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:
Race and the Wilson Case:

Lawprof Doug Berman (Sentencing Law & Policy) asks: "Had Wilson been white, would he even had been charged with this offense, let alone sentenced to 10 years imprisonment?" "Had Wilson been white, would the Georgia legislature have made its subsequent change in the law retroactive to give Wilson the more sensible justice all others will now receive?"

One can always speculate this way; but it's not clear to me why this is a sensible speculation. The girls with whom Wilson had sex — the alleged rape victim, and the 15-year-old whom the oral sodomy age-of-consent is supposed to be protecting — are black, too. (See this story.) As the article paraphrases the prosecutor's view, "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 [the prosecutor] .... 'Calling me a racist denigrates the people who are victims in this case.'"

Harvard lawprof Randy Kennedy had made this point in other contexts as well — since most crime is intraracial, seeing prosecutors or police being tough on black criminals (and the defendant in this case did indeed commit a crime) may simply mean that they're trying to protect black victims. Conversely, an environment in which prosecutors are afraid to take a hard line against black criminals because of the fear of being assumed to be racist is an environment that's not good for law-abiding blacks.

So I see little reason to assume that there's much of a racial dimension here. I continue to think the law is too harsh, and unreasonably so in its different treatment of post-2006 behavior vs. pre-2006 behavior and of oral sex vs. genital sex. But while one can always speculate about alleged prosecutor racial bias, I don't see much grounds for anything but speculation here.

Sex and Liberty:

Doug Berman (Sentencing Law & Policy) also asks, about the Wilson story (the 10-year prison term for a 17-year-old boy having oral sex with a 15-year-old girl): "Doesn't this story sound like one we might hear from some repressive foreign country, and not from a state in a country that supposedly prides itself on liberty and freedom?"

I think the matter is more complex than what Prof. Berman's "provocative question[]" suggests, in two ways.

1. Most obviously, the debate here is about conduct involving minors, and about the length of the sentence. To my knowledge, even Prof. Berman doesn't argue that if Georgia "prides itself on liberty," it must completely decriminalize sex between 17-year-olds and 15-year-olds. At the very least, a decision whether to outlaw sex between 17- and 15-year-olds is within a liberty-loving country's judgment, given that one underlying premise of liberty -- people's right to make choices -- assumes a competence to make choices that may well be lacking in 15-year-olds. And while the length of the sentence is relevant to whether the law is sensible, fair, or merciful, I'm not sure it tells us much about the state's commitment to "liberty," especially where minors are involved.

2. On the other hand, we need to acknowledge that the origins of the pre-2006 Georgia law, which had much harsher sentences for oral sex between 17-year-olds and 15-year-olds than for genital sex between 17-year-olds and 15-year-olds, stem from something far broader than just sex involving minors: To this day, a Georgia statute (§ 16-6-2) expressly outlaws "any sexual act involving the sex organs of one person and the mouth or anus of another," and punishes it with one to twenty years in prison. It was only a 1998 Georgia Supreme Court decision, Powell v. State, that decriminalized consensual oral sex (even between spouses!), by holding -- five years before Lawrence v. Texas -- that the state constitution protected such sexual autonomy.

As I understand it, the pre-2006 rules having to do with sex with minors stemmed from precisely this legal background: Consensual genital sex among adults was lawful, and when it was done with under-16-year-olds the law didn't treat it very harshly so long as the other party was 18 or younger. But consensual oral sex among adults was a crime, and there was no special solicitude for sex between two relatively young people. So while the pre-2006 rule as to oral sex with under-16-year-olds wasn't particularly contrary to liberty, it did stem from a rule that was indeed a substantial restraint on liberty -- a ban on what consenting adults, including consenting married adults, could do in their own home (and what 75% of adult Americans of all ages have in fact done, and what 60% find "very appealing" or "somewhat appealing" to receive, Michael et al., Sex in America (1994) (1992 data)).

Yet as I understand it was also a substantial restraint on liberty that had been prevalent (though, as in America, very rarely enforced) even in otherwise free countries (especially Anglophone ones) until recently. Some American states may be fairly late in decriminalizing such sex, but late by a matter of a few decades rather than centuries. The bottom line is that, despite libertarian views about liberty being indivisible, different countries have historically respected different forms of liberty -- America has been more liberal as to free speech (especially speech not related to sex) and, at least until recently, less as to sex; other countries have been the other way around; different countries have different views about economic liberties, about freedom to own the tools needed to defend one's life against criminals, and the like.

So the story, once one looks closely at it, sounds like what it is: One we might hear from a country that has had a relatively restrictive view of sexual liberty until quite recently, and still in some measure exhibits relics of that view, no matter what its views of other liberties might be.

Genarlow Wilson's 10-Year Prison Sentence Set Aside as Cruel and Unusual Punishment:

Here's the Georgia Supreme Court decision, which is 4-3. The bottom line:

[W]e conclude that the habeas court properly ruled that Wilson’s sentence of ten years in prison for having consensual oral sex with a fifteen-year-old girl when he was only seventeen years old constitutes cruel and unusual punishment.

I'll have more when I finish reading the case. Thanks to Aeon Skoble (HNN) for the pointer.

UPDATE: As promised, here's more (some paragraph breaks added):

Legislative enactments are the clearest and best evidence of a society’s evolving standard of decency and of how contemporary society views a particular punishment. In determining whether a sentence set by the legislature is cruel and unusual, this Court has cited with approval Justice Kennedy’s concurrence in Harmelin v. Michigan. Under Justice Kennedy’s concurrence in Harmelin, as further developed in Ewing v. California, in order to determine if a sentence is grossly disproportionate, a court must first examine the "gravity of the offense compared to the harshness of the penalty" and determine whether a threshold inference of gross disproportionality is raised.

In making this determination, courts must bear in mind the primacy of the legislature in setting punishment and seek to determine whether the sentence furthers a "legitimate penological goal" considering the offense and the offender in question. If a sentence does not further a legitimate penological goal, it does not "reflect[] a rational legislative judgment, entitled to deference," and a threshold showing of disproportionality has been made. If this threshold analysis reveals an inference of gross disproportionality, a court must proceed to the second step and determine whether the initial judgment of disproportionality is confirmed by a comparison of the defendant’s sentence to sentences imposed for other crimes within the jurisdiction and for the same crime in other jurisdictions....

Here, the legislature has recently amended § 16-6-4 to substitute misdemeanor punishment for Wilson’s conduct in place of the felony punishment of a minimum of ten years in prison (with the maximum being 30 years in prison) with no possibility of probation or parole. Moreover, the legislature has relieved such teenage offenders from registering as a sex offender. It is beyond dispute that these changes represent a seismic shift in the legislature’s view of the gravity of oral sex between two willing teenage participants. Acknowledging ... that no one has a better sense of the evolving standards of decency in this State than our elected representatives, we conclude that the amendments to § 16-6-4 and § 42-1-12 [the sex offender registration statute] reflect a decision by the people of this State that the severe felony punishment and sex offender registration imposed on Wilson make no measurable contribution to acceptable goals of punishment.

[Footnote: Although the dissent correctly notes that the General Assembly stated that the 2006 Amendment to § 16-6-4 should not be applied retroactively, the dissent erroneously concludes that the cruel and unusual punishment analysis ends there.... [C]ruel and unusual punishment is an evolving constitutional standard and ... the most objective evidence of that evolving standard are legislative enactments.... Thus, although this Court cannot apply the 2006 Amendment to § 16-6-4 retroactively, we can rely on that amendment as a factor representative of the evolving standard regarding the appropriate punishment for oral sex between teenagers.]

Stated in the language of Ewing and Harmelin, our legislature compared the gravity of the offense of teenagers who engage in oral sex but are within four years of age of each other and determined that a minimum ten-year sentence is grossly disproportionate for that crime. This conclusion appears to be a recognition by our General Assembly that teenagers are engaging in oral sex in large numbers; that teenagers should not be classified among the worst offenders because they do not have the maturity to appreciate the consequences of irresponsible sexual conduct and are readily subject to peer pressure; and that teenage sexual conduct does not usually involve violence and represents a significantly more benign situation than that of adults preying on children for sex....

[B]ased on the significance of the sea change in the General Assembly’s view of the appropriate punishment for teenage oral sex, we could comfortably conclude that Wilson’s punishment, as a matter of law, is grossly disproportionate to his crime without undertaking the further comparisons outlined in Harmelin and Ewing. However, we nevertheless will undertake those comparisons to complete our analysis.

A comparison of Wilson’s sentence with sentences for other crimes in this State buttresses the threshold inference of gross disproportionality. For example, a defendant who gets in a heated argument and shoving match with someone, walks away to retrieve a weapon, returns minutes later with a gun, and intentionally shoots and kills the person may be convicted of voluntary manslaughter and sentenced to as little as one year in prison. A person who plays Russian Roulette with a loaded handgun and causes the death of another person by shooting him or her with the loaded weapon may be convicted of involuntary manslaughter and receive a sentence of as little as one year in prison and no more than ten years. A person who intentionally shoots someone with the intent to kill, but fails in his aim such that the victim survives, may be convicted of aggravated assault and receive as little as one year in prison. A person who maliciously burns a neighbor’s child in hot water, causing the child to lose use of a member of his or her body, may be convicted of aggravated battery and receive a sentence of as little as one year in prison. Finally, at the time Wilson committed his offense, a fifty-year-old man who fondled a five-year-old girl for his sexual gratification could receive as little as five years in prison, and a person who beat, choked, and forcibly raped a woman against her will could be sentenced to ten years in prison.

There can be no legitimate dispute that the foregoing crimes are far more serious and disruptive of the social order than a teenager receiving oral sex from another willing teenager. The fact that these more culpable offenders may receive a significantly smaller or similar sentence buttresses our initial judgment that Wilson’s sentence is grossly disproportionate to his crime. Finally, we compare Wilson’s sentence to sentences imposed in other states for the same conduct. A review of other jurisdictions reveals that most states either would not punish Wilson’s conduct at all or would, like Georgia now, punish it as a misdemeanor. Although some states retain a felony designation for Wilson’s conduct, we have found no state that imposes a minimum punishment of ten years in prison with no possibility of probation or parole, such as that provided for by former § 16-6-4. This review thus also reinforces our initial judgment of gross disproportionality between Wilson’s crime and his sentence.

The dissent indeed relies, as the footnote suggests, chiefly on the fact that the legislature decided that the 2006 Amendments to § 16-6-4 shouldn’t be applied retroactively. It also generally relies on the deference due legislative judgments about sentences, and on Widner v. State, a 2006 Georgia Supreme Court case that the majority distinguishes. (I won’t get into that debate; if you’re interested, read Widner and the Wilson opinions’ discussion of Widner.)

My sense of the matter: I think there are institutional problems with courts’ evaluating the length of confinement under the Cruel and Unusual Punishment Clause; it’s hard to see a good legal rule that courts can sensibly apply in a wide range of cases, and to my knowledge there isn’t the sort of textual or original meaning evidence that strongly points to requiring courts to engage in such a mushy judgment. But the Supreme Court has said that such evaluation should take place, though with a great deal of deference to the legislature. And if there is to be such an evaluation, this would look like an excellent case for setting the sentence aside, for the reasons the majority mentions.

The Georgia Legislature has decided that consensual oral sex between 17- and 15-year-olds is not a very serious transgression. (It had decided the same about genital sex years before.) That has to be the implicit judgment behind making it a misdemeanor, and the nonretroactivity provision doesn’t undermine this implicit judgment. This judgment, coupled with the comparisons with other crimes and with the behavior of other jurisdictions — and the absence of statutory aggravating factors, such as the past convictions at issue in the California Three Strikes law, which the Court has upheld — provides strong and objective evidence in favor of the Georgia Supreme Court’s conclusion.

I should say that I at first thought there was no Cruel and Unusual Punishment Clause issue here, but the Georgia Supreme Court’s analysis has persuaded me.

Finally, for those who wonder about the racial dimensions of the case, note that the four white Justices on the Georgia Supreme Court split 2-2, and the three black Justices split 2-1 in Wilson’s favor — no stark racial disparity here (though, as I noted earlier, there was "little reason to assume that there’s much of a racial dimension here" even before this decision).

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: