Monday, October 29, 2007
For Genarlow Wilson, like Browning's Pippa: "God's in His Heaven - All's Right With the World!"
At 5:30 p.m. on October the 26th, Genarlow Wilson said goodbye to the Al Burruss Correctional Training Facility in Forsythe, GA. This medium-security prison had been his home for the past two years and eight months while his lawyer battled with our “justice system” over an obscure, Georgia law that mandated his felony conviction on aggravated child molestation charges and sentenced him to 10 years in prison with no parole AND a place on the Georgia sex-offender registry. Having experienced the disproportionate justice meted out to those of a decidedly darker hue for the first time in his life, this young Black man was released into the waiting arms of his mother, his 9-year-old sister and his attorney - the three females whose support never wavered during this whole ordeal. Genarlow Wilson, the son of a single Black mother (and yes, I DID need to put that in boldface given the ignominious, accusatory rantings of the assimilated Mr. Cosby and company), had been a high school senior whose future seemed so bright he had to wear shades. He was an honor student and an all-conference football player and track star with offers to play in college. He was so popular he’d been elected the first-ever homecoming king at Douglas County High School. And most importantly for the purposes of this post, he had NO criminal history. Yes, the future looked exceedingly bright in Genarlow’s world. But a New Year’s Eve party involving alcohol and marijuana, a what-the-hell-were-you-thinking video, oral sex from a willing-but-unable-to-legally-consent-because-she-was-a-15-year-old girl “friend with benefits” and an accusation of rape by another 17 year-old girl “friend with benefits” who went to the police all converged turning his world upside down. In February of 2005, Genarlow’s world became a Douglas County prison cell and his dreams were undoubtedly replaced with the worst nightmares he’d ever had. But finally, the scales of justice tilted in his favor. His salvation came, borne on the words of a 4-3 decision by the Georgia Supreme Court. The majority had upheld a Monroe County judge's initial ruling that Genarlow’s sentence constituted cruel and unusual punishment under both the Georgia and U.S. constitutions. They said the sentence appeared to be "grossly disproportionate" to the crime and noted that it was out of step with current law. Really!??! Let’s go back for a minute and look at the “current law” and how it came to be. When the Child Protection Act of 1995 cleared the legislature, Section 3 - Para. 2 (dealing with statutory rape) included a “Romeo and Juliet” exception for teenagers who engaged in consensual sexual intercourse. According to the exception, if the victim is 14 or 15 years of age and the person convicted is no more than three years older, the convicted person may, at the discretion of the court, be charged with a misdemeanor. Under Georgia law, any person adjudicated guilty of a misdemeanor for the first time, who was on the date that the misdemeanor was committed between the ages of 16 and 18 years old, shall be punished by a fine not to exceed $1,000.00 or confined exclusively under the jurisdiction of the Board of Corrections for a period not to exceed 12 months. But the “Romeo and Juliet” exception could not protect Genarlow as it was written because what he was doing with the minor according to the law, was not sex. No really! At first, I was thinking, “Did they say it wasn’t sex because there was no vaginal penetration (so Bill Clinton-esque!), or because adults, in their paternalistic, myopic mentality, never considered teens would be engaging in (heaven forbid!) oral sex? Hadn’t any of them ever heard of the jelly bracelets? I kept reading the law, looking for the aggravated child molestation charge under which he was convicted for some clarity and this is what it said: Section 4 – Para. 2 of the law says: “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” It says further, “A person convicted of the offense of aggravated child molestation shall be punished by imprisonment for not less than ten, nor more than 30 years and in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7. Since Genarlow had by no means physically injured the minor, the only other basis for the charge was the act of sodomy. Now I consider myself fairly educated and to me, sodomy’s only ever meant one thing. So, I looked it up. Merriam-Webster defines it as follows: Sodomy, Function: Noun, Etymology: Middle English, from Anglo-French sodomie, from Late Latin Sodoma Sodom; from the homosexual proclivities of the men of the city in Genesis 19:1–11, Date: 13th century : anal or oral copulation with a member of the same or opposite sex; also : copulation with an animal. (Now correct me if I'm wrong, but isn't copulation - SEX??!!) Anyway, by charging him under this section, they killed two birds with one stone. They got to charge him in adult court (in Georgia, 17 is the age of majority for adult criminal court) with a felony AND the conviction got them the punishment they thought he deserved - a larger mandatory-minimum (an unconscionable concept in my book) prison sentence with no parole, along with the future-killing requirement that one must register as a sex offender for the rest of one's life!! In 2006, the law was amended in response to Genarlow’s case to include consensual oral sex in the “Romeo and Juliet” exception, but the legislature didn’t make it retroactive even though that very amendment gave them the opportunity to totally fix what they’d initially screwed up! Definitely one of those “things that make you go, h-m-m-m-m!” But I digress. The majority opinion referred to the law as it stands now even though it wasn’t retroactive - a point Justice George Carley drove home in writing the dissent for the gang of three who held that, ““The 2006 change in the law was specifically written so it would not be retroactive.” Why specifically and how did he know that? Continuing he said, "The General Assembly made the express decision that he cannot benefit from the subsequent legislative determination to reduce the sentence for commission of that crime from felony to misdemeanor status." Then, in what can only be described as an attitude of omnipotence, he said that the majority opinion showed "unprecedented disregard" for the legislative intent of the law change and creates the potential for releases of "any and all defendants who were ever convicted of aggravated child molestation and sentenced" under circumstances similar to Wilson's. What??!! That just makes no damn sense at all! Who should know what the legislative intent was, better than those pesky “law-makers” actually involved in the passing of the initial law? After all, according to my Civics classes long ago (Do they still teach Civics?), that is their job no matter how badly they screw it up! As a matter of fact, Rep. Tyrone Brooks, a Democrat in the Georgia State Assembly who helped pass the initial molestation law, said it was never meant to police teen sex. He said, "The legislative intent was to protect women and children from sexual predators." And former Republican state representative-turned-political analyst, Matt Towery, author of the 1995 legislation that would make oral sex a felony said it was never his intention for teenagers like Wilson to be prosecuted under the law. In an interview with the Atlanta Journal Constitution, Towery said, “It was a weight on me…It was something that prosecutors from the beginning understood that was not to be applied in this manner." (H-m-m-m, anyone?) But wait, now that I really think about it, the minority opinion makes perfect sense in this dominant-culture driven, patriarchal society! The law-enforcing gang of three along with Georgia's top, Black elected official, Attorney General Thurbert Baker (a whole ‘nother post), are as transparent as they are stupid. Transparent - because their fear of treating both the federal and state constituitions as living, breathing documents is pungent and pervasive. No law-maker or law-enforcer is omnipotent or infallible. That’s why there are amendments and provisions for reversible error. Stupid - because their strict interpretation, in support of this malicious prosecution, makes us worse rather than better as a country. In June of this year, after overturning Genarlow’s felony conviction and reducing it to a misdemeanor, with a 12-month term plus credit for time served and no requirement to register as a sex offender, Monroe County Superior Court Judge Thomas Wilson (no relation to Genarlow) said this: “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 spent eight more years in prison, is a grave miscarriage of justice. If this court or any court cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish…justice being served in a fair and equal manner.” It seems he recognized the malicious prosecution leading to the injustice visited upon Genarlow Wilson and was not afraid to admit it. Genarlow is finally free, though I doubt he will ever be the same again. And that may not be a bad thing. Why? Because now, he can definitely be the “canary in the mine” for a multitude of other Black men who, for whatever reason, have no idea of the consequences they could face from their sexual forays with the willing. Because the state of Georgia only allows a person to have their records sealed or expunged if the records were non-criminal records where no charges were filed, there will be collateral consequences of his misdemeanor conviction. But that need not hinder him. As a matter of fact, given how he stuck to his guns and stood up for himself against all odds, I have a sneaking suspicion we will hear great things from this young man in a very BIG way - very soon. And so, it is with OUR sons, brothers, fathers, grandfathers, uncles, nephews and friends in mind who are disproportionately affected by these collateral consequences, I offer an August 2007 Sentencing Project publication written by Margaret Colgate Love entitled, “Relief from the Collateral Consequences of a Criminal Conviction: A State-By-State Resource Guide.” This compilation of documents regarding the law in individual states regarding loss of rights due to a felony conviction, process of restoration, pardon/expungement information (for felonies and misdemeanors) and contact information of corresponding agencies provides a wealth of necessary information. Go to the site, read it, print it and share it. Let’s arm ourselves with the only thing that will prevent another Genarlow Wilson case from ever happening again - knowledge.