Wilson v. State: Difference between revisions

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{{Current-relatedUse mdy dates|date=JuneFebruary 20072012}}

{{Infobox Courtcourt Casecase

| name = Wilson v. State

| court = [[Monroe County, Georgia|Monroe County]] Superior Court

| image =

| date_filed =

| date_decideddate decided= [[April 28]], [[2006]]

| full_namefull name = Genarlow Wilson v. State of Georgia

| citations =

| judges = Judge Thomas Wilson

| prior_actionsprior actions = ''State v. Wilson'' (trial in Douglas Superior Court); ''Wilson v. State'' 279 Ga. App. 459 (appeal to Court of Appeals of Georgia); ''Wilson v. State'' 2006 Ga. LEXIS 1036 (application to [[Supreme Court of Georgia (U.S. state)|Supreme Court of Georgia]] for [[certiorari]] denied)

| subsequent actions = Appeal granted [[Supreme Court of Georgia (U.S. state)|Supreme Court of Georgia]] October 26, 2007

| subsequent_actions = N/A

| opinions = <br />

* new conviction of "misdemeanor aggravated child molestation" substituted for original conviction of "aggravated child molestation"

| transcripts =

}}

'''''Wilson v. State''''', 652 S.E. 2d 501, 282 Ga. 520 (2007) was a [[Georgia (U.S. state)|Georgia]] court case brought about to appeal the aggravated [[child molestation]] [[conviction]] of [[GeorgiaGenarlow Wilson (U.S.born state)|Georgia]]April man8, Genarlow1986, to Juanessa Bennett and Marlow Wilson).

Wilson had beenwas convicted of aggravated [[Child sexual abuse|child molestation]] in 2005, becauseafter, at the age of seventeen17, he had engaged in [[oral sex]] with a willing fifteen15-year-old at a New Year's Eve party., Bothan Wilsonoffense andcarrying thea fifteen-year-oldmandatory are [[African American]]. The agepenalty of consent10 inyears' Georgia is sixteenimprisonment.<ref name="NYT121906">''[http://www.nytimes.com/2006/12/19/us/19georgia.html?_r=3&ex=157680000&en=d32f07af9af73a11&ei=5124&partner=permalink&exprod=permalink&oref=slogin&oref=slogin&oref=slogin{{cite Georgia Man Fights Conviction as Molester]'' - ''[[New York Times]]'', Tuesday [[December 19]], [[2006]]</ref><ref>[http://www.atlantamagazine.com/article.php?id=158 Why is Genarlow Wilson in Prison?] - by Chandra R. Thomas, ''Atlanta Magazine''</ref>web

|date = October 26, 2007

|author = Joyner, Tammy

|url = http://www.ajc.com/metro/content/metro/stories/2007/10/26/genarlow_1026.html

|title = Genarlow Wilson rejoices over his release

|publisher = [[The Atlanta Journal-Constitution]]

|accessdate = October 26, 2007

|archiveurl = https://web.archive.org/web/20071028022327/http://www.ajc.com/metro/content/metro/stories/2007/10/26/genarlow_1026.html

|archivedate = October 28, 2007

|url-status = dead

|df = mdy

}}</ref><ref>

{{cite web

|date= October 27, 2007

|author= Christen, Tracey

|url= http://www.11alive.com/news/article_news.aspx?storyid=105408&provider=top

|title= Genarlow Wilson Freed From Prison

|publisher= [[WXIA-TV]]

|accessdate= October 27, 2007

}}{{Dead link|date=April 2019 |bot=InternetArchiveBot |fix-attempted=yes }}

</ref><ref>{{cite web

|date=October 27, 2007

|author= Fausset, Richard

|url= http://www.latimes.com/news/nationworld/nation/la-na-teensex27oct27,1,2387227.story?coll=la-headlines-nation&ctrack=1&cset=true

|archive-url= https://archive.today/20130127235210/http://www.latimes.com/news/nationworld/nation/la-na-teensex27oct27,1,2387227.story?coll=la-headlines-nation&ctrack=1&cset=true

|url-status= dead

|archive-date= January 27, 2013

|title= After teen sex ruling, he's a free man

|work=Los Angeles Times

|accessdate=October 27, 2007}}</ref><ref>{{cite news

|date = October 26, 2007

|url = http://ap.google.com/article/ALeqM5ji6SjalKvSRT9XF0pDrDqttM-VxQD8SH6IBO0

|title = Georgia Court Frees Man in Teen Sex Case

|agency = Associated Press

|accessdate = October 27, 2007

|url-status = dead

|archiveurl = https://archive.today/20070609092030/http://ap.google.com/article/ALeqM5ji6SjalKvSRT9XF0pDrDqttM-VxQD8SH6IBO0

|archivedate = June 9, 2007

|df = mdy-all

}}</ref>

At the time of his conviction, provisions for similarity in age that allowed underage consent to be taken into account were only applicable to vaginal sex. As the case involved oral sex, the consent of the girl was not at that time legally relevant.<ref name="NYT121906">[https://www.nytimes.com/2006/12/19/us/19georgia.html?_r=3&ex=157680000&en=d32f07af9af73a11&ei=5124&partner=permalink&exprod=permalink&oref=slogin&oref=slogin&oref=slogin "Georgia Man Fights Conviction as Molester"] – ''[[New York Times]]'', Tuesday December 19, 2006 {{Webarchive|url=https://web.archive.org/web/20230203155217/https://www.nytimes.com/2006/12/19/us/19georgia.html?_r=3&ex=157680000&en=d32f07af9af73a11&ei=5124&partner=permalink&exprod=permalink&oref=slogin&oref=slogin&oref=slogin|date=February 3, 2023}}</ref><ref>[http://www.atlantamagazine.com/article.php?id=158 Why is Genarlow Wilson in Prison?] {{webarchive|url=https://web.archive.org/web/20070615135642/http://www.atlantamagazine.com/article.php?id=158 |date=June 15, 2007 }} – by Chandra R. Thomas, ''Atlanta Magazine''</ref>

On October 26, 2007, the Georgia State Supreme Court, while not overturning the conviction itself, ruled that Wilson's sentence was disproportionate. He was released later that day, after serving over 4 years of his 10-year prison sentence in the [[Al Burruss Correctional Training Center]] in [[Forsyth, Georgia]].

==Background==

During a private New Year's Eve party that Wilson attended in a [[Days Inn]] motel room in the small town of [[Douglasville, Georgia]], in 2003, when he was 17 years old, multiple sex acts took place.<ref name="ABC"/> Wilson engaged in [[oral sex]] with a 15-year-old girl, and the girl later stated consistently that the act was consensual; the girl was recorded having oral sex with several boys in succession, including Wilson.<ref name="ABC"/> At the time, Wilson was an honor student, star athlete, and homecoming king.<ref name="ABC"/>

The conviction was based on an amateur video tape showing Wilson engaging in sex with a 17-year-old girl during a private party, and later receiving oral sex from a 15-year-old girl.<ref name="BlackAmerica">''[http://www.blackamericaweb.com/site.aspx/bawnews/wilson0111 Teen’s 10-Year-Term for Consensual Sex Draws Attention to Georgia Law]'' - from BlackAmericaWeb, 10 January 2006</ref><ref name="ESPN"/> The video shows the 17-year-old girl on the bathroom floor, then later having sex with Wilson. She appeared sleepy or intoxicated during the sex act but did not ask Wilson to stop. <ref name=ABC/> Waking up naked and in a stupor the next morning, she claimed to have been raped.<ref name=ESPN/> Investigating the alleged rape, police later found condoms and evidence of drinking, as well as the video camera, in the motel room used for the party.<ref name=ABC/>

Additionally, Wilson engaged in sex with a 17-year-old girl, who woke up the next morning naked and disoriented and claimed to have been raped, which triggered an investigation. <ref name="ABC"/><ref name=ESPN/> Police found condoms and evidence of drinking, as well as a video camera with footage of Wilson engaging in the sex acts, in the motel room used for the party.<ref name=ABC/> In the video, the 17-year-old girl appeared sleepy or intoxicated during the sex act, but did not ask Wilson to stop.<ref name=ABC/>

A jury acquitted Wilson of raping the older girl, but convicted him of aggravated child molestation against the 15-year-old. The "aggravated" nature of the charge refers to [[fellatio]] (oral sex) rather than a mere "immoral or indecent act." Had the two teenagers had intercourse without oral sex, Wilson would have been charged with a misdemeanor, punishable up to 12-months, with no sex offender status, instead of the 10-year minimum term that the judge gave him.<ref name="NYT121906" />

==Legal process==

===Initial trial and plea deal===

The then-15 -year -old girl, who has remained unnamed in the press as a 'victim of a sex offense', has repeatedly stated that theher act of oral sex with Wilson was consensual; however, thoughas shea legallylegal matter she could not consent.<ref name="NYT121906" /> The jury acquitted Wilson of the rape charge,. butBut, as the [[age of consent]] in Georgia is 16, they voted to convict him of aggravated child molestation for the oral sex incident, with the forewoman tearfully reading the verdict. Some jury members later complained they had not understood that the verdict would result in a 10 -year [[minimum sentence]], plus one year on [[probation]].<ref name="ESPN">''[http://sportswww.espn.go.com/espn/eticket/story?page=wilson&redirected=true Outrageous Injustice]'' -– Thompson, Wright, [[ESPN]] website, 24 January 24, 2007 [http://www.espn.com/espn/eticket/story?page=wilson&redirected=true]</ref> plus one year on [[probation]].

Wilson received the 10-year sentence following ahis refusal to enter into a proposed [[plea bargain]], statingas ofhe stated that his adamant belief was that "It's all about doing what's right [...] And what's right is right, and what's wrong is wrong. And I'm just standing up for what I believe in."<ref name=ABC/> His decision to reject the plea agreement, as well as his continued fight to overturn his conviction, takes into account that [[sex offender]]s in Georgia must register themselves and are subject to penalty laws for life,<ref name="ESPN"/> and that the law was not intended to penalize teenage partners.<ref name=ABC/> As the law stands, Wilson would not even have been able to return to his own family after an early release, as he had an 8-year-old sister Jiaya Bennett with whom he would be forbidden contact.<ref name="NYT">{{cite web

|date=[[FebruaryDecember 7]]21, [[2006]]

|url= https://www.nytimes.com/2006/12/21/opinion/21thu4.html?pagewanted=all

|url= http://abcnews.go.com/Primetime/LegalCenter/Story?id=1693362&page=3

|title= Outrage After Teen Gets 10 Years for Oral Sex With Girl

|publisher= [[ABC News]]

|accessdate=2007-07-02}}</ref> His decision, as well as his continued fight to overturn his conviction also take into account that [[sex offender]]s in Georgia must register themselves and are subject to penalty laws for life,<ref name="ESPN"/> and that the law was not intended to penalize teenage partners<ref>http://abcnews.go.com/Primetime/LegalCenter/Story?id=1693362&page=3 :A state legislator who helped pass the molestation law said it was never meant to police teen sex. "The legislative intent was to protect women and children from sexual predators," said Rep. [[Tyrone Brooks]], a [[Democratic Party (United States)|Democrat]] in the Georgia State Assembly.</ref> (a fact which has since been included in updated legislation). As the law stands, Wilson would not even be able to return to his own family after an early release, as he has an 8-year-old sister and would be forbidden contact.<ref name="NYT">{{cite web

|date=[[December 21]], [[2007]]

|url= http://select.nytimes.com/search/restricted/article?res=F30D15FB3B550C728EDDAB0994DE404482

|title= Free Genarlow Wilson Now

|publisherwork= [[New York Times]]

|accessdate=March 29, 2008

|accessdate=2007-07-02}}</ref> The other young males involved (including one charged for the same oral sex acts as Wilson) accepted plea bargains with the possibility of parole; they are required to register as convicted sex offenders.<ref name="BlackAmerica"/> Wilson had been offered, and rejected, a plea bargain for a five year sentence with the possibility of parole before the trial. After the jury had returned the guilty verdict, the prosecutor offered the same 5-year plea bargain again, and Wilson refused again. Another young man involved in the case had accepted a similar 5-year plea bargain and was paroled after two years.<ref name=ESPN/>

|archiveurl=https://web.archive.org/web/20160220045152/https://www.nytimes.com/2006/12/21/opinion/21thu4.html?pagewanted=all

|archive-date=February 20, 2016}}</ref> The other young males involved (including one charged for the same oral sex acts as Wilson) accepted plea bargains with the possibility of parole; they were required to [[Sex offender registries in the United States|register as convicted sex offenders]].<ref name="BlackAmerica">''[http://www.blackamericaweb.com/site.aspx/bawnews/wilson0111 Teen’s 10-Year-Term for Consensual Sex Draws Attention to Georgia Law] {{webarchive|url=https://web.archive.org/web/20070202055628/http://www.blackamericaweb.com/site.aspx/bawnews/wilson0111 |date=February 2, 2007 }}'' – from BlackAmericaWeb, January 10, 2006</ref> Wilson had been offered a plea bargain for a five-year sentence with the possibility of parole before the trial but rejected the offer. After the jury had returned the guilty verdict, the prosecutor offered the same 5-year plea bargain again, and Wilson refused again. Another young man involved in the case who had accepted a similar 5-year plea bargain was paroled after two years.<ref name=ESPN/>

===Legislative action===

In part because of the publicity surrounding this case, the law under which Wilson was convicted was changed after his conviction; the act would now be treated as a [[misdemeanor]] with a maximum sentence of one year in prison, and no sex offender registration.<ref name=ESPN/> While Wilson's attorneys argued that such a change in the law should endreverse thehis prosecutionconviction,<ref>[http://www.wilsonappeal.com/certiorari.html Petition for a Writ of Certiorari], filed by Brenda Joy Bernstein in the Georgia Supreme Court</ref>, the Legislature specifically prohibited the bill (from being applied [[Ex post facto law|retroactively]].<ref>[http://www.legis.ga.gov/legis/2005_06/versions/hb1059_HB_1059_AP_11.htm House Bill 1059] of{{webarchive|url=https://web.archive.org/web/20070705095142/http://www.legis.ga.gov/legis/2005_06/versions/hb1059_HB_1059_AP_11.htm the|date=July 20065, Legislative2007 session) from being applied retroactively.}}</ref>

A bipartisan group of legislators introduced a bill in the 2007 Georgia legislative session (S.B. 37) that would allow Wilson's sentence to be reduced by the courts. This session was adjourned in April, before the bill could be considered.<ref>{{usurped|1=[https://archive.today/20070706183802/http://www.emanueljones.com/070406.htm Genarlow Wilson: search for justice continues]}} -– Press release by State Senator Emanuel Jones, 10th District of Georgia {{Dead link|date=September 2023}}</ref> Several legislators have subsequently called for a rare special session of the Legislature to reconsider the bill. <ref>[http://www.ajc.com/metro/content/metro/stories/2007/06/18/0619metwilson.html Law change sought in Genarlow Wilson case] -– by Carlos Campos, ''[[Atlanta Journal-Constitution]]'', June 18, 2007 {{Webarchive|url=https://web.archive.org/web/20070622144447/http://www.ajc.com/metro/content/metro/stories/2007/06/18/0619metwilson.html|date=June 22, 2007}}</ref>

After the trial ended, the [[District Attorney]]'s office received numerous open record requests for the videotape. David McDade inquired of the Prosecuting Attorneys' Council of Georgia whether the videotape had to be released under the Open Records Act. The Council concluded that "if no one has filed for a protection order ... claiming that disclosure of the video tape would invade individual privacy, we can find no reason why disclosure of the video tape is not required under ... the Open Records Act."<ref>[http://edition.cnn.com/2007/US/07/13/teen.sex/index.html Release of tape in teen sex case may violate child-porn law], CNN, July 13, 2007, retrieved December 11, 2009 {{Webarchive|url=https://web.archive.org/web/20220812191932/http://edition.cnn.com/2007/US/07/13/teen.sex/index.html|archive-date=August 12, 2022}}</ref> Ignoring the fact that it was the Legislature that wrote the Open Records Law (and which caused the initial controversy by refusing to apply the "Romeo and Juliet" clause retroactively), Georgia State Sen. Emanuel Jones said he would introduce legislation to block district attorneys from handing over photographic images in sex cases. "'I'm going to call it the David McDade Act,' Jones said. 'Sometimes we have to protect our kids from district attorneys.'"<ref>[https://www.usatoday.com/news/nation/2007-07-13-teen-sex-tape_N.htm Prosecutor Under Fire in Teen Sex Case], Associated Press, July 13, 2007{{Webarchive|url=https://web.archive.org/web/20080918042359/https://www.usatoday.com/news/nation/2007-07-13-teen-sex-tape_N.htm|date=September 18, 2008}}</ref> As the participants shown having sex in the video were under 18, the videotape constitutes [[child pornography]] under [[federal law]]. The [[Adam Walsh Child Protection and Safety Act]] prohibits prosecutors from allowing defendants in criminal proceedings to possess a copy of any evidence that constitutes child pornography, even if the purpose is to mount a defense against the charge. Under this law, Wilson and his defense team are prohibited from having a copy of the videotape that prosecutor McDade has distributed to anyone else who has requested it.<ref>[http://www.blogdenovo.org/archives/001747.html Genarlow Wilson Needs the Walsh Act]{{Webarchive|url=https://web.archive.org/web/20160303173055/http://www.blogdenovo.org/archives/001747.html|date=March 3, 2016}}</ref>

===Appeals===

The case was appealed to the [[Supreme Court of Georgia (U.S. state)|Georgia Supreme Court]]; the court twice refused to hear the case, with the presiding judge delivering an opinion that said she was "very sympathetic to Wilson's argument" but that she was bound by the Legislature's decision to make the law not apply retroactively.<ref>''[http://www.gasupreme.us/pdf/s06c1689.pdf Order of the Court, Wilson v. State] {{webarchive|url=https://web.archive.org/web/20070616124541/http://www.gasupreme.us/pdf/s06c1689.pdf |date=June 16, 2007 }} (PDF document)]''</ref>

The governor does not have [[pardon]] power in Georgia, but the prosecutor has the power to set aside the verdict. The prosecutor Eddie Barker, apparently waiting for an admission of guilt, has said "the one person who can change things at this point is Genarlow. The ball's in his court."

===''Habeas'' petition===

{{Current|date=June 2007}}

In response to a petition of ''[[habeas corpus]]'' filed by Wilson's attorneys, the Superior Court of Monroe County in the State of Georgia reduced Wilson's charge to misdemeanor aggravated child molestation, ordered that his name not be placed on the sex-offender registry, and resentenced him to 12 months and with credit for time served. Stated Judge Thomas Wilson (no relation), "The fact that Genarlow Wilson has spent two years in prison for what is now classified as a misdemeanor, and without assistance from this Court, will spend eight more years in prison, is a grave miscarriage of justice."<ref>[http://www.myfoxatlanta.com/myfox/pages/News/Detail?contentId=3458253&version=5&locale=EN-US&layoutCode=TSTY&pageId=3.2.1 Judge Rules for Genarlow Wilson in Teen Sex Case]{{Webarchive|url=https://web.archive.org/web/20070614204641/http://www.myfoxatlanta.com/myfox/pages/News/Detail?contentId=3458253&version=5&locale=EN-US&layoutCode=TSTY&pageId=3.2.1|date=June 14, 2007}}</ref>

Georgia's [[Attorney General of Georgia|Attorney General]] [[Thurbert Baker]], an African American, has appealed Judge Wilson's decision, staying Genarlow Wilson's release. Baker maintains the judge did not have the authority to overturn the conviction and says there is a [[plea bargain]] offer on the table.<ref>Read Georgia Attorney General Thurbert Baker's Open Letter regarding the Genarlow Wilson Case: herehttp://www.state.ga.us/ago/pdfs/TEB_Letter_for_Website.pdf {{Webarchive|url=https://web.archive.org/web/20070709205052/http://www.state.ga.us/ago/pdfs/TEB_Letter_for_Website.pdf |date=July 9, 2007 }}</ref>

According to Baker, the plea deal could allow Genarlow Wilson to be eligible for First Offender Treatment, which would mean that he would not have a criminal record nor would he be subject to registering on the sex offender registry once his sentence had been completed. It could also result in Genarlow Wilson receiving a reduced sentence, possibly leading to his release based upon time already served. Genarlow Wilson's lawyer, B.J. Bernstein, would not accept the proposed deal because it would require her client to plead guilty to a felony with a fifteen -year sentence;, thus Genarlow would beforcing forcedhim to register as a sexual offender for up to fifteen years.<ref>[http://www.cnn.com/2007/US/06/11/teen.sex.case/index.html Last minute appeal in teen sex case sparks outrage] {{Webarchive|url=https://web.archive.org/web/20230610141959/https://edition.cnn.com/2007/US/06/11/teen.sex.case/index.html|date=June 10, 2023}}</ref>

====Bond hearing====

Following the grant of ''habeas'' and Baker's appeal, Bernstein urged prosecutors to allow her client to be set free on [[bail|bond]] until thehis appeal could be heard. [[Whitney Tilson]], a [[New York City]] investmenthedge fund manager and philanthropist, and others offered to finance a million dollar bond on Wilson's behalf,.<ref butname=free>[https://abcnews.go.com/TheLaw/story?id=3316592&page=1 Assistant"Free DistrictGenarlow AttorneyWilson: McDadethe noted$1 thatMillion Wilson'sMan crime,Speaks aggravated childto molestationABC"], prevented''ABC himNews'', fromJune being26, released on bond2007.</ref><ref>Brenda DouglasGoodman County(June Superior26, Court Judge David Emerson agreed with McDade and canceled a schedule bond hearing2007). Bernstein has announced that she will file an appeal. <ref>[httphttps://www.maconnytimes.com/1492007/story06/26/us/7641126brfs-teen.html?searchResultPosition=12 Judge"Georgia: saysSupporters noOffer bondBond for Genarlow Wilson, cancels hearingPrisoner"], by''The ShannonNew McCaffrey,York Associated Press, June 27, 2006Times''.</ref>

However, District Attorney McDade said that Wilson's crime, aggravated child molestation, was one that did not allow Wilson to be released on bond. Douglas County Superior Court Judge David Emerson agreed with McDade, and canceled a scheduled bond hearing. Bernstein announced that she would file an appeal.<ref>[http://www.macon.com/149/story/76411.html Judge says no bond for Genarlow Wilson, cancels hearing] {{webarchive|url=https://web.archive.org/web/20070629130002/http://www.macon.com/149/story/76411.html |date=June 29, 2007 }}, by Shannon McCaffrey, Associated Press, June 27, 2006</ref>

====Georgia Supreme Court appeal hearing====

On July 9, 2007, the [[Supreme Court of Georgia (U.S. state)|Georgia State Supreme Court]] set a hearing for Genarlow Wilson's appeal for July 20, 2007, more than two months earlier than previously scheduled. The first motion was an appeal by the State Attorney General Baker of the Monroe County Superior Court judge's decision to reduce Wilson's felony conviction to a misdemeanor and release him. The second motion was brought by Wilson's attorneys to have him released on bond while the appeals are heard which the Douglas County Superior Court judge denied.<ref>{{cite web

At about 2:15pm EST on July 9, 2007, it was reported on [http://www.waok.com WAOK Atlanta, 1380AM] by talk show host Shelley Wynter that the [http://www.gasupreme.us/ Georgia State Supreme Court] had apparently agreed to hear Genarlow Wilson's appeal. This report was later confirmed at 2:31pm EST during a WAOK news report where it was stated that the Georgia State Supreme Court will hear Wilson's appeal on July 20, 2007, apparently a few months earlier than scheduled.

|date=July 9, 2007

|author= Redmon, Jeremy

|url= https://www.ajc.com/metro/content/metro/stories/2007/07/09/wilson0710.html

|title= State Supreme Court moves up Genarlow Wilson hearing

|publisher= [[Atlanta Journal-Constitution]]

|accessdate=July 9, 2007

|archiveurl=https://web.archive.org/web/20070713214106/https://www.ajc.com/metro/content/metro/stories/2007/07/09/wilson0710.html

|archive-date= July 13, 2007}}</ref>

====Wilson's release====

According to latest reports, the State Supreme Court voted on Monday, July 9, 2007 to expedite both cases involving Genarlow Wilson. The Court appartnely set a hearing for 10:00 a.m. July 20 to hear oral arguments in the case on two motions, with the first being a direct appeal by the state of the ruling to release him, and the second by Wilson's attorneys to have him released on bond while the appeals are heard.

On October 26, 2007, the [[Supreme Court of Georgia (U.S. state)|Georgia State Supreme Court]] ruled 4–3 that Wilson's sentence was cruel and unusual, and ordered him released.<ref>[[Supreme Court of Georgia (U.S. state)|Supreme Court of Georgia]], [http://caselaw.lp.findlaw.com/data2/georgiastatecases/sc/2007/s07a1481.pdf ''Humphrey v. Wilson'' (S07A1481) and ''Wilson v. The State'' (S07A1606), 282 Ga. 520 (October 26, 2007)]</ref><ref>{{cite web

|date = October 26, 2007

|url = http://www.cbs46.com/news/14429718/detail.html

|title = Supreme Court Orders Genarlow Wilson's Release

|publisher = [[WANF|WGCL-TV]]

|accessdate = October 26, 2007

|url-status = dead

|archiveurl = https://web.archive.org/web/20071028060736/http://www.cbs46.com/news/14429718/detail.html

|archivedate = October 28, 2007

|df = mdy-all

}}</ref> He was released from prison in the late afternoon that day.<ref name="CNNrelease">{{cite web

|date=October 26, 2007

|author= Mary Lynn Ryan

|url= http://www.cnn.com/2007/US/law/10/26/wilson.freed/index.html

|title= Wilson released after two years behind bars for teen sex conviction

|publisher= [[CNN]]

|accessdate=October 26, 2007

|archiveurl=https://web.archive.org/web/20230325000406/http://www.cnn.com/2007/US/law/10/26/wilson.freed/index.html

|archive-date=March 25, 2023}}</ref> The majority opinion said that the changes in the law (which made oral sex between minors a misdemeanor instead of a felony) "represent a seismic shift in the legislature's view of the gravity of oral sex between two willing teenage participants" and "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. ... Although society has a significant interest in protecting children from premature sexual activity, we must acknowledge that Wilson's crime does not rise to the level of culpability of adults who prey on children and that, for the law to punish Wilson as it would an adult, with the extraordinarily harsh punishment of ten years in prison without the possibility of probation or parole, appears to be grossly disproportionate to his crime."<ref>{{cite web

|date = October 26, 2007

|url = http://www.insideradvantagegeorgia.com/restricted/2007/October%202007/10-26-07/Genarlow102619634.php

|title = Court Orders Genarlow Wilson Freed

|publisher = Inside Advantage Georgia

|accessdate = October 26, 2007

|archive-url = https://web.archive.org/web/20071028030853/http://www.insideradvantagegeorgia.com/restricted/2007/October%202007/10-26-07/Genarlow102619634.php

|archive-date = October 28, 2007

|url-status = dead

|df = mdy-all

}}</ref><ref>{{cite web

|date = October 26, 2007

|url = http://www.wsbtv.com/news/14429689/detail.html

|title = Supreme Court Orders Genarlow Wilson Released

|publisher = [[WSB-TV]]

|accessdate = October 26, 2007

|url-status = dead

|archiveurl = https://web.archive.org/web/20071028070117/http://www.wsbtv.com/news/14429689/detail.html

|archivedate = October 28, 2007

|df = mdy-all

}}</ref>

The dissenting opinion said that the legislators had explicitly made the law non-[[Ex post facto law|retroactive]] and, therefore, should not be applied to Wilson. The majority opinion claimed, however, that it did not apply the law retroactively but instead that the punishment was unconstitutionally [[Cruel and unusual punishment|cruel and unusual]].<ref name="CNN102607">{{cite web

|date=October 26, 2007

|url= http://edition.cnn.com/2007/US/law/10/26/wilson.freed/

|title= Teen-sex sentence 'cruel and unusual' punishment

|publisher= [[CNN]]

|accessdate=October 26, 2007

|archiveurl=https://web.archive.org/web/20220811023917/http://edition.cnn.com/2007/US/law/10/26/wilson.freed/

|archive-date=August 11, 2022}}</ref> The dissenters argued that the [[precedents]] the majority relied upon involved legislation with no prohibitions against retroactivity.<ref>{{cite web

|date = October 26, 2007

|author = Hansen, Jane

|url = http://www.insideradvantagegeorgia.com/PressGW.pdf

|title = SUPREME COURT RULES WILSON'S SENTENCE CRUEL AND UNUSUAL

|publisher = [[Supreme Court of Georgia (U.S. state)|Supreme Court of Georgia]]

|accessdate = October 26, 2007

|archive-url = https://web.archive.org/web/20090902102427/http://www.insideradvantagegeorgia.com/PressGW.pdf

|archive-date = September 2, 2009

|url-status = dead

|df = mdy-all

}}</ref>

Attorney General Baker said he would not appeal the ruling.<ref name="NYT102607">{{cite web

|date=October 26, 2007

|author= Goodman, Brenda

|url= https://www.nytimes.com/2007/10/26/us/26cnd-georgia.html?em&ex=1193544000&en=5338ce085ff64b09&ei=5087%0A

|title= Georgia Court Orders Man Freed in Sex Case

|work=New York Times

|accessdate=October 26, 2007

|archiveurl=https://web.archive.org/web/20181119045719/https://www.nytimes.com/2007/10/26/us/26cnd-georgia.html?em&ex=1193544000&en=5338ce085ff64b09&ei=5087%0A

|archive-date=November 19, 2018}}</ref>

==Reaction==

On [[December 21]], [[2006]], ''[[The New York Times]]'' published an editorial<ref name=NYT/> condemning the Georgia Supreme Court's decisionoriginal refusal to hear Wilson's appeal, noting that Wilson was not a sexual predator, and that his behavior ''would have only been a misdemeanor'' if he had actually had sex with the girl, instead of having had oral sex (due to a loophole in the applicable law's provision intended to prevent exactly this kind of dubious conviction). Oral sex has long had a special criminal status in Georgia law; until 1998, oral sex even between husband and wife was punishable with up to 20 years in prison.<ref name=ABC>''[http://abcnews.go.com/Primetime/LegalCenter/story?id=1693362&page=1 Outrage After Teen Gets 10 Years for Oral Sex With Girl]'' - ABC News, 7 February 2006</ref>

Oral sex has long had a special criminal status in Georgia law; until 1998, oral sex even between husband and wife was punishable with up to 20 years in prison.<ref name=ABC>''[https://abcnews.go.com/Primetime/LegalCenter/story?id=1693362&page=1 Outrage After Teen Gets 10 Years for Oral Sex With Girl]'' – ABC News, February 7, 2006 {{Webarchive|url=https://web.archive.org/web/20230609062043/https://abcnews.go.com/Primetime/LegalCenter/story?id=1693362&page=1|date=June 9, 2023}}</ref> The United States Supreme Court, in 1986, originally upheld Georgia's anti-sodomy law (which covered both oral sex and anal sex) as constitutional even when applied to criminalize two consenting adults in the privacy of their bedroom (''[[Bowers v. Hardwick]]'', [[Case citation|478 U.S. 176]]). Twelve years later, Georgia's Supreme Court would, however, find that the same law upheld by the U.S. Supreme Court was unconstitutional on state constitutional grounds, at least as applied to oral sex with persons over the age of consent (''[[Powell v. Georgia]]'', [[Case citation|S98A0755, 270 Ga. 327, 510 S.E. 2d 18]] (1998)).

On April 30, 2007, ''The New York Times'' published another editorial noting that Georgia's legislature has closed the loophole in the law and that if Wilson were tried today he would now be facing only misdemeanor charges for the same act. However, the State Senate adjourned for the year without taking up a bill allowing judges to review previous cases like Wilson's and Wilson continues to serve a mandatory 10-year sentence. The ''Times'' also noted that Wilson's attorneys have applied for a writ of ''habeas corpus'' with the U.S. Supreme Court and it urged the Court to grant it. In the same editorial, the ''Times'' lambasted prosecuting district attorney David McDade for continuing to publicly charge that Wilson participated in gang-raping a 17-year-old, even though he was acquitted of charges in that case.<ref>"[http://www.nytimes.com/2007/04/30/opinion/30mon3.html Georgia’s Shame]" - ''[[The New York Times]]'', Monday [[30 April]], [[2007]] "Every day that young Genarlow Wilson remains in prison for consensual sexual activity is a further indictment against the prosecutors, lawmakers and judges of the Georgia legal system. Lawyers for Mr. Wilson have applied for a writ of habeas corpus to challenge his cruel and unusual 10-year sentence. The Superior Court should grant it."</ref>

On April 30, 2007, ''The New York Times'' published another editorial noting that Georgia's legislature had closed the loophole in the law and that if Wilson were tried today he would now be facing only misdemeanor charges for the same act. However, the State Senate adjourned for the year without taking up a bill allowing judges to review previous cases like Wilson's and Wilson continued to serve a mandatory 10-year sentence. The ''Times'' also noted that Wilson's attorneys had applied for a writ of ''habeas corpus'' with the U.S. Supreme Court and it urged the Court to grant it. In the same editorial, the ''Times'' lambasted prosecuting district attorney David McDade for continuing to publicly charge that Wilson participated in gang-raping a different 17-year-old girl, even though he was acquitted of charges in that case.<ref>"[https://www.nytimes.com/2007/04/30/opinion/30mon3.html Georgia’s Shame]" – ''[[The New York Times]]'', Monday April 30, 2007 "Every day that young Genarlow Wilson remains in prison for consensual sexual activity is a further indictment against the prosecutors, lawmakers and judges of the Georgia legal system. Lawyers for Mr. Wilson have applied for a writ of habeas corpus to challenge his cruel and unusual 10-year sentence. The Superior Court should grant it."{{Webarchive|url=https://web.archive.org/web/20130622194555/https://www.nytimes.com/2007/04/30/opinion/30mon3.html|date=June 22, 2013}}</ref>

On May 24, 2007 former US president [[Jimmy Carter]] wrote a letter to state attorney-general [[Thurbert Baker]] in which he questioned whether Wilson's race had played a role in his treatment. He wrote: "The racial dimension of the case is likewise hard to ignore and perhaps unfortunately has had an impact on the final outcome of the case," pointing out that white defendants have received lesser punishments for similar conduct. <ref>[http://www.ledger-enquirer.com/251/story/53150.html Judge to rule Monday in Ga. teen sex case] ''[[Columbus Ledger-Enquirer|Ledger-Enquirer]]'', 6 June 2007</ref>

On May 24, 2007, former US president [[Jimmy Carter]] wrote a letter to state attorney-general [[Thurbert Baker]] (who, like Wilson, is African-American) in which he questioned whether Wilson's race had played a role in his treatment. He wrote: "The racial dimension of the case is likewise hard to ignore and perhaps unfortunately has had an impact on the final outcome of the case," pointing out that white defendants have received lesser punishments for similar conduct.<ref>[http://www.ledger-enquirer.com/251/story/53150.html Judge to rule Monday in Ga. teen sex case]{{dead link|date=September 2017 |bot=InternetArchiveBot |fix-attempted=yes }} ''[[Columbus Ledger-Enquirer|Ledger-Enquirer]]'', June 6, 2007</ref>

Following the June ruling in Monroe County, both Attorney General Baker and Georgia [[Governor]] [[Sonny Perdue]] expressed concern that other convicted child molesters might attempt similar legal tactics to get out of prison. While Baker called the Wilson sentence "harsh", he also noted that he had taken an oath to uphold state law. <ref>[http://www.ajc.com/metro/content/metro/stories/2007/06/14/0614wilson.html?imw=Y Baker defends Wilson appeal] - by Jeremy Redmon and James Salzer, ''The Atlanta Journal-Constitution'', June 15, 2007</ref>

Following the June ruling in Monroe County, both Attorney General Baker and Georgia Governor [[Sonny Perdue]] expressed concern that other convicted child molesters might attempt similar legal tactics to get out of prison. While Baker called the Wilson sentence "harsh", he also noted that he had taken an oath to uphold state law.<ref>[http://www.ajc.com/metro/content/metro/stories/2007/06/14/0614wilson.html?imw=Y Baker defends Wilson appeal] – by Jeremy Redmon and James Salzer, ''The Atlanta Journal-Constitution'', June 15, 2007 {{Webarchive|url=https://web.archive.org/web/20070930040900/http://www.ajc.com/metro/content/metro/stories/2007/06/14/0614wilson.html?imw=Y|date=September 30, 2007}}</ref>

Black leaders such as Rev. [[Joseph Lowery]] and the [[Congressional Black Caucus]] have criticized Baker's appeal of the Monroe County ruling. Meanwhile, Rev. [[Markel Hutchins]], a civil rights activist in Atlanta, has criticized them for not having all the facts and failing to stand up for the victims in the case. He also questioned the motivations of Wilson's attorney, Bernstein, and urged her to attempt to find a resolution in the case. <ref>[http://www.macon.com/220/story/67785.html Civil rights leader meets with DA, AG in Genarlow Wilson case] - by Shannon McCaffrey, [[Associated Press]], June 15, 2007</ref>

Black leaders such as Rev. [[Joseph Lowery]], Dr. [[Francys Johnson]], the Rev. Jesse Jackson and the [[Congressional Black Caucus]] have criticized Baker's appeal of the Monroe County ruling. Meanwhile, Rev. Markel Hutchins, a civil rights activist in Atlanta, has criticized them for not having all the facts and failing to stand up for the victims in the case. He also questioned the motivations of Wilson's attorney, Bernstein, and urged her to attempt to find a resolution in the case.<ref>[http://www.macon.com/220/story/67785.html Civil rights leader meets with DA, AG in Genarlow Wilson case]{{dead link|date=September 2017 |bot=InternetArchiveBot |fix-attempted=yes }} – by Shannon McCaffrey, [[Associated Press]], June 15, 2007</ref>

On Genarlow's behalf, the NAACP, led by Dr. [[Francys Johnson]], also marched on Douglas County, Georgia, for the injustice done. There were many participants there, including the girl's mother who stated that she forgave Genarlow and was in favor of his release. The speakers targeted Douglas County judicial system and particularly David McDade for his unfair treatment.{{Citation needed|date=December 2012}}

==See also==

* [[Marcus Dixon]]

* [[Child sexual abuse]]

==References==

{{reflist|2colwidth=30em}}

==External links==

* [http://www.wilsonappealmy5th.com/index.phporg Wilson AppealMy5th.org] (Genarlow Wilson's legalcriminal defense fundlawyer's websiteblog) {{Webarchive|url=https://web.archive.org/web/20110211114009/http://www.my5th.org/|date=February 11, 2011}}

* [http://www.espn.com/espn/eticket/story?page=wilson&redirected=true Outrageous Injustice] (ESPN article covering the case in detail) [http://www.espn.com/espn/eticket/story?page=wilson&redirected=true]

*[http://www.my5th.org My5th.org] (Genarlow Wilson's criminal defense lawyer's blog)

* [http://www.crossroadsnews.com/articles/2008/10/22/youth/01_genarlow.txt One year later, Genarlow Wilson focused on being asset to community]{{Dead link|date=September 2018 |bot=InternetArchiveBot |fix-attempted=yes }} by Tambria Peeples, CrossRoadsNews, October 23, 2008.

*[http://sports.espn.go.com/espn/eticket/story?page=wilson Outrageous Injustice] (ESPN article covering the case in detail)

*[http://search2.foxnews.com/search?access=p&getfields=*&sort=date%3AD%3AS%3Ad1&output=xml_no_dtd&ie=UTF-8&client=my_frontend&filter=0&site=video&proxystylesheet=my_frontend&q=Genarlow O'Reilly Factor] (video of show faceoff between Wilson's lawyer and other expert)

[[Category:Sex2007 crimesin Georgia (U.S. state)]]

[[Category:2007 in United States case law]]

[[Category:Fellatio]]

[[Category:Georgia (U.S. state) case law]]

[[Category:Juvenile case law in the United States]]

[[Category:Sex crimes in the United States]]

[[no:Genarlow Wilson]]

[[Category:U.S. state criminal case law]]

[[Category:Monroe County, Georgia]]

[[Category:History of women in Georgia (U.S. state)]]