The case of Genarlow Wilson shows clearly some of the differences between what is legal and what is right.
You would think this is an obvious distinction, but in reading debate on this case recently I was struck at how frequently people failed to make that distinction, or even deliberately sought to obscure it. It is a problem afflicting some of the comments from both sides of the arguments.
Background on the Genarlow Wilson case
Genarlow Wilson was convicted of aggravated sexual molestation for being given a blow job at a rather sordid New Year’s Eve party in 2003/2004. He was 17, she was 15. Wilson was sentenced to 10 years, with no possibility of parole. If the case had involved sexual penetration, then it would have been only a misdemeanor, worth a year prison time, because the two teenagers are so close in age to each other. But because the case involved oral sex, this provision did not apply. Wilson was convicted of a felony, as if he was an adult molesting a child. The loophole in law was closed as a direct result of the case; but not retroactively, so Wilson remained in jail.
The case recently received a new burst of publicity, when the felony conviction was overturned and replaced with a misdemeanor, and an order for Genarlow's release based on time served. There was an immediate appeal from the Attorney General, and Genarlow remains in jail for the time being. It seems likely that Wilson will be free on bond within a few weeks, but that the appeals process will grind on for months. I am hopeful for a satisfactory outcome eventually.
It is relevant also that there was another girl with whom Wilson and others had conventional sex. This girl was 17, and the following morning, not remembering all that had happened, she brought rape charges. This was why matters came to trial at all. The kids had been using a video camera at the party, and this showed clearly that she was an equal partner with the boys, aware and acquiescent in all that occurred. The trial found, correctly, that there was no rape involved. However, that video also showed the oral sex with the younger girl, which became the real basis for a conviction.
In the meantime, I have been reflecting more generally on the difference between law and ethics. The state needs laws to give guidance on how to deal with matters when it is required to step in a deal with them. But laws are often more inflexible than is appropriate -- more inflexible than is right.
The Genarlow Wilson case is a convenient illustration, to put into sharp relief some general issues with law and ethics.
Should the law be involved at all?
In many cases, involvement of the state to deal with disputes or behaviour is a symptom of the failure of other avenues; or worse, of an appropriate imposition over the head of other avenues. This applies especially with children and teenagers.
Families can and should be able to deal with many matters that would be quite serious crimes if taken up by the state. And sometimes families can't deal with them, and then the state needs to be able to step in and deal with things. In a perfect world, inappropriate consensual sexual activity between teenagers would usually be dealt with by their families. It's really hard; but if it can work that way, it is (IMO) usually the best. It becomes less and less of an option as children get older, of course. In this case, the rape charges from the older girl did justify legal intervention, although it was soon clear that there was no good basis there for a conviction.
There are plenty of other cases where legal intervention has no good justification. The inappropriate involvement of law in dealing with children is discussed in a recent New York Times op-ed by Bob Herbert: School to Prison Pipeline. (Link goes to the my5th blog copy of the op-ed.) The ACLU also produced last year: Fact Sheet - The School-to-Prison Pipeline in the National Context.
Consent
A common refrain from those who support Wilson's conviction is that there could be no consent, because the girl was only 15. (It was just 3 weeks from her 16th birthday.)
The state defines a line in sand where consent can be given for sexual activity. This is a legal fiction. It is an important fiction; in place for the protection of children, against those who would take advantage of their naivety, powerlessness and inexperience. But it is a fiction nevertheless – as anyone with a three year old will understand. Parents know the difference involved when giving a bath to a child with and without their consent.
Children give and withhold consent to all kinds of things. The effect of legal definitions is that you may not take any account of such consent in law. This is for their protection, but under some circumstances it can contribute to an injustice.
The laws of consent are especially important for the protection of children from pedophiles – adults with a pathological sexual attraction to children. Unfortunately, the way the line in the sand was drawn for this case; it handled pedophilia in exactly the same way as perfectly normal sexual drives in young people. A young woman of nearly 16 is biologically sexually mature. A young man of 17 is pretty much at his sexual prime. Sexual attraction between them is normal and natural, without a bit of pedophilia involved. That does not mean sexual activity is ethical! But it does mean that there is a difference between predatory behaviour of an adult with children, and a relationship between teenagers around about the dividing lines chosen by the state.
This is particularly ridiculous in Genarlow's case, because even on release he would have been registered as a "sex offender", and would be prohibited from contact with his own young sister. That's the law, and it is insane. It is actively and dreadfully wrong.
A felon convicted of crimes of property and rightfully serving hard time for such crimes is still a human person, worthy of support and care even as he serves out his rightful sentence. If he is fortunate, such a felon will continue to have the love and support of family, with regular visits and the hope that on release his family can help the hard process of returning to society. A sex offender, on the other hand, may be legally prohibited from meeting with young children of the family. Sometimes this is right and proper. At other times -- like this one -- it is insane.
Further on consent. The acts for which Genarlow was convicted were initiated by a fifteen year old girl. This is apparently recognized by everyone involved. Genarlow should certainly not have let them occur – that is, he should not have consented. But to worry about "consent" from the girl is gives the wrong impressive. She did not merely consent; she was actively and deliberately driving events, of her own volition.
A girl actively sought to give oral sex to a boy she knew, and he was the one who gave consent. He should not have done so; but the way in which legal terms are applied is actively misleading as a guide to the events themselves.
Plea bargains and deals
Another way in which what is legal differs from what is right is the whole matter of plea bargaining and dealing. Pragmatically, this is an important feature of an overloaded legal system. All kinds of legal fictions get agreed to for the sake of convenience and efficiency, and as a matter of hard calculation of payoffs for those involved.
In a plea bargain, someone can sometimes plead guilty to a lesser offense, even though in fact the crime itself is not well described by that offense at all. In doing so, the criminal decides to avoid the risk of conviction with harsher penalties, and the legal system avoids the costs of trial and the risk that a conviction may not actually result. There have been cases even when innocent people have pleaded guilty and been convicted of crimes, because the alternative was to fight a legal case for a much more serious crime that – because law is not perfect – they were not sufficiently confident of winning, or because the time and cost of defense was as bad as the consequences of conviction for the lesser crime.
This is relevant to this case, because in fact there were several teenagers who were convicted. All the others took plea bargains. Those convictions include convictions for a crime that never occurred; the alleged rape of the older girl.
Wilson chose to go to trial. It is still not yet clear whether or not this was a bad choice for him personally, but it was a case of Wilson standing up for what he felt was right. He was the only one of those charged with no prior legal record. And though he has suffered for his stand, some good things have resulted – such as a change to the laws to make them more ethically defensible than they were.
Mandatory sentencing
Some segments of society have been unhappy with how parole and sentencing issues have failed to be sufficiently strong. They have attempted to strengthen the force of law and reduce the capacity of human judges to adapt the consequences to circumstances, by placing very strong limits on parole and by insisting on harsh minimum sentences. In my opinion, this has entrenched and exacerbated the divide between what is legal and what is ethical.
About 2350 years ago, Aristotle in his Nicomachean Ethics noted that a problem with "laws" is that they are expressed as universal principles and so fail to account for inevitable exceptions. For real justice, it is important that there is the capacity for a judge or legislator to be able to deal with individual cases and exceptions by decree.
Mandatory and minimum sentencing laws are an attempt to limit a judge's ability to manage exceptional cases. They are conceived as a way of preventing corruption or an unjust leniency; but they also frequently contribute to an unjust harshness. In my opinion, that has certainly occurred here. The crime of which Genarlow was convicted has a harsh minimum sentence of ten years, and parole is explicitly disallowed.
In Georgia, the problem is worse than usual, because the governor apparently does not have authority under the constitution to grant a pardon. This is rather vested in a constitutionally mandated State Board of Pardons and Paroles; but their guidelines seem to make pardon in this case almost impossible.
Laws change
Another important difference between what is legal and what is right is that laws change. They can change very suddenly; far faster than ethics even if you allow for ethics as a subjective and relative quality.
In this case, the manifest injustice of the laws as they have applied to Genarlow has directly resulted in a change to the law. But the change was not made retroactive.
The law under which Genarlow was convicted did recognize the perfectly obvious fact that sex between teenagers of similar ages is in a totally different category to sex between an adult and a child. If the age difference is three years or less, the law makes sex a misdemeanor rather than a felony. However, the archaic expression of the law fails to make that important distinction for oral sex, with the inane and manifestly unjust result that if Genarlow had penetrated the girl, he would have had a far more lenient sentence, and have been out of jail long ago. But what happened is that she sucked him; and so for that he gets a felony conviction, sex offender status, a sentence ten times harsher, and no possibility for parole.
This underlines the huge difference between what is legal and what is right. The law has since been fixed. But the action of that law has not.
There are constitutional issues also with passing laws with retroactive effect. Retroactive or ex post facto laws are prohibited by the constitution. The full extent of how this works is not always clear. The intent is invariably to protect individuals from prosecution for acts that were not illegal when committed, and also from heavier penalties than those permitted at the time an offence was committed. However, the wording of restrictions may also be taken to prevent reduction in penalties.
Senate Bill 37 was introduced in the 2007 Georgia legislative session, which would have allowed Wilson's sentence to be reduced by the courts, but the session was adjourned in April, before the bill could be considered. An account is given in a press release by one of the supporters of the bill, Senator Emanuel Jones.
Weird arguments
Here are some profoundly callous or stupid arguments I have seen raised in discussions on this issue.
- "He should have considered the consequences before doing the crime." What a thoughtless response. The consequences came as a horrible surprise for those concerned. The consequences were an unintended counterintuitive loophole in the law. It's possible, though we can't tell now, that those at the party refrained from sex with the younger girl precisely because they knew sex with a minor was particularly dangerous. But the loophole meant that by letting her give them a blow job rather than by having conventional sex with her, the law treated the matter as a felony involving an adult and a child, rather than as "Romeo and Juliette" sex between teenagers of similar ages.
- "She can't give consent." Don't be stupid; of course she can. Furthermore, if she had given consent to actual sex the law would have recognized it and taken it into account. If it happened today, the law would recognize her consent and take it into account. It was a loophole in the law that mean this particular act was treated as adult abuse of a child, rather than what it really was – consensual acts between two teenagers with only a small age difference.
- "She was pressured, drugged, forced, whatever." No, she wasn't. She was not drinking heavily; some reports suggest she was not drinking at all. (I'm skeptical!) But she initiated the acts, and showed no signs of trauma or coercion. A fifteen year old is more than capable of choosing of her own volition to precipitate such acts, and all the evidence, all the testimony, indicates that this is precisely what she did.
- "He should have taken the plea deal." There were very good reasons for not taking the plea deal. The major charge, of rape, was something he definitely did not do. He had no prior record, and a plea deal would have branded him a sex offender unable even to live with his own little sister. This argument is a contemptible excuse for ignoring a plain injustice.
- "But what he did was wrong." I agree; and so does he. This is a red herring to the point at issue.
- "What if you were the girl's parent?" What is right and just is not up to the parents. But if it matters, neither the girl nor her mother pushed for prosecution. They also have declared that the result is grossly excessive.
- "We are a nation of laws." The person who said this to me even followed up by "not a nation of men". This kind of elevation of laws to be beyond question or revision or correction is naked evil. A nation is a nation of laws and of people, and when laws are unjust the people deal with it, if they have a shred of decency.
- "You can't make a retroactive law." Try, damn your eyes. This kind of thing is not what the constitutional prohibition of retroactive law was intended to prevent. I am sure a well chosen set of rules for sentencing and appeals would fix the problem with no constitutional issue. You have to want to fix it.
- "It's up to the prosecutor." This may be true; so put as much pressure on the prosecutor as humanly possible.
There have been some invalid claims on the other side as well.
- "The governor should pardon him." I don't think the governor in Georgia has that power. It was removed from the governor and vested in a State Board of Pardons and Paroles. They have a constitutional power to pardon, I think; but it would violate their current working guidelines.
- "The Attorney General should be impeached for appealing against Genarlow's release." There has been widespread anger at the Attorney General's appeal. I am suspending judgment on that, for the time being. His objection seems well founded. He has said that he will not oppose Genarlow's release on bond in July while the appeals proceed. My major concern is the sex offender registration issue. I think the authorities need to find some way to ensure that Genarlow, who is now 21, is able to return to live with his mother and sister as the appeal process proceeds. This is certainly the safest for society and for Genarlow. By all means vote for a different guy next time, however, if there is a better prospect.
- "Genarlow did nothing wrong." I disagree, so does Genarlow. Some people feel that there's nothing wrong with teenagers and consensual sex. I was struck by a recent report noting that the girl involved, who is unnamed and should remain unnamed, is now nineteen; a single mother with a two year old child. Teenagers are not good at thinking through consequences, and it is still an ethical good to apply some active constraints beyond what is applied for adults, and for others to have additional responsibilities not to acquiesce in sex with a minor however freely offered.
In my opinion, the Christian church bears a large share of responsibility for fostering the climate of fear and malice that has inhibited the capacity of the legal system to handle matters with justice and fairness. Mandatory sentencing, removing scope for parole, limited avenues of appeal, sweeping obligatory sex offender registrations, tough on crime grandstanding; these things conspire to make the law less just, less able to find a way to what is right. I know that this is not a universal; and that many Christians speaking up for the justice and fairness. The tragedy is that they so often seem to be a minority in the church, and that the church in the USA in particular has become profoundly compromised by allegiance with what is wrong.
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