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View Diary: Breaking : Genarlow Wilson's sentence voided ! (412 comments)

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  •  I know how it's been reported (3+ / 0-)
    Recommended by:
    fabooj, Pete Rock, lemming22

    But I'm not buying it, because, from my reading, the statute used against Wilson wipes out the "Romeo and Juliet" exception that has been cited.  It's just staggeringly bad code writing.

    What's generally been reported is that had Wilson had sexual intercourse with the 15-year-old, he would have been guilty only of a misdemeanor, but because he received oral sex from her, he had felonious liability with a mandatory 10 year sentence attached.  This is based on a comparison of two different sections of the state code.

    O.C.G.A. 16-6-3 (as of 2001):

    (a) A person commits the offense of statutory rape when he or she
     engages in sexual intercourse with any person under the age of 16
     years and not his or her spouse, provided that no conviction shall
     be had for this offense on the unsupported testimony of the victim.
       
     (b) A person convicted of the offense of statutory rape shall be
     punished by imprisonment for not less than one nor more than 20
     years; provided, however, that if the person so convicted is 21
     years of age or older, such person shall be punished by imprisonment
     for not less than ten nor more than 20 years; provided, further,
     that if the victim is 14 or 15 years of age and the person so
     convicted is no more than three years older than the victim, such
     person shall be guilty of a misdemeanor
    .

    O.C.G.A 16-6-4 (as of 2001):

    (a) A person commits the offense of child molestation when he or she
     does any immoral or indecent act to or in the presence of or with
     any child under the age of 16 years with the intent to arouse or
     satisfy the sexual desires of either the child or the person.
    (b) A person convicted of a first offense of child molestation shall
     be punished by imprisonment for not less than five nor more than 20
     years....
    (c) 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.
    (c) 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.
    (d)(1) 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
    ....

    But in doing a direct compare and contrast of the two bolded sections above, it seems that O.C.G.A. 16-6-4(a) from 2001 has been completely glossed over.  And it looks like it had (and still has, even after the 2006 amendment) loopholes that you can fit an aircraft carrier through.

    (a) A person commits the offense of child molestation when he or she
     does any immoral or indecent act to or in the presence of or with
     any child under the age of 16 years with the intent to arouse or
     satisfy the sexual desires of either the child or the person.

    What is "any immoral or indecent act"?  Of course, there's no direct definition in the code.  But take a look, for example, at O.C.G.A 16-6-8, covering public indecency offenses:

    (a)A person commits the offense of public indecency when he or she performs any of the following acts in a public place:

    (1) An act of sexual intercourse;
    (2) A lewd exposure of the sexual organs;
    (3) A lewd appearance in a state of partial or complete nudity; or
    (4) A lewd caress or indecent fondling of the body of another person.

    I would appreciate it if some real lawyers can point out statutes or caselaw that provides some guidance to a novice like myself - that there's something preventing the scenario I'm envisioning.  But I'm having a hard time seeing how sexual intercourse or oral sex doesn't fall into the "immoral or indecent act" component of 16-6-4(a).  And that had, and may still have, felony liability and a five year minimum sentence tied to it.  If 16-6-4 can be used this way, then the close in age exception in 16-6-3 is practically meaningless.

    Futhermore, in Wilson's case, the "in the presence of" section of 16-6-4(a) is problematic.  The fifteen-year-old was in the room while Wilson had sexual intercourse with the seventeen-year-old.  The intersection of interpretations of "in the presence of" and "immoral and indecent act" is really troubling to me.  For instance, it looks like there's a way for someone to be put in jail for five years and to be registered as a dangerous sexual predator for copping a feel at the junior prom.

    As I realize that I may be coming across as a complete wacko here, let me say that I don't see such absurd cases occuring independent of other charges.  Rather, I see them occuring as they did in Wilson's case: with a prosecutor pursuing, and likely believing in, a rape case, who uses any available statutory basis in order to get a conviction.  But such a harsh punishment resulting from illogical statutes - especially when, as in Wilson's case, the trier of fact discarded the primary rape charge (for which video evidence was admitted) that was the thrust of the case - is simply a perversion of justice.  And I don't think the 2006 amendment by the state legislature fixed the problem for the future nearly as well as they think it did.

    "In time you can turn these obsessions into careers."

    by looking italian on Mon Jun 11, 2007 at 12:02:29 PM PDT

    [ Parent ]

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