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The Problem with Prosecutorial Discretion


Genarlow Wilson, a promising high school sports star who was also a whiz in the classroom, was sentenced to ten years for having consensual oral sex with a fifteen year old girl (he was the recipient, for inquiring minds). When he was seventeen. He had no criminal record. He was by most accounts a good kid.* He was arrested on the day he was to sit for the SATs. And yet, ten years. Sounds crazy, huh?

Well, it is. The Georgia jury that convicted Wilson had no choice (other than jury nullification) — the archaic law under which Mr. Wilson was convicted made no so-called “Romeo and Juliet Exemption,” recognizing that consensual sex between teens who are close in age is not a crime. The state’s Romeo and Juliet law exempted actual intercourse but not oral sex. Go figure. The woman who he supposedly “molested” did not want him prosecuted. The community opposed the prosecution. Yet it continued. As the New York Times wrote in a December 2006 editorial called “Free Genarlow Wilson Now”:

On June 11, a Georgia judge finally voided Wilson’s sentence and sentenced him to time served. But the state Attorney General, a seeming wingnut named Thurbert Baker, has announced that his office will appeal this new development and will try to keep Mr. Wilson incarcerated for the full ten years of his sentence (he has already served over 2 years). Wilson will likely remain in jail while the appeal is pending. Baker claims that he has no choice. But a simple comparison of two cases shows that that’s not at all true:

The sexual act took place during a party involving sex, marijuana and alcohol, all captured on a graphic videotape. But that does not make Mr. Wilson a child molester. When high school students engage in consensual sexual activity, that is not the same as an adult molesting a teenager or a teenager molesting a child.

What makes this case more absurd is that if Mr. Wilson and the young woman had sexual intercourse, he would have been guilty only of a misdemeanor and not required to register as a sex offender, thanks to a provision in the law meant to avoid just this type of draconian punishment for consensual youthful indiscretions, the “Romeo and Juliet” exception. And since Mr. Wilson’s conviction, the law has been changed to exempt oral sex as well. But the courts say that can’t help Mr. Wilson retroactively.

At the same time Wilson was being tried, Kari McCarley, a white 27-year-old teacher, was being tried in the same courthouse for having sex with a 17-year-old student. She got 90 days in jail and 3 years of probation. While Wilson’s prosecutor, David McDade, has claimed that he was “standing up for African-American victims in this case,” he hardly seems credible, since the “victim” did not want to press charges and did not even testify for the prosecution.

Therein lies the problem with prosecutorial discretion. They have a lot of it when they want it and none of it when they don’t. And it just so happens that the discretion seems to disappear when the suspect is poor, black, an immigrant, and increasingly, a woman.

It should be noted that Ampersand has a post up about an alleged second sexual assault at the same party. I don’t know anything about this and haven’t read about it elsewhere. I also don’t think that it complicates the matters in this specific case at all — even if Wilson was involved in that other alleged rape, he didn’t “sexually molest” this fifteen-year-old young woman. Anyway, in the interest of full disclosure and so not to have someone fling this at me in comments, I’m flagging it here.

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