age of 16'. The fact that I was a minor at the time of impregnation made no difference. The fact that we were only 6 months apart in age made no difference. I was lucky in that it wasn't as sensationalized as it is today and the penalties were not as severe. I never had to register and I received 9 months probation.

I'll point out that I was raised by VERY involved parents and attended catholic school from grades 1-12. It didn't matter. I was too interested in what all teenage boys are interested in.

So, obviously, I want better for my children than what I went through. I don't openly talk about the details surrounding my oldest's birth but she does know basic math. She can figure it out.

So while I agree that even I was too young, that is me now. A 33 year old with a 15 year old child. At 17, you couldn't have talked me out of her bed with all the Bible School in the world.

We expect kids to be kids and we want them to stay that way. Young, innocent, a time in their life that we know is short so we help them to hold on to it. We discourage them from having sexual expiriences at such young ages. We find the adult movie or magazine in their room and we express our dissapointment. And we should!

Childhood is short and only an adult can fully understand that. We have to also remember our own youth, that sexual curiosity was part of it. We didn't wake up on the day of our 18th birthday and all of a sudden have this strange new obsession.

Trying to make examples of these kids by putting them in jail doesn't deter them from being what they are. Teenagers. Rebelious by nature. Remember how you were? Honestly, what would it have taken to convince you not to give in to those strong desires?

This case sounds like kids being kids. They knew it wasn't legal to drink, they did it anyways, they knew no one would ever approve of them consenting to anykind of sex. They did it anyways. They wern't video taping it to show it to their parents. They knew it was wrong. They didn't care about any of that. Not because they are criminals. Because they are teenagers.

You get that Mr. D/A? Your 'honor'? Or are you so out of touch with reality that you have forgotten your own youth. 'Let he who is without sin cast the first stone.' Would you be in jail right now if you had to judge your own youth? Hmmm...

Be a fricken man and teach these kids. Give them something to look up to. Don't put them in jail because you are uncomfortable being reminded of the way you used to be!
12.20.2006 1:58am
lj:
i'm with belgian. i read about this case and thought i must be having a nightmare, that there's no way something like this could happen in the US in 2006. Was the boy an angel? Probably not, but he is not the first, nor will he be the last honor roll student to smoke some marijuana and drink it up with his friends. What happened to the 17 year old is unfortunate, but has nothing to do (or shouldn't have anything to do) with the sentence received by this boy. The only person, it seems, who had the power to do anything about it was the prosecutor, and as others have said, shame on him.

The case of a 15 year old performing consensual oral sex on a 17 year old simply should not be prosecuted. I hate to sound petty, but I'm guessing this particular prosectuor didn't/doesn't get laid much.
12.20.2006 6:15am
elChato (mail):
To make things worse, I believe that the kids involved in the act were black, and the prosecutor white. I have seen a report on this case on PBS and am quite sure about the race of the people involved in that report.

Golly- well now that I know the RACE of the people involved I may have to change my whole opinion. That being the most important fact and all.
12.20.2006 9:09am
JK (mail):
Speaking as a teenager to all the people in this post who think this is at all just - what the fuck are you smoking?
The truth is that most girls go for older guys at that age. 15 - 17 is nothing. Some of my friends are 15 year olds in relationships with people who are 22. Thats right, seven years older than them. It's pretty easy to see why as well; older blokes have more cash, scooters and cars, have nicer bodies, are more sexually experienced and have more booze &drugs. Earliest time we start having sex is usually about 13, it's fairly rare that anyone starts younger than that.
And what that "Darcy" bird said about the 17 year old being far more responsable than the girl? Utter bollocks. I know people 2 years my junior who are smarter than me, taller than me, better developed than me, more mature than me, drink more than me and have more sex than me. The people who are that charming, fit and intelligent are the only people who will be having sex with the fit birds in there own year- the rest of the fitties will be fishing around for someone a year or two above (for a relationship, rather than a house party blowjob, which are fairly common, often same year and sometimes recorded on cameraphones).
My point is that what the 17 year old is going through is like something out of that dystopia novel thats name i fail to remember about the man who wakes up one day accused of a crime he didn't commit, and tries to unravell what the hell is going on untill he is executed at the end.
12.20.2006 9:54am
TDPerkins (mail):
Kj, as stupidly pigheaded as I think this sentence was (17 yo mal, willing 15 yo female), a 22 year old being caught with a 15 year old should get the 22 yo thrown under the jail.

Yours, TDP, ml, msl, &pfpp
12.20.2006 10:05am
Seamus (mail):

1. Is the sentence excessive?

2. Should it be lawful to have sex with a minor?

3. What exactly has you upset?



1. Yes.

2. Not in all cases.

3. Well, the excessive sentence, for starters.
12.20.2006 10:05am
TDPerkins (mail):
Kj /= JK Good thing a vacation's coming up, I'm losing the ability to type. Yours, TDP, ml, msl, &pfpp
12.20.2006 10:06am
divadab (mail):
td perkins wrote:

"Of course, many of the same simpletons think W is a criminal liar--even though they can't name anything he said that's actually a lie."

How about these:
-Saddam has WMD's
-Saddam is an imminent threat to the US
-I'm a uniter, not a divider
-Saddam is close to having nuclear weapons
-Saddam is allied with al qaida
-We're winning in Iraq
-the "Clear skies initiative", the "Healthy Forests Program", "Compassionate Conservatism", Mission Accomplished, "You're doing a great job Brownie", Don Rumsfeld will be the Sec Def for the rest of my regime (2 weeks later, fired).......I could go on for pages.

I suppose if you drank the corporatist neo-con koolaid, none of these are lies, and they all pale into insignificance beside lying about a blow job, which as we all know, is about as high a crime and misdemeanor as is possible to commit.

It's a good thing some of us are still able to see and think, and are not blinded by the fog of partisan ideological worldview. Like you, perkins. You're part of the problem. Iraq deserves you. Go, why don't you?
12.20.2006 11:10am
GuestGuest:
This is all beside the point, but it is quite possible to get through your teenage years without having sex. Maybe not easy, maybe not the majority, but it does happen. The implication that all kids are out there having sex and therefore it is okay is silly because (1) not everyone is doing it and (2) even if they were that wouldn't make it right.

Anyway, the reason we criminalize sex with minors is because kids are immature and easy to take advantage of. We recognize that even if kids want something, they are not mature enough to make rational decisions about it. It isn't right to take advantage of that. And if you do you should be punished. Because we can't do an intense psychological evaluation of the relative maturity of each party at the time of the sex act we have to draw lines using ages. Just as we do with capacity to contract or vote. It's somewhat arbitrary, but the best we can do. Sixteen seems like a good age of consent, with a two year (730 day, not 15th birthday and week from 18, mind you) age gap when the "perpetrator" is also a minor.

While ignorance of the law is no excuse, if we want these laws to have a deterrent effect it is a good idea to publicize them. Make it part of the government or sex-ed class.

And this isn't a waiver of culpability for the girl. If her parents don't discipline her, they are seriously delinquent in their duties.
12.20.2006 12:14pm
Clarence (mail):
JK, I think comes from GB based on her choice of terminology. They, like the rest of the world do things differently there than in the US. Yes, JK it's rather common in America for older high school gals..and some guys ..to date college kids. But only in a America do we want to scream and holler about it. Sex is sex. If done responsibly, no harm need come of what comes naturally.
12.20.2006 12:39pm
Russ (mail):
divadab, thanks for trying to turn this post into one about Iraq. Wouldn't want to actually post on the topic, would you?

-Saddam has WMD's Like every single intelligence agency in the world thought. He made a mistake, not a knowing lie. There is a difference. I thought the Carlona panthers would have one of the most potent offenses in the NFL this year, but they stink. Does that make me a "liar" in your book?-Saddam is an imminent threat to the US
-I'm a uniter, not a divider It's a political slogan. Remind me again what statute covers this as criminal.
-Saddam is close to having nuclear weapons The President never said this. He said he was working towards it, which he was.
-Saddam is allied with al qaida They were peripherally aligned. I guess those terrorist training camps I helped destroy just outside of Baghdad in April of 2003 wree mock ups.
-We're winning in Iraq Again, opinion. What criminal statute covers this?
-the "Clear skies initiative", the "Healthy Forests Program", "Compassionate Conservatism", Mission Accomplished, "You're doing a great job Brownie", Don Rumsfeld will be the Sec Def for the rest of my regime (2 weeks later, fired).......I could go on for pages. Were all these political opinions covered in law, there would never be another campaign in the US ever again. Here's a novel idea - if you don't like him, don't vote for him. I think it's more that your upset that more folks voted for him than the candidate that opposed him. Again, however, that's not against the law.
12.20.2006 1:44pm
Russ (mail):
I really need to learn to proofread before I hit "post."
12.20.2006 1:46pm
John M. Perkins (mail):
While the new legislation reducing the sentence had Wilson specifically in mind, the Georgia Constitution prohibits retroactive laws.
12.20.2006 3:45pm
TDPerkins (mail):
You know divadab, nothing you've mentioned was a lie. A lie means that someone know it wasn't true when they said it.

'Course, maybe you have evindence the leftist MSM missed.

Or maybe you think CNN is a right-wing bunch of folks.

Just sayin, you're still trying to sell the chickenhawk meme, and all.

Yours, TDP, ml, msl, &pfpp
12.20.2006 6:24pm
TDPerkins (mail):
You know divadab, nothing you've mentioned was a lie. A lie means that someone know it wasn't true when they said it.

'Course, maybe you have evidence the leftist MSM missed.

Or maybe you think CNN is a right-wing bunch of folks.

Just sayin, you're still trying to sell the chickenhawk meme, and all.

Yours, TDP, ml, msl, &pfpp
12.20.2006 6:24pm
divadab (mail):
Russ and Perkins,

A lie is a deliberate untruth. You must both think that GW believes everything that he says. If that is the case, I agree, he was not lying. He was and remains in this case a complete moron and a useless chode.

(My opinion - a bit of both).

In any event, "debating" with people as clearly unfamiliar with reality as yourselves is a waste of time. I'd suggest you both take a better quality of drugs. The ones you're on are not helping.
12.21.2006 12:16am
wholyCrow:
Focusing on the issue...

The Georgian law clearly indicates that

(a) A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.

(c) A person commits the offense of aggravated child molestation (ACM) when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.

(d) A person convicted of the offense of aggravated child molestation shall be punished by imprisonment for not less than ten nor more than 30 years

These points efficiently counter any arguments based on age seperation (no provision), consent (provision), and act (provision).

Furthermore - The superior court has juristiction over those juviniles who commit serious felonies and ACM is defined as a serious felony - rightly so.

justice Hunstein's sympathy is exact with respect to these codes; as was the judgement.

Although it is an unfortunate sentence, it is precise.
12.21.2006 6:12am
wholyCrow:
The underlying morality of the act itself is relativistic and, from what we've seen in these posts, highly subjective.

Given these definitions, viewing the footage, and then asked "did the defendent commit an act of aggravated child molestation?"; the answer is clear. The fact of the matter is, as determined by law, the act of the defendent was felonious.

The onus of this sentence belongs to the defence.
12.21.2006 7:07am
TDPerkins (mail):
He was and remains in this case a complete moron and a useless chode.


Then so is every memeber of prominence in the Democratic Party whose prominence predates 9/11.

Not that at that level I'll argue with you much--they now claim they wanted to continue what we now know doesn't work.

Thank you, TDP, ml, msl, &pfpp
12.21.2006 8:43am
TDPerkins (mail):
The onus of this sentence belongs to the defence.


The burden of the sentence lies on the defendant, the onus of such a patentely unjust sentence lies on the populace of the State of Georgia.

Yours, TDP, ml, msl, &pfp
12.21.2006 8:48am
Norad:
For those who want to learn more about the events leading to this case, Atlantic Magazine has an enlightening article here: http://www.atlantamagazine.com/article.php?id=158
12.21.2006 11:37am
Passing reader:
Hans Gruber said:

I said the tape showed him having sex with two different girls, one was obviously intoxicated ("she was seen earlier on the bathroom floor") and one that was not... To disregard that initial context isn't fair to the prosecutor.


The problem here is that the context that you refer to is not available to us out here in interwebland. You quote the bathroom floor as context, but you don't really know what that means. You haven't seen the videotape or heard the stories of the people who were at the party. The jury did both and had no hesitation in immediately finding him not guilty. ABC News quotes the jury forewoman:


"We immediately saw the tape for what it was. We went back and saw it again and saw what actually happened and everybody immediately said not guilty."


He was found guilty with respect to the 15-year-old because the jury felt that they had to agree that the physical act of oral sex had taken place and knew no other way to do so than to return a guilty verdict. However, when the jury found out afterwards what the consequences of their finding were, they felt that the consequences were unjust. And not just a little bit unjust. Atlanta Magazine quotes the jury forewoman describing how the members of the jury felt after they were told that there was a mandatory ten-year sentence (a fact they didn't know before their deliberation):


"People were screaming, crying, beating against the walls... I just went limp. They had to help me to a chair.... It all boils down to the fact that there's the letter of the law and there's the spirit of the law.... Under the letter of the law these young men were guilty, but under the spirit of the law they were not guilty.... Because we were ignorant we sent this child to jail."
12.22.2006 7:18am