Category Archives: Sex

Utah Supreme Court Resists Creating Another Genarlow Wilson

Via Eugene Volokh, comes news of a decision from the Utah Supreme Court regarding the state’s attempted prosecuted of a 12 year old boy and thirteen year old girl for committing sexual abuse on a child, with each other:

When she was thirteen years old, Z.C. engaged in consensual sex with a twelve-year-old boy and became pregnant. The state prosecutor chose to file delinquency petitions against both Z.C. and the boy for sexual abuse of a child under [State] Code section 76-5-404.1 [basically, in this context, any sexual touching of someone under 14 -EV], a crime that would constitute a second degree felony if committed by an adult….

Because we conclude that the legislature could not possibly have intended to punish both children under the child sex abuse statute for the same act of consensual heavy petting, we hold that applying the plain language of the statute in this case produces an absurd result. [Footnote, slightly moved: It is undisputed that Z.C. and the boy engaged in more than just sexual touching, but we must analyze the absurd result question in the context of the law actually applied and the act with which the State chose to charge Z.C., not the law that might have been applied or the act with which the State could have charged Z.C.]

Sexual abuse of a child is one of the most heinous crimes recognized by our penal code. The gravity of this crime is reflected by the fact that it is punished as a second degree felony if committed by an adult. Child sex abuse merits serious penalties because of the extreme psychological harm that the perpetrator causes the victim. Therefore, like all forms of sexual assault, child sex abuse presupposes that a single act of abuse involves a victim, whom the statute endeavors to protect, and a perpetrator, whom the statute punishes for harming the victim.

The State, however, applies [State] Code section 76-5-404.1 in an unprecedented manner. By filing delinquency petitions for child sex abuse against both participants for sexually touching one another, the State treats both children as perpetrators of the same act. In this situation, there is no discernible victim that the law seeks to protect, only culpable participants that the State seeks to punish. We know of no other instance in which the State has attempted to apply any sexual assault crime to produce such an effect.

[Footnote: The primary fail-safe against the absurd application of criminal law is the wise employment of prosecutorial discretion, a quality that is starkly absent in this case. While the State makes no attempt to defend the prosecution’s charging decision, it suggests that the particular offense selected by the prosecutor as the basis for the delinquency petition is not significant because a juvenile delinquency adjudication is not a criminal conviction, but merely a means to bring the juvenile within the guiding supervision of the juvenile court. If this is truly the case, it begs the question of why the prosecutor could not have accomplished the intended result by basing the delinquency petition on a victimless offense that more accurately fits the conduct at issue.]

We acknowledge that the legislature has demonstrated its intent to punish both participants in victimless, extramarital sexual activity under [State]’s adultery and fornication statutes. However, these statutes differ from sexual assault crimes, such as child sex abuse, in both the theory and degree of punishment. Rather than punishing an actor who has perpetrated a crime against a victim, these laws demonstrate the legislature’s disapproval of the acts of both participants for violating a moral standard. Because these crimes do not involve a victim, they involve a lesser degree of punishment. Both adultery and fornication are punishable as class B misdemeanors. Thus, while the legislature clearly could have intended some degree of simultaneous culpability for both Z.C. and the twelve-year-old boy under the fornication statute in order to discourage their admittedly reckless and age-inappropriate behavior, it is absurd to conclude that the legislature intended to simultaneously punish both children for child sex abuse, a crime that clearly envisions a perpetrator and a victim.

A review of the floor debates regarding the 1983 enactment of the [statute] reveals no evidence that the legislature contemplated application of the statute to situations where the same child was both victim and perpetrator. Although we generally do not consult legislative history where the meaning of the statute is clear, after finding that the plain meaning has been applied in an absurd manner, we seek to confirm that the absurd application was indeed unintended by the legislature….

We conclude that the legislature could not have intended the child sex abuse statute to be applied to punish Z.C. for the conduct at issue. And the fact that this is a juvenile court disposition, in which the judge enjoys considerable latitude in crafting punishments and assigning state services designed to help the child, does not change our conclusion. No amount of judicial lenity to compensate for the absurd application of the law changes the fact that the application of the law was absurd to begin with. Moreover, labeling Z.C. with the moniker of “child abuser,” even within the juvenile court system, can have serious consequences that were not intended by the legislature. A delinquency adjudication for sexual abuse of a child can lead to sentencing enhancements for any offenses Z.C. might commit while she is a juvenile or even as an adult if her juvenile record is not expunged. Such an adjudication also has the potential to affect any civil proceedings related to the custody of her child or any future attempts to seek child support from the father.

We therefore vacate Z.C.’s adjudication. We stress, however, that our holding is narrowly confined to the application of [State] Code section 76-5-404.1 in situations where no true victim or perpetrator can be identified. Even among children under the age of fourteen, there are unfortunately situations where an older or more physically mature child abuses a younger or smaller child. In cases where there is an identifiable distinction between the perpetrator and the victim, it is manifestly logical to conclude that the legislature intended to include such acts within the scope of [State] Code section 76-5-404.1. In Z.C.’s case, however, where both children were under the age of fourteen and were of similar age, where both children met the intent requirement of the statute, and where there was no evidence of any coercion or force, we conclude that application of the child sex abuse statute produces an absurd result….

Even though the plain language of section 76-5-404.1 allows Z.C. to be adjudicated delinquent for sexual abuse of a child, we conclude that the filing of delinquency petitions against both participants produces an absurd result not intended by the legislature because, like all sexual assault crimes, the statute presupposes a perpetrator and a victim. We therefore hold that the juvenile court erred in denying Z.C.’s motion to dismiss the delinquency petition. We remand this matter to the court of appeals with instructions to remand it to the juvenile court to vacate Z.C.’s delinquency adjudication.

In other words, no rational review of state laws against sex crimes against children should be held to apply to a case where both of the participants in the act are, in fact, children. If you feel that someone you know might be committing these crimes and want to perform a criminal background check checking out TruthFinder might have the answers you’re looking for, for an affordable price.

Approve of it, or disapprove of it, as you wish. But there’s no rational reason that something like this should be treated as a felony.

Genarlow Wilson Prosecutor Distributes Child Porn

ATLANTA (AP) — District Attorney David McDade has handed out some 35 copies of a video of teenagers having sex at a party.

McDade says Georgia’s open-records law leaves him no choice but to release the footage because it was evidence in one of the state’s most turbulent cases — that of Genarlow Wilson, a young man serving 10 years in prison for having oral sex with a girl when they were teenagers.
McDade’s actions have opened him up to accusations that he is vindictively misusing his authority to keep Wilson behind bars — and worse, distributing child pornography.


It shows Wilson, then 17, receiving oral sex from a 15-year-old girl and having intercourse with another 17-year-old girl. It was shot at a 2003 New Year’s Eve Party at a hotel room by another partygoer.
Earlier this week, Georgia’s chief federal prosecutor, U.S. Attorney David Nahmias, said the video “constitutes child pornography under federal law,” and he called on McDade’s office to stop releasing copies.

I hope McDade gets the book thrown at him on this one, they thrown the book at others for a lot less, they’ve even fired someone for simply visiting porn websites like sex free hd xxx during working hours on a government-owned pc, and this is a lot worse than that. Whatever crime Wilson committed is minor compared with the DA distributing the video to others who do not need to see it. He has probably put everyone who received the video in danger of facing child pornography possession charges. And what’s to stop one of these copies from somehow making its way to the general public via the internet or other means? It’s a little curious to me why the DA believes he needs to make his point in the court of public opinion instead of a court of law. He knows that the public is not on his side but he may win in the court of law (unfortunately).

But like Michael Nifong, David McDade will probably avoid criminal prosecution. Meanwhile, Genarlow Wilson serves a 10 year prison sentence for receiving consensual oral sex from a young lady less than 2 years younger than him. Isn’t our criminal justice system just wonderful!

Related Posts:
More Mandatory Minimums Madness: The “Sexual Predator” Edition (Part I and Part II)

Senator David Vitter’s Phone Number Found On DC Madam’s Records

This should be fun…

Sen. David Vitter, R-La., apologized Monday night for “a very serious sin in my past” after his telephone number appeared among those associated with an escort service operated by the so-called “D.C. Madam.”

Vitter’s spokesman, Joel Digrado, confirmed the statement in an e-mail sent to The Associated Press.

“This was a very serious sin in my past for which I am, of course, completely responsible,” Vitter said in the statement. “Several years ago, I asked for and received forgiveness from God and my wife in confession and marriage counseling. Out of respect for my family, I will keep my discussion of the matter there — with God and them. But I certainly offer my deep and sincere apologies to all I have disappointed and let down in any way.”

The statement containing Vitter’s apology said his telephone number was on old phone records of Pamela Martin and Associates before he ran for the Senate.

Wow… Now, obviously, I’m a libertarian; as far as I’m concerned, the only person that Vitter needs to consult about his naughtiness are his wife and his god. It sounds like he’s cleared it with the former, and the big man upstairs has apparently told him it’s all good.

But something tells me that won’t satisfy the political sharks. They smell blood in the water, and they go into a particular frenzy over a Republican involved in a sex scandal. Everyone’s going to be angling for a piece of this meal.

Personally, I don’t really care about his offense… After all, it’s less serious to me than stashing $90,000 in bribe money in your freezer. But I enjoy anything that discredits politicians; it seems that’s nearly the only way to get any of them out of office these days. So I’ll be kicking back in the recliner with a nice cold beer and enjoying the hell out of this.

Genarlow Wilson Is Still In Jail

By now, Genarlow Wilson’s story should be familiar to everyone. At 17 he was convicted of having consenual oral sex with his fifteen year old girlfriend and, because of the absurdity of Georgia’s sex offender laws, he was sentenced to ten years in prison.

Earlier this month, the judge in charge of his case reduced Wilson’s conviction to his misdemeanor and ordered his immediate release. Wilson had already spent two years in prison, and that would’ve seemed to have been the end of it, except the Georgia Attorney General filed an appeal.

Yesterday, Wilson learned that he would not be released while that appeal is pending:

Genarlow Wilson, whose 10-year prison sentence for having consensual oral sex with a 15-year-old when he was 17 was voided by a judge earlier this month, is not eligible to be released on bail while the state appeals his sentence, a judge ruled today.

The ruling, which came just days after investors announced they’d post a $1 million bond for Wilson, likely means Wilson will remain in jail for several more months. The Georgia Supreme Court is scheduled to hear his case in October.

The order, issued by Douglas County Superior Court Judge David Emerson, canceled the bond hearing that he originally set for July 5.

In his Wednesday ruling, Emerson cited a Georgia law that prevents trial courts from granting bail to people convicted of certain crimes, including aggravated child molestation, when the original sentence exceeds five years, as is the case with Wilson.

“As the court has no authority to grant an appeal bond in this case, there is no need for an evidentiary hearing on the defendant’s eligibility for a bond,” Emerson wrote in a three-page order.

It would appear that the Judge didn’t do anything wrong here. He simply doesn’t have the authority to release Wilson on appeal because of the type of the crime he was convicted of committing. The fault lies with the Georgia legislature for writing an absurd law, and with a prosecutor who continues to pursue a case that really ought to be dropped by now.

H/T: Brendan Loy

More Mandatory Minimums Madness: The “Sexual Predator” Edition, Part II

Back in January, I wrote a post about the injustice that befell seventeen year old Genarlow Wilson who was sentenced to ten years in prison for engaging in oral sex with a fifteen year old girl (just a few months shy of sixteen) at a New Year’s party. Wilson was charged with aggravated child molesting. Wilson is now twenty-one and has served his first two years of his ten year sentence.

Today, Judge Thomas H. Wilson (no relation to Genarlow Wilson) ordered the release of Genarlow Wilson stating in his ruling: “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.”

Even though the Georgia legislature failed to make the law retroactive, Judge Wilson downgraded the charge from a felony to a misdemeanor because the legislature’s intent was to clarify what the state determined to be child molesting. The reason the legislature passed the bill was in direct response to the Genarlow Wilson case.

Despite pleas from Wilson’s lawyer to the Georgia Attorney General to not file an appeal, the Attorney General made the decision less than two hours after Judge Wilson’s ruling to file an appeal, effectively placing the judge’s ruling on hold and keeping Wilson in prison until his case can be heard by a higher court.

This begs the question: what possible purpose is being served by Genarlow Wilson spending ten years in prison for what most people agree is minor offense? Is it really fair to characterize a seventeen year old having sexual contact with someone less than two years younger than him as a child molester? Is this young man truly a threat to children if he is released back into society? Judge Wilson had it right: two years for this offense is enough. Hopefully, the next judge who hears this case will also be as reasonable.

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