The Volokh Conspiracy

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.