Legal News Review Blog

A Calamity of Justice The Genarlow Wilson Case

Is it possible for a 17-year-old to go to jail for a decade for having consensual oral sex with a 15-year-old? In the state of Georgia—before they modified the law—the answer was yes. Every once in a while a case comes along that shocks the conscious of most good-natured people, this case I assure you is one of them.

Genarlow Wilson was a high school senior and age 17 at the time of his alleged criminal offense. He received a 10-year prison sentence because at age 17 he engaged in a voluntary act of oral sex with a 15-year-old female classmate. No violence or assault was asserted or raised in any of the police reports or at trial as to the 15 year old. His conviction for aggravated child molestation was based solely on the fact that the female was 15, which is below Georgia’s legal age of consent of 16. However, the sex act in lay terms was “consensual” – that is, agreed to by both teens.

Genarlow Wilson has already served approximately thirty months in prison for this crime. What shocks the conscious here is that had they engaged in sexual intercourse, Mr. Wilson would have only served a maximum term of 12 months and would not be required to register as a lifetime sex offender. How is this possible you might ask? In Georgia—before they modified the law—When a 17-year-old male has intercourse with a 15-year-old female, statutory rape sets the maximum punishment at 12 months for a misdemeanor conviction with no sex offender registration. When that same 17-year-old male receives oral sex from a 15-year-old female, that teen is supposedly guilty of aggravated child molestation which dictates a mandatory 10 years in prison and lifetime sex offender registry. This, unfortunately for Mr. Wilson and the entire judicial system, is a case of an old outdated Georgia Law being steadfastly upheld by what must be an over zealous Assistant District Attorney, more specifically James E. Barker, who lacks the common prosecutorial discretion of most good district attorneys.

The archaic Georgia law that Mr. Wilson has been convicted of violating has been subsequently re-written. The law now more accurately represents what most states have in terms of the age of sexual consent and child molestation laws. The new law now reads that a person is convicted of the offense of aggravated child molestation when: (A) The victim is at least 13 but less than 16 years of age; (B) The person convicted of aggravated child molestation is 18 years of age or younger and is no more than four years older than the victim. This legislature similarly amended the code sections for child molestation and Enticing a Child for Indecent Purposes to grant misdemeanor status without sex offender registration for sexual acts when the victim is at least 14 but less than 16 years of age and the person convicted is 18 years of age or younger and is no more than four years older than the victim. The legislature also amended the statutory rape provision to reflect the same 4-year differential in age between teens to grant misdemeanor status without sex offender registration for acts of intercourse. I presume that the Georgia legislature made the changes in the law in light of this case. What they failed to do, however, was make these laws retroactive. Had they made the laws retroactive, Mr. Wilson would be a free man today. I assume that the Legislature could not stomach the release of what probably amounts to hundreds or maybe even thousands of individuals incarcerated who might qualify under the retroaction.

Either my classification of Mr. Barker is accurate or something else is afoot in this case. In the interest of impartiality, I offer one possible scenario. They only other possible reason that I can think of as to why Mr. Barker is holding steadfast on this conviction is that some other evidence must have been excluded from trial that brings to light the commission of a more serious crime by Mr. Wilson. If the district attorney lacks the evidence to prosecute on that crime he may feel as if the punishment is warranted for what actually took place despite the seemingly harmless nature of two young teenagers engaging in oral sex. I am not sure on this, but it is the only possible scenario that I can think of other than the prosecutor’s total disregard for discretion. If this is the case, the district attorney would still be in the wrong because he would in a sense be circumventing the judicial system by not having Mr. Wilson tried on the merits of the evidence for that more serious crime.

In conclusion, I think this case brings to light some of the troublesome issues that exist in the criminal justice system of America. Once upon a time Genarlow Wilson was a high school football star with a bright future, one consensual blow-job later by a teenager two years younger and now he is a prisoner of the state for what looks to be another seven years on top of the three already served. I don’t know if anyone is going to step up and rectify this injustice. I can only hope that those in the government with the power of pardon will see this as a calamity of justice and work to release Mr. Wilson. Everyday that Mr. Wilson sits in prison is another black mark on the criminal justice system of the United States of America.

This article was written by Philadelphia Personal Injury Lawyer Douglas Whalen, he maintains a current legal news review blog at www.legalnewsreview.com and a family law blog at Philadelphia Divorce Lawyer.

Cocaine for President Bush OK

This post will review the case of Guiles v. Marineau, 461 F.3d 320 (2^nd Cir 2006) cert denied June 29, 2007, another student freedom of speech case.  The United States Court of Appeals for the Second Circuit held that a school could not censor a student’s t-shirt where the shirt, at the top, has large print that reads "George W. Bush," below it is the text, "Chicken-Hawk-In-Chief." Directly below these words is a large picture of the President's face, wearing a helmet, superimposed on the body of a chicken. Surrounding the President are images of oilrigs and dollar symbols. To one side of the President, three lines of cocaine and a razor blade appear. In the "chicken wing" of the President nearest the cocaine, there is a straw. In the other "wing" the President is holding a martini glass with an olive in it. Directly below all these depictions is printed, "1st Chicken Hawk Wing," and below that is text reading "World Domination Tour."

The back of the T-shirt has similar pictures and language, including the lines of cocaine and the martini glass. The representations on the back of the shirt are surrounded by smaller print accusing the President of being a "Crook," "Cocaine Addict," "AWOL, Draft Dodger," and "Lying[**] Drunk Driver." The sleeves of the shirt each depict a military patch, one with a man drinking from a bottle, and the other with a chicken flanked by a bottle and three lines of cocaine with a razor. Without question Guiles's T-shirt uses harsh rhetoric and imagery to express disagreement with the President's policies and to impugn his character.

On June 29, 2007, The United States Supreme Court refused to review this case, although Justice Samuel Alito cautioned that schools could not censor political speech.  This is significant in and of itself because it means that the Supreme Court does not want to shape the current status of the law in this area at the moment or they believe that it is significantly and sufficiently developed and this case offers no new opportunity to clarify the law.  It could also mean that they just don’t feel like dealing with this issue at the moment because others are more deserving of their attention.

Why can a student where a t-shirt of this nature at school, but a student cannot hold up a banner that read “Bong Hits 4 Jesus?” See, Morse, et al. v. Frederick, or my last post “No Bong Hits 4 Jesus.”  The difference between the two is simple and it all comes down to content; what was being said.  When we look at the content “Bong Hits 4 Jesus” it appears to be empty of any political speech.  Political Speech is among the most highly protected types of speech.  The t-shirt in question is a profound statement of political speech.  Where the “Bong Hits 4 Jesus” banner could have been construed as promoting drug use, the t-shirt in question is designed to highlight some of the Presidents alleged dabbling in drugs and alcohol and highlights the student’s disgust with the current President and his character.  This is a political statement and the United States Court of Appeals for the Second Circuit overturned the lower court in line with centuries old case precedent protecting political speech.

The United States Court of Appeals for the Second Circuit denied the Defendant’s argument that all illustrations of drugs promote drug use and are disruptive.  The court reasoned that the Defendant could not overcome the argument that anti drug campaigns containing such images promote the use of drugs or were otherwise disruptive.  The court ultimately directed the lower court to issue an injunction prohibiting the school from censoring the t-shirt or not allowing the student to where it.  The court also held that the student’s suspension should remain removed from the student’s record.  The disparity in the two cases comes down to the content of what was being said.  It is further evidence that political speech in school will remain intact, while otherwise senseless and random images or promotion of illegal drug use will remained banned from the schoolhouse.      

This article was written by Philadelphia Personal Injury Lawyer Douglas Whalen.

No Bong Hits for Jesus

The slippery slope of student rights to free speech just got a little more slippery.  On Monday, June 25, 2007, the United States Supreme Court overturned a decision of the Ninth Circuit Court of Appeals, holding that a principal did not violate a student's First Amendment Constitutional Rights by forcing him to take down a banner reading "Bong Hits 4 Jesus" at a school sponsored event.  See the case Morse, et al. v. Frederick. 

Freedom of Speech is one of the most fundamental and important rights given to the citizens of a free society.  Some societies restrict speech in an effort to consolidate power and to limit the free flow of ideas amongst their citizens, for example, Iran recently banned journalists from publishing any negative news on the administrations fuel-rationing program.  Am extreme example, North Korea, has deliberately withheld from its own people every significant, internationally guaranteed right, including freedom of speech.  Televisions and radios are built or adapted to allow for only government frequencies, and outside signals are blocked. Any seemingly innocuous actions such as whistling a South Korean pop song, refusing or forgetting to wear special pins with Kim Jong–Il or Kim Il–Sung, or expressing even minor grievances against the government, are considered political treason.

In the United States, certain types of speech are given more protection than others, for example, political speech and religious speech are afforded more protection than other types of speech. A banner reading "stop Bush from destroying the constitution" would be afforded greater protection than a banner reading "Bong Hits 4 Jesus."  On the contrary, there are certain types of speech that receive little or no protection.  Speech that incites violent or illegal activity is among that type.   

When we look at the facts of this case we have to ask ourselves what was being said, how was it being said and where was it being said.

What was being said?  “Bong Hits 4 Jesus” the content of this speech is not political in nature and although it mentions Jesus, it does not seem to be any real religious statement.  That being said, this speech did not fall into one of those categories that are offered very high levels of protection.  What is being said here seems to have some drug use connotations and can even be construed as promoting drug use.  The Supreme Court found that the speech in question actually promoted drug use and therefore would be placed in a category of little or no protection.   

How was it being said?  The speech was written on a banner, which is a neutral way of communicating speech.  How the speech was being communicated may have been more of an issue had the student stripped naked and wrote “Bong Hits 4 Jesus” on his buttocks. 

Where was it being said?  The banner was unraveled at a school-sponsored event on a public sidewalk in front of the school.  The Supreme Court has historically held that student speech at school can be limited, see the cases Bethel School District v. Fraser, 478 U.S. 675 (1968) and Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988).  The Court held that the speech in question was “school speech” because it was held at a school-sponsored event.  The Supreme Court’s decision in this case seemingly expands student speech restrictions to locations outside the schoolhouse gates. 

In conclusion, the United States Supreme Court refused to expand student speech rights in this case because the speech in question was not of the type that is highly protected, but to the contrary, it is speech tending to promote illegal activity.  The opinion emphasized the government's "important--indeed, perhaps compelling interest" in deterring drug use by students.  The opinion concluded that the principal's actions were motivated by a "serious and palpable" danger of drug abuse.

This article was written by Philadelphia Personal Injury Lawyer, Douglas Whalen, he maintains a current legal news review blog at http://www.legalnewsreview.com and a website at http://www.myphiladelphiapersonalinjurylawyer.com/