Racism, Justice and Age-of-Consent Laws in America
The Case of Genarlow Wilson
David Rosen, www.counterpunch.org, August 14, 2007
Miscarriages of justice
America has long been scarred by racially-motivated miscarriages of justice, especially those rooted in white fear of interracial sex between a black man and a white woman. The case of Genarlow Wilson recalls this long history of injustice.
Each in its own way represents a peculiar miscarriage of justice. The first three, Scottsboro, Till and Johnson, reveal how institutional racism victimizes the innocent black men caught up in the furor of local politics; the Simpson case reveals how this same institutional racism can upend the justice system and undermine legitimate juridical procedure.
The case of Genarlow Wilson ...
... reveals how institutional racism involving interracial sex among young people remains a fact of American life. This racism contributed to the imprisonment of a 17-year-old black youth for engaging in oral sex with a 15-year-old white girl.
The white girl who voluntarily participated in the oral sex was under the age-of-consent law to engage in sex and, therefore, Wilson was convicted of aggravated child molestation and sentenced to 10 years in prison. This case reveals not only how interracial sexual relations remain an exposed nerve in American society, but also how age-of-consent laws serve to regulate sex, especially sex among consenting young people.
On New Year's Eve 2003, a group of high-school boys rented a motel room at a local Days Inn in Douglasville, GA, to host a party and, during the evening, girls showed up. With alcohol and marijuana lubricating the evening's festivities, things turned to sex. And in our ubiquitous YouTube digital media world, someone brought a video camera to capture the goings-on.
The video, which became a key element in the subsequent trial, shows one 17-years-old girl having sex with boys in a bathroom, then a bedroom. Wilson is also shown having sex with this girl. Another girl, who was later revealed to be 15-years-old, is shown having oral sex with Wilson and other boys.
According to court testimony, the next day the 17-year-old girl's mother called the police claiming that her daughter had been raped. The police arrested Wilson and five other boys. While the other boys accepted plea bargains for reduced sentences, Wilson insisted on his innocence.
In February 2005, Wilson went on trial for charges relating to having sex with the two girls. J. David McDade, the Douglas County, GA, district attorney, acknowledged the video as critical to the case.
As the video made clear, the rape of the 17-year old did not occur and Wilson was acquitted for this charge in less than an hour.
However, with regard to the 15-year-old, Wilson was convicted of aggravated child molestation, of violating the state's age-of-consent law, a felony. In Georgia, illicit sex is taken seriously: until 1998, oral sex between a husband and wife was illegal, punishable by up to 20 years [!] in prison. Wilson was sentenced to the mandatory 10-year prison sentence and listed on the state's sex offender registry.
[Inmate No. 1187055]
For the last two-and-a-half years, Wilson has been inmate No. 1187055 at Georgia's Burruss Correctional Training Center, a medium security prison located less than an hour south of Atlanta.
In the wake of his conviction, the Georgia legislature enacted a revised "Romeo and Juliet" exception to its age-of-consent law. Under the state's new law, the victim has to be at least 13-years but less than 16-years-of-age; the perpetrator must be 18-years and no more than four years older than the victim. Under this exception, teens convicted for consensual oral sex would be charged with a misdemeanor and receive a sentence not exceeding one year and would not be placed on the sex offender registry.
Given the changes in state law, Wilson would have been convicted of a misdemeanor. In light of this, in June, a Georgia judged ordered Wilson released. However, the state's attorney general, Thurbert E. Baker, an African-American, appealed the release and Wilson remains in prison.
As the case currently stands, there are two options.
[From tragic to absurd]
However, as this formal legal process has been going on, the case moved from the tragic to the absurd. Douglas County district attorney McDade distributed DVD copies of the New Year's Eve video to state legislators in a ham-fisted effort to block legislation that could have freed Wilson.
The U.S. attorney for Georgia, David E. Nahmias, who U.S. attorney general Alberto Gonzales has not yet removed, noted that the distribution of the videotape
Nahmias demanded that McDade stop distributing the video, but has not revealed whether he will prosecute McDade for distributing child porn.
* * *
Age-of-consent laws ...
... have a long and varied history in the West. In the medieval Europe, the earliest age-of-consent was set for girls at 12-years-old under England's 1275 Statutes of Westminster. The British laws sought to assure the chastity of the female child entering into a marriage agreement. Until recently in the secular West (and persisting in some parts of the developing world), female virginity was a form of property valuation.
By the latter-part of the 19th century in both Britain and the U.S., age-of-consent became a major political issue. In the U.S., the Christian evangelical "social purity" movement (which culminated in Prohibition) waged war against female exploitation and prostitution ("white slavery") as much as against the growing culture of female sexual pleasure.
Urbanization, industrialization and immigration/migration contributed to a new American culture, one that involved the redefinition of gender and sexual identities. Women were not simply being turned into sexual commodities through fashion, advertising and the media, they were also experiencing themselves in a profoundly new way, as sexual beings. This was very threatening, especially among young women.
California was one of the first states to raise the age-of-consent. In 1889, it raised it from 10-years to 14-years and then, in 1897, raised it again to 16-years; in 1913, it raised it to its current level of 18 years-of-age.
[The sexual revolution]
In the post-World War II era, especially as the '60s-'70s sexual revolution took shape, the battle over age-of-consent was redefined. This took place against a background of new contractive techniques (i.e., the pill), the Row v. Wade decision and the rise of a reinvigorated feminist movement.
Unfortunately, feminist and liberals often joined with religious conservatives to restrict the sexuality of young people. The new battle replaced the demand to preserve a young girl's chastity by the need to protect her as a vulnerable minor. Either way, the unstated effort was to de-sexualize the young girl (to say nothing of the boy).
Ironically, during the '60s, the issue of youth sexuality found unexpected expression as part of President Johnson's "war on poverty." After nearly two decades of struggle, liberals sought to address a critical aspect of poverty by restricting what they identified as "excess fertility." They were shocked by the relatively high birthrate among unmarried women (and especially adolescent girls) dwelling in America's black ghettos. These "sex police" liberals linked halting premarital sex with their efforts to end poverty.
By the 1990s, ...
... the militant Christian movement further redefined the battle over age-of-consent. Fury over social hot-button issues like abortion, gay marriage and stem-cell research was applied to youthful sex.
The Christian right was (and is!) terrified by youthful sexual hedonism. The wildness of adolescents promoted by the cultural distraction industry
is irreconcilable with puritan virtues.
This new climate of moral jurisprudence has combined with age-old Southern racism and the very deep panic among some whites about sex between a black male and white female, no matter what age, to keep Genarlow Wilson in prison.
* * *
A 2004 report ...
... prepared for the U.S. Department of Heath and Human Services by the Lewin Group,
finds that, nationally, age-of-consent laws for sexual intercourse and, by extension, other sex acts range from 16 to 18 years-of-age.
According to the report, the age-of-consent is
Age-of-consent laws for the fifty states and the District of Columbia are a crazy quilt: thirty-three adhere to 16-years, six to 17-years and twelve to 18-years of consent.
These different age-of-consent standards are, in term, complicated by a three additional age-related considerations:
These age factors are further modified by individual state requirements.
Age differences are complicated over the viewing of "adult" materials. While the age-of-consent for sexual intercourse is 16-years to 18-years, viewing porn is 18-years for forty-four states and the District. However, for seven states (Alabama, Idaho, Maine, Oklahoma, Oregon, Vermont and Washington) viewing porn is restricted to those at least 21-years-of-age. Oh yes, one can imagine a U.S. (male) soldier 18 to 20 years old returning from the battlefield of Afghanistan or Iraq being arrested for viewing porn.
These age differences are further complicated by the sex act involved. While most age-of-consent laws are addressed principally to sexual intercourse, non-coital sex can involve mutual masturbation, oral sex and anal intercourse.
Preliminary research reporting indicates that, in the face of an aggressive conservative Christian campaign promoting abstinence, there has been an increase in non-coital sex, especially oral sex, among teenagers.
Most states set age-of-consent for heterosexual oral sex (i.e., male-female and going either way) at 16-years to 18-years comparable to sexual intercourse.
However, these laws get even more complicated when the oral sex takes a homo-erotic form whether it be male-male or female-female encounter.
Based on 2001 data (which may well have be revised), homo-erotic oral sex among minors (under 18-years)
* * *
American sex policy, ...
... especially involving adolescents, is a literal battleground. The legacy of the Christian right's puritanism hangs over the nation like a decaying slaughter-house death stench. Innumerable state and local governments cloned Bush administration security efforts into programs intended to limit personal sexual freedom, especially youthful sexuality. Nevertheless, conservative state legislations attempts to regulate the personal lives of an increasingly sophisticated youth population are facing growing resistance.
This resistance ...
... is much like the general public's revulsion at the Bush administration's policies in Iraq, its failure over Katrina and its attitude about global warming. More and more Americans realize that the dominant conservative Republic regime is based on false hopes and contemptible lies. Unfortunately, like the Supreme Court, the legacy of the Christian right will linger on far longer than its hold on state power.
In Kansas in 2000, ...
... Matthew Limon, who was diagnosed as "borderline intellectual functioning," had just turned 18-years-old when he was arrested for aggravated child molestation for having oral sex with a nearly 15-year-old -- but this youth was a boy! Limon was sentenced to 206 months (17-plus years). Had Limon had sex with a girl, he would have been released under a "Romeo and Juliet" exception.
In 2004, ...
two Florida adolescents, a 16-year-old girl and a 17-year-old boy, took digital photos of themselves nude and having sex. They then sent the photos via an email account from the girl's computer to the boy's email address. Somehow, the Tallahassee police got possession of the photos and both young people were arrested and charged with producing, directing or promoting photographs featuring the sexual conduct of a child.
The Florida Appeals Court in February 2007 upheld the charge against the girl. It's rationale? Either the boy or girl could sometime in the future sell their pictures to child pornographers or show them to friends. American justice at work.
Last year ...
... the Utah Supreme Court took on a case in which a 13-year-old Ogden girl was charged with being both an offender and a victim for the same act; she was caught having consensual sex with her 12-year-old boyfriend. In punitive American justice fashion, both were found guilty of violating a state law that prohibits sex with someone under 14-years; she was the victim in the case against the boy, he was found guilty of the same violation by engaging in sexual activity with her.
A hopeful note, last year the California Supreme Court overturned a law requiring an adult who engages in oral sex with a minor be registered for life as a sex offender.
* * *
The American court system is a conservative social institution
It is controlled by aging white men whose sexuality was formed, for better or worse, a half-century ago. Nevertheless, their legal decisions must be placed against equally significant social developments that are often driven by the young people they not only judge but, a half-century in the future, will supersede them.
This future ...
... portends to be something quite different. According to a 2003 survey by the Centers for Disease Control, nearly half of all U.S. students in grades 9-12 have had sex. In addition, between 1995 and 2002, U.S. teen pregnancy rates declined by almost one-quarter (24%).
In another study by John Santelli of Columbia University's Mailman School of Public Health (with Alan Guttmacher Institute support),
the evidence suggest that the United States is following patterns seen in other developed countries: The increased availability and use contraceptives significantly contributes to the decline in teenage pregnancy rates.
In the wake of new evidence and the self-evident failure of Bush-backed abstinence-only campaign, states across the country have begun to revise laws involving the prosecution of teens for sex offences.
For example, all states are required to adopt the Adam Walsh Act of 2006 that standardizes sexual offender and registration laws. It also exempts teens convicted of consensual sex if the age difference is no more than four years and the younger participant is at least 13-years-old.
[Things are changing]
Other state actions suggest things are changing.
In the face of these developments, one can only hope that the Georgia Supreme Court will rule against the state attorney general and release Genarlow Wilson.
For more information about the Genarlow Wilson case, see www.wilsonappeal.com
David Rosen can be reached at email@example.com