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Statutory Rape: 10-years Imprisonment and Sex Offender Registration is Cruel and Unusual Punishment, Court Rules

Posted on: October 29, 2007 at 11:22 p.m.

California law makes it illegal for anyone to have consentual sex with anyone under the age of 18. The criminal offense is also known as the California Statutory Rape law, Penal Code Section 261.5. The greater the age difference in the intimate relationship, the more serious the consequences in a criminal court. If the age difference is less than three years, the offense is a misdemeanor (informal probation, community service, and jail). If the age difference is greater than 3 years, the offense is known as a wobbler under California criminal law, meaning it could be prosecuted as either a felony or a misdemeanor (a felony means the possibility of prison time).

The difference between the Statutory Rape law and Child Molestation is in the latter the victim is under 14 years old and even a reasonable belief that the victim is older is not a defense in criminal court. The Statutory Rape law does allow the defense that the older person believed that the victim was actually older than 18 years old, ie. he/she told me he/she is twenty....he/she looked and acted much older...the bottom line the jury is left to decide whether the defendant truly and reasonably believed that the victim was 18 or older.

A recent case out of Georgia state court highlights an example where the state's Statutory Rape law was applied too aggressively to a consensual relationship. Genarlow Wilson in 2005 was convicted of aggravated child molestation for having oral sex with a 15-year-old girl when he was 17. He was sentenced to 10 years without parole, the mandatory minimum under Georgia law at the time. But the state's high court, in a 4-3 decision, found that the sentence amounted to "cruel and unusual punishment." In California, criminal defense lawyers know that this type of case would probably not have been prosecuted. And even if it was, the case would have been pursued through the juvenile court process resulting in a home on probation disposition.

And on Friday afternoon, Wilson, now 21, a former high school honor student and football star, walked free from the Al Burruss Correctional Training Center after 32 months behind bars. He was calm, soft-spoken and relieved. "I'm finally happy to see we've got justice," Wilson said at a news conference outside the prison. "It's just a whole new beginning. I've got fresh breath, a new life."

Wilson's case also highlighted the increasingly strict sex-offender laws that have become common in Georgia and other states. If his conviction had been upheld, Wilson would have had to register as a sex offender upon his release. Georgia law would have prevented him from living or loitering within 1,000 feet of schools, day-care centers, parks, churches, swimming pools or school bus stops. His lawyer stated, "This is an awakening of parents everywhere... have a conversation with your teenager." She added: "Dangerous sex predators are out there. Those are the people who should be subjected to harsh laws, not Genarlow Wilson."

In the majority opinion, Chief Justice Leah Ward Sears noted that the Georgia Legislature had altered the law in 2006 to make conduct like Wilson's a misdemeanor that would not require registry as a sex offender. Sears said that represented a "seismic shift in the Legislature's view of the gravity of oral sex between two willing participants." The Court explained that Wilson's case "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 10 years in prison without the possibility of probation or parole, appears to be grossly disproportionate to his crime."

In Southern California, the criminal defense of sex-related offenses is common. Criminal lawyers should be aware that California child molestation law would require sex offender registration for life under Penal Code Section 290 (for sex with someone under 14). However, the statutory rape would not require such registration. And again, the bottom line here is how old the alleged victim was, not the age of the accused.

Tagged as: sex crime accusations

Comments:

D on November 17, 2009 at 3:41 a.m. wrote:

i think that when someone calls rape they them selves should be investigated thoroughly and mentally because accusing someone of rape is a very serious matter and shouldnt be messed around with both should be investigated dont get me wrong rape is bad and all who have done it should be punished but to accuse the wrong person is not cool and canr uin the rest of thier lives


Rachel Contreras on June 22, 2009 at 2:01 p.m. wrote:

I think kids should not be having sex to begin with,if the parents and the school educated the kids as to the risks and possible harm it could lead to, I think alot of kids would have second thoughts about having sex before the were old enough and responsible enough to handle the outcome of their actions.AS far as the court is concerned it has taken things to far and is out of control, kids will always be sexual if they don't have any one to talk to about their feelings, but for the court to punish them for having sex is wrong unless either of the ones involed were attacked or violated by force.But as I see it the courts want to destroy lives by putting them in jail or prison, when actually what they needed is counciling,so what really matters to the state is money,they don't care who they put in jail or for what!!!!


athar Mikhail on December 15, 2007 at 6:36 a.m. wrote:

This case perfectly supports pizzi's depiction of our love for procedure. We take this child molestation law with our eyes blind to reality and look at the black print law and try to enforce it without looking at the reason behind this law. This law was made for sexual predators who are much older than their victims, and who are also pedophiles. This child is clearly not a child molester. 10 years is ridiculous for this kid who did nothing wrong. Its unfortunate to see his life turn around for this consexual act that had no victim or predator, they were both fine with the act. It boggles me sometimes to see how far we can take this love for processes to such great extremes.


ay 505 on December 15, 2007 at 2:59 a.m. wrote:

I am shocked to see that this case did not end up in jury nullification. I remember hearing in the news that one of the jurors did not know of her ability to nullify the case, if she thought that the punishment was not just and she regretted her decision to declare Mr. Wilson guilty. This is an example of what can happen with mandatory minimum sentences, where the judge cannot effectively take each situation case by case. I think that politicians who try to act like they are


Steven (Matt) Gibson on December 12, 2007 at 9:22 p.m. wrote:

Sexual assault charges, whether fro molestation or statutory rape, are incredibly serious offenses that serve an important function in the law. However, it seems a little absurd for those who are not even yet adults to be charges for consensual sex with someone younger than themselves. Unless the victim testifies that the older partner was forcing her against her will, this law is missing the mark and seems to be over broad in its legislation. For minors their could be a statute that limits sexual relations between those with an age difference greater than 5 or 6 years, but anything stricter than that seems highly unnecessary. Punishing kids for taking part in sexual acts with other kids is a waste of time and resources. Focus more on catching adults who should know better preying on younger and vulnerable juveniles.


Monica Evans on December 4, 2007 at 2:01 p.m. wrote:

I think that is case was unreasonable. This guy was probably in a relationship with the 15 year girl and they happened to get caught having oral sex, but i do not think that he should be guilty for anything. There are truly sex offenders out there and we are focusing on high school relationships. This goes on everyday, are they going to prosecute every guy at a high school who is hooking up there their girlfriends; its just crazy to me. Not to mention that he was a star athlete and had great grades and now jail is on his records.


Luci Marzola on November 30, 2007 at 10:13 p.m. wrote:

Laws on such specific crimes are so difficult to define, especially with changing moral ideals. What is perfectly legal when performed by two people, becomes illegal when performed by two others. Where does one define the line? This also raises the issue of sex offender registration. I've always been a little uncomfortable with this idea. It seems to be punishing the person again after they have served their debt to society - especially those who went to trial before registration existed, and therefore could not have it as part of their agreed upon sentence. It also seems like the label of 'sex offender' cuts across a huge range of offenses from indecent exposure to child rape. The serious offenders (rapists and molesters) are the real targets of this, yet most of these crimes are committed within families or acquaintances not random strangers picking up kids at parks. Though I think it is advisable to do something to prevent the serious offenders from acting again, there has to be a better way than banning them from parks and pinning their name on the town hall (so to speak).


Amanda Hester on November 25, 2007 at 7:03 p.m. wrote:

I would like to start this comment by telling about a similarly absurd case. This case, however, was prosecuted in Orange County. A young man in his early 20's had just come home from serving time in Iraq with the military. He was sitting in a bar when a woman approached him and started flirting with him. She looked a little young, and although she was in a 21 and over bar, he still asked to see her ID. It said she was 21 years old and that ended the discussion of her age. After a few more drinks, the two went behind the bar and were seen by an officer having sex. The two were arrested for public indecency but the charges escalated--for him at least--when it was found that the woman was a only a 14 years old. Due to the vast age difference, the young man was found guilty--irregardless of his asking to see her ID and the fact that she was in a bar--and required to serve prison time and register as a sex offender after his release. Laws preventing sex with a minor, whether consensual or not, are in place to protect our youth from being preyed upon. But in certain cases, attornies apply the law in an unfair manner to punish those that the law was not created to target. This was, I believe, the case with Genarlow Wilson. We prosecute those 18 and over as adults and we prosecute those under 18 as juveniles. This line was drawn and I believe we need to follow it. I have never understood prosecuting a 16 year old or a 17 year old as an adult. While that is another argument all together, I do not think two consenting teenagers between 14 years old and 17 years old should result in one doing jail time. Those adults (typically the fathers of 'angels')that feel the need to press charges against a 17 year old are abusing the law. I believe if two teenagers are having sexual relations, it is something the parents need to handle within their own home or with a counselor if needed. Consensual sex at a young age is not a crime in my eyes, while I do think it best be avoided. The courts should better spend there time prosecuting those over 18 that have sex with those under 18 and ecspecially those under 14. I do agree with the direct relation between the age difference and the severity of the sentence.


Gideon Goei on November 13, 2007 at 11:59 p.m. wrote:

I believe this is an example of how slow our appeal court system is. Taking 2 years and disturbing the life of a very potential successful high school student. This students life will be very hard with this exposition of this embarrassing 'crime'. However, i do believe that Georgia had the right to do this deed since its constituents seem to believe these things to be very wrong relative to what we, Californians, think. However again, our federal system should protect us from such unconstitutional acts to occur and needs to be more speedy about it.


David Carde on November 13, 2007 at 6:10 p.m. wrote:

I found many aspects of the Genarlow Wilson case to be telling and alarming. First, it's a good example of the problem with mandatory sentences. Under Georgia's Statutory Rape law, Wilson received the minimum sentence and that was 10 years without parole. Thank goodness for a defendant's right to appeal and for the decision of the Georgia court of appeals that this mandatory sentence was deemed to constitute 'cruel and unusual punishment.' I also found it fascinating that this case would most likely not have been prosecuted in California. Indeed, the parties involved amounted to a 10th grader having oral sex with a 12th grader. Maybe I shouldn't write this, however, at the local prep school I attended in Los Angeles, this turn of events would hardly have been unusual, let alone noteworthy. Unfortunately, oral sex was not even considered to be sex at the school I attended and was treated by the students in an entirely casual way. Maybe in California the attitude is too casual; however, clearly in Georgia, the attitude is outrageously punitive. Sadly, even with his sentence over-turned, Wilson's life will never be the same.


Kelsey Kernstine on November 12, 2007 at 6:55 p.m. wrote:

I believe that Genarlow Wilson faced way too harsh of a punishment with 10 years in prison. He was only two years older than this girl. I do not understand how he could be convicted of aggravated child molestation for having oral sex with someone who is only two years younger than him. I definitely believe in greater punishment for people


Sam Rosenblum on November 12, 2007 at 1:22 a.m. wrote:

This is a pretty sad version of


Andy Blair on November 6, 2007 at 6:30 p.m. wrote:

I think that this case should have seen jury nullification... I know if I was on a case and people of these ages were in consensual oral sex, and the older one was facing 10 years in prison I would find them not guilty, regardless of actually having done the criminal act or not. I am glad that he got out, but it also brings up the issue of how the state should compensate the victim. I am aware that in California if a case is 'Maximum of $100 per day of wrongful incarceration available within 6 months after acquittal, pardon, or release. Claimant must show he did not 'contribute to the bringing about of his arrest or conviction for the crime with which he was charged.' (Innocence project) But maybe we should think of possibly making this more accessible, granted that would mean raising taxes most likely and that wont happen.


Mai Hong on November 5, 2007 at 1:45 p.m. wrote:

I didn't realize the statutory rape law still applied to cases where both people were under 18. I thought the point of the law was to prevent sexual predators. In any case, I think this sentence was too long. They need to standardize the punishments, so that such a discrepancy doesn't occur.


Kyle Reilly on November 4, 2007 at 1:34 p.m. wrote:

It frustrates me greatly to see such a harsh punishment inflicted for such an offense. I think that if the alleged person is led to believe that the person is over the age of 18, it should not be punishable. Unfortunately, people are subject to lie, and it does not make sense to have to exchange a Drivers License or a Passport with another person before having intimate sexual relations. This is simply ridiculous. This young man has wasted three years of his life. He was an honors student and could


Steffany Strain on November 4, 2007 at 12:45 p.m. wrote:

I believe Wilson's punishment of a 10 year sentence was far too aggressive due to that fact it was a consensual relationship. If two individuals are both under the age of 18 engaging in a consensual relationship it makes no sense that only one person is convicted. To my understanding, although it was not forced raped, it was consensual, it is still considered statutory rape when someone has sexual relations with a person under the age of 18. Since they are both minors it should make no difference that he is 3 years older. Why isn't she being convicted? She had consensual sex with someone under the age of 18 as well. Furthermore, if the state is so concerned with minors engaging in sex and for instance, ruins the future of a potentially bright student by sentencing him to 10 years in prison for sexual relations in a consensual relationship, why are schools constantly passing out condoms to their students? So, is there a conflict between the California's State Statutory Rape law and the public schools who pass out condoms and lecture students on sex?


Bahar Sodaify on November 2, 2007 at 4:42 p.m. wrote:

Georgia's ruling of the Williams case was too harsh for the alleged crime. A 17-year-old boy and a 14-year old girl having sexual relations should not be deemed as a criminal act, but rather a misdemeanor. Moreover, they are only 3 years apart. Therefore, because of the proximity of their ages, the likelihood that the sexual act was consensual is further validated. The accused and the alleged victim are both under the age of 18. Therefore, shouldn't the girl also be held accountable for participating in a sexual act with someone that is under the age of 18 too? Usually in cases such as this, the girl is almost always considered the victim. However, this misconception can be detrimental to the outcome of the case and, most importantly, the future of the accused.


Leah Streiter on November 2, 2007 at 12:35 p.m. wrote:

I am assuming that the parents of the girl found out about her relations with Genarlow Wilson and went ahead to prosecute on behalf of their daughter. My question is if the relations was consensual did the daughter retract that it was consensual when her parents found out about it? And why wasn't the girl prosecuted for having relations with Genarlow Wilson who was a minor at the time as well? If anything i would expect this type of sentence from a judge not a jury of peers. Shocking.


J. Jacobs on November 2, 2007 at 11:28 a.m. wrote:

And side note, the literature on the case that I found put the boy at 18 during the time of the offense. Not to mention he had been accused of several other sexual offenses at school on separate occasions by different girls. -Just trying to play devil


J. Jacobs on November 2, 2007 at 11:15 a.m. wrote:

I agree with Megan Schoen. One of the most disturbing instances of this process was the jury's ability to unanimously convict this young man of the crime; especially considering the 'unforgiving nature of the law'. This post was very alarming to me because I assumed that the law was regarding sex with a minor (when the offender is an adult). It is a sad time we live in when a jury is able to convict on a charge like this; but struggles to convict on more malicious crimes.


Tiffany McCormack on November 2, 2007 at 1:45 a.m. wrote:

This blog doesn't state it in the text, but I read an article about the Georgia rape case and it turned out Genarlow Wilson was made an offer while serving his time to be freed early as long as he registered as a sex offender. However, Wilson declined the offer because he felt that this was an inappropriate compromise. He strongly believed that it was an unjust punishment, and he was not willing to be persecuted for it. He did not agree with the sentence, and he stood by that every day in prison. Wilson is a victim of the criminal justice system. I'm glad he stuck by his decision because if he hadn't then there would not have been a change in the Georgia statute. I am disappointed and saddened that this young man had to waste years of his life in prison; however, it seems as if some injustice must occur before justice can prevail. I think that this is the beauty of the law: it is everchanging. Although it is impossible to give innocent people years of their life back, we can atleast bring change to the law so that such situations do not occur again. There will always be problems with the the adversarial system, but as long as we are willing to change laws and processes I think that eventually we will come to see fewer injustices made against victims of this system.


Meghan Schoen on October 31, 2007 at 12:38 a.m. wrote:

I was very alarmed by this strict enforcement of a law that to me personally seems overly general. Like other people have commented, to prosecute a 17 year old for having sexual relations with someone two years younger is nonsensical. The law states that it is a crime to have consensual sex with anyone under the age of 18, but one thing that seems to be overlooked here is that the boy was also under 18, so couldn't it be interpreted that the girl should be charged as well for having 'illegal' sexual relations with him, instead of the other way around. They were both minors and they were only two years apart; this particular application of the law seems to me to be a stance against teenage sexual interaction rather than the prevention of statutory rape. What frightens me more than the strict and unforgiving nature of the law itself is that a jury upheld this application of the law. Assuming that a jury represents the community values; wouldn't it appear that in this specific situation the community merely is trying to abolish teenage sexual interaction? It seems to me that a reasonable person would find that there had to be more to this case which swayed a jury of 12 'reasonable' people to convict.


Kara on October 30, 2007 at 5:35 p.m. wrote:

I think it is interesting that the age of the offender is not of importance here. I previously had thought that statutory rape laws only applied to those who were 18 and over who offended. This is significant to me because if the offender is under 18 then they are a minor as well. I remember being 14 and being very attracted to other older boys in High School who may of been 16 or 17. It may not be as appropriate if someone is 12 or 13 and engaging in sexual activity with someone who is 16 or 17, but honestly those offenders are still minors in my oppinion and not necessarily offenders then. I personally don't think teenagers ranging in age difference of five years is that odd, it's actually biologically quite normal. However, I'm not saying their isn't a major difference between consenting partners of 17 and 12 - but I do have to say I knew quite a few girls when I was younger who specifically sought out older teenage (and sometimes older) boys. I agree that the case in Goergia was cruel and unusual and I'm glad it worked out in the end, although that boy shouldn't of had to fight that case till he was 21 and spend the amount of time in jail that he did.


Emily Jackson on October 30, 2007 at 4:15 p.m. wrote:

In Washington State last summer a 47year old male teacher was tried for having/initiating oral sex with a female student only 16 years old. He was also tried for using illegal substances with the same student. He was only sentenced to 9 months in jail, with one year of probation and all teaching credentials revoked. Thus I feel the particular Georgia case was unusually harsh or the Washington state was too easy. There should be a more standardized federal punishment for such crimes. Especially since the young man in Georgia was also minor and the man in Washington was over 30 years the victims senior.


Isabel Alencar on October 30, 2007 at 1:13 p.m. wrote:

It's a shame to see this young mans life take such a turn, when it didn't have to. The rest of his high school career, and his teenage years were taken away from him, and although he feels justice is now done, since he is free, it doesn't replace the almost 3 years he spent in jail. My heart goes out to him.


Kate Monson on October 29, 2007 at 11:57 p.m. wrote:

I found many aspects of this case interesting. First, I immediately thought who prosecuted Genarlow Wilson in 2005? Despite the seemingly harsh and unjust punishment, there must have been another side to the story. Someone must have felt that he raped the young girl because the case was brought to court. Additionally, I found the California Statutory Rape law had two important provisions. The first is that if the age difference is less than three years the offense is a misdemeanor. I think the odds of consentual sex are much greater the closer these young adults are in age and thus, a lower charge should be allowed. Second, I think it?s important for the defense to have the option of arguing that the older person believed the victim was older than 18. I know a lot of people who lie about their age to appear ?cooler? and more mature to someone they are interested in. Finally, I think it?s important for parents to not only talk to their teenagers about safe sex, but also the consequences of their actions. I personally did not know anything about this law before reading the article and suspect other teenagers are in similar situations.









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