Genarlow Wilson is in prison for having oral sex with a fifteen year-old girl when he was seventeen years-old. The sex was consensual. Those are the facts, not my interpretation. There was no rape charge. I hope everyone who reads this will spend some time at $3.60 in order to catch up on the details of the case, including ongoing movement. As well, that site has some fabulous analysis. I’ve wanted to write on the case for quite some time, so here are a few thoughts…
In these kinds of cases, it is always worth stating the obvious: this is such a severe injustice and has seriously harmed a young man’s life. (It is worth noting here that he was convicted of “aggravated child molestation,” a felony, because they had oral sex, whereas conviction on intercourse would only have been a misdemeanor. Yes, that is true.) “Consensual” is the disputed term here, of course, as age sixteen is the age of consent in Georgia. So I use “consensual” to designate “not sexual assault,” rather than the legal sense of consensual; according to the law, the girl was unable to consent. For this “crime,” Wilson will have to register as a sex-offender and cannot live at his family’s home – because he has an eight year-old sister.
So, there, I’ve said that much. This shit is crazy and terrifying. What more can be said?
First, an obvious (I think) bit to think about: how does this prosecutor still have his job? After what happened and will continue to happen to Mike Nifong in the Duke lacrosse rape case, one wonders why David McDade continues to have a job as a prosecutor. He not only watched and still watches over this grotesque injustice, but he recently released the seized video from the case to journalists without blurring the faces of the other teenagers. Seriously. For all the talk about the victimization of the girls in the video, McDade re-victimizes them by releasing what is, in reality, child pornography. If he doesn’t lose his job after this, what can we conclude? I think one answer is obvious, even if a lot of people prefer to think that these days are past us: black victims of unjust prosecution garner pity. White victims of the same demand punitive measures. No other explanation really works for me, except (maybe) the idea that McDade was “only upholding the law to which he is sworn as a defender.”
I get that. Wilson is not in prison because of a strange interpretation of Georgia law. He’s in prison because he broke the letter of the law. Two thoughts on this:
(1) The crime scare of the eighties and nineties led to not only a series of crazy laws passed by legislators – “three strikes” laws and mandatory sentencing stand out – but also to a whole affective politics. Right or wrong, it suddenly became important to be perceived as, and so emit feelings of, hating criminals. Prison terms became the outward sign of that hatred. Longer is better.
Fine. I’ve yet to meet a person who thinks violent criminals are great guys who you want running amok, so that’s hardly a revolutionary stance to take. “Tough on crime” has always been about posturing, not thinking about good policy. Still, it’s not this affect-thing that I’m concerned with here. Nor do I want to go on about the terrible and terrifying social effects of such a shift in criminal management policy (plenty has been written about that). What concerns me here is that we turned policy on a very real question – how to deal with criminal violence – over to folks who have little or no training in that policy. The point of being a judge or legal scholar is largely this: you game-plan laws. You employ hypotheticals in order to see where new laws lead us and then measure that destination with basic principles of both morality (is this good?) and government (is this constitutional?). Legislators don’t do that; legislators are typically pontificators (at worst) or community leaders (at best), neither of which suits them well for game-planning laws.
The Georgia law under which Wilson was convicted is the easiest game-planning I can imagine. The result, this injustice done to Wilson, is an obvious and inevitable one.
(2) My most emphatic observation, though, is this: the actions of the jury as it handed down this conviction reflect the degeneration of our sense of citizenship.
Simple question, really: why didn’t a single juror refuse to convict Wilson? The accounts of the conviction emphasize how troubled the jury seemed at declaring the guilty verdict. Why not refuse? Why not defy the law, especially when the consequences are so direct, clear, and severe?
That is, what has happened to our sense of civil disobedience?
Civil disobedience means saying “no” to a law in the name of a higher sense of justice. The civil disobedient appeals to a sense of the good beyond what extant law asks of us. And it means accepting the consequences of that action; the bold juror might have to accept a penalty of some sort for contesting what the law asked of him or her. Our national political iconology is full of just these kinds of actions. Martin Luther King, Jr. is the most prominent and most recent case, and it is always worth noting that his own articulation of civil disobedience in various essays underscored accepting penalties. He spent a lot of time in jail. Our nation was saved from untold violence because of that courage.
Where was the courage on the jurors’ part?
The lack of action says a lot about our culture’s sense of the relation between freedom and law. On the one hand, we love nothing more than our freedom. Rightly so, it is a good thing. On the other hand, we have a sort of fatalism about the law. 
If it’s the law, well, I guess we have to do what it says. This isn’t really a contradiction, but it is something worth thinking about. Or simply interrupting with senses of the right and good beyond empty freedom and problematic laws. Again, we have plenty of historical examples to compel our action. M.L.K., Jr. is a national hero because of that interruption of law with rightness and goodness.
Maybe that’s what this thing Guy Debord called “the spectacle” has done to us…we remember King with good feelings and images, but fail to be moved by his principles and lessons about what is asked of us as citizens. Maybe we just like the feeling that good people have existed in the past, but prefer to brush aside any sense that something might be asked of us in small places like a jury deliberation room. After all, King’s central insight is this: the law is only worthy if it promotes goodness and justice. Otherwise, it deserves our disobedience.
When the jury deliberated putting Wilson in prison for years, condemning him to registering as a sex offender (with all the terrible consequences that come from such registration…seriously), they came face-to-face with atrocious injustice. And they all decided to forsake their freedom for the letter of a law they knew was wrong. That’s a failure of citizenship, plain and simple.
Let me be clear: I don’t mean to pin all of this on the jury. They were the last stage of a terrible process of political posturing, poor attention to details in law (oral sex a felony, yet intercourse a misdemeanor?), and blind obedience to the letter of the law. At the same time, the jury is a real and decisive stage, that moment in which laws take a bite out of our world. In many ways, jury deliberation is our most democratic moment. To have failed at this moment, to have acted against one’s own conscience, means a man’s life. And they knew better. It also reflects a degenerated sense of democratic citizenship.
Surely we can do better than this, folks. Any chance the Genarlow Wilson case will become the “big cause” on college campuses this fall, like Mumia some years ago? Probably not. I have a lot to say about why that’s the case, but, hey, this post is already really long.
http://www.wilsonappeal.com/
I have a hard time with the concepts of the rule of law and “civil” disobedience.
“After all, King’s central insight is this: the law is only worthy if it promotes goodness and justice.”
Another way of phrasing that is to say that the law is a useless institution. If people act justly, it is irrelevant whether the law promotes justice or inhibits it. That is, aside from the potential repression of the RSA in the latter case. However, the RSA would not exist if there were no law in the first place. Thus, law is a useless institution.
I also think civil disobedience is a fallacy. MLK wouldn’t have accomplished what he did if it weren’t for the ever-present threat of Malcom X or the Black Panthers. Of course, I agree with you that the spectacle/hyperreality has disconnected the images and memories of MLK from his original message – it’s why we forget that he was a socialist in his later years. Civil disobedience is rooted in the social contract, present in the language of the first amendment: “Congress shall make no law… inhibiting… the right of the people to PEACABLY assemble or to PETITION THE GOVERNMENT for the redress of greivances”.
The essence of the Social Contract is, supposedly, that it can be revoked: Locke’s right to rebel. And yet, that is an utter contradiction. All those philosophers failed to realize that nation-states (and the individuals who manage them) have an interest to preserve their order. Look at McCarthyism, an utter violation of the supposed rights granted to the citizens by the government. We tend to view that era as an abhorration – an exception, if you will – but I disagree. I think McCarthyism was the system’s rational response to a threat. People tried to rebel and they were put down – outside the boundaries of the government’s constitutional laws – because the system perceived a threat.
Rebelling is not as simple as to say “I believe a law is unjust, I terminate the social contract”. (If only…) We can assemble peacably (read: in a non-threatening way to the system) to petition the government (the very institution we want to protest) for a redress of our greivances. In other words, we do not have the right to rebel: WE NEED THE APPROVAL OF THE STATE TO TERMINATE THE SOCIAL CONTRACT. But that is only if we assemble peacably, if we protest civilly. If we assemble and protetest un-civilly, then we can revoke the contract by force and do away with unjust laws – and all laws.
Althusser would have a field day with this. I finally finished Politics and History (it’s dense as hell). Your talk about unjust laws fits in well with his discussion of Montesquieu. (I’m not sure if you read the book or not, you probably have, but whatever.) In Althusser’s view, Montesquieu was intrigued by the contradiction of humanity: that we are unaware of the physical laws, which we do not make for ourselves, that are perpetually and inevitably governing our actions; yet at the same time we break the laws that we make ourselves! He also talks about the contradictions in Rousseu’s Social Contract, which I may have extrapolated on a bit too far, but oh well. It kind of puzzles me that Althusser was a hardcore Leninist-Maoist and yet it’s so easy to read him as a libertarian Marxist, but that’s another topic.
My apologies for going on a huge tagent/rant. I also apologize that this won’t become the big cause on campus – got some other equally (possibly more) controversial stuff lined up. Though I’d be interested to hear your thoughts on why this won’t be taken up on campuses in the Fall. And hell, let’s not forget that Mumia is still in jail.
Just a couple of thoughts…
1. The rule of law is a good thing, in my book. The real question is if laws promote goodness and justice, which is to say, allow citizens (and even non-citizens) to flourish.
2. I think we have to be precise with this term “civil disobedience.” The “civil” doesn’t refer to the gentlemen’s sense of civil – you know, of manners and the like. Rather, it refers to the social space into which one takes disobedience: civil society. Civil society is where societies live and breathe. To make change there is to change everything.
King, Jr. was hardly civil in the gentlemen’s sense of the word. Witness the extreme violence non-violence provoked. That’s why King, Jr. emphasized the violence of non-violence in “Letter from a Birmingham Jail.”
I actually think the whole Malcolm X versus Martin Luther King, Jr. motif is usually underinformed about how radical MLK, Jr. actually was in his thinking and action (and, often, underinformed about how conservative Nation morality and politics were, aside from anti-racism). Plus, historically, the King, Jr.-led civil rights movement made a lot of inroads before Nation of Islam became part of our national consciousness.
That’s another post and discussion.
My point here is that the law can only promote goodness and justice if we expect it to. And therein lies law’s legitimacy. Law can’t promote goodness and justice in all cases, sometimes because laws are just cruel, sometimes because laws can’t attend to specificities of the case. That’s why civil disobedience is our only tool at this very democratic moment of social meaning-making.
Hi, I wrote a blog about structural/Institutional racism in the United States linking together the cases of the Jena Six trial in Louisiana, Shaquanda Cotton in Texas, and Genarlow Wilson in Georgia. It is a national phenomena that young black children are being locked away for minor crimes.
http://www.justdemocracyblog.org/?p=627
I think it is important to put a face on structural and institutional racism in America. It is claiming real victims, and they are getting younger by the day now that Zero-tolerance policies have come about.
Peace,
C.B. from Advancement Project
“The rule of law is a good thing, in my book. The real question is if laws promote goodness and justice, which is to say, allow citizens (and even non-citizens) to flourish.”
I strongly disagree that the rule of law is a good thing. (First time I’ve really disagreed with you, had to happen eventually, eh?) The language you used there actually fits in really well with my point. Thomas Paine’s “Common Sense” (you know, that text everyone talks about in high school history classes but people don’t actually read) opens with this:
“Some writers have so confounded society with government as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restrain our vices. The one encourages intercourse, the other createst distinctions. The first is a patron, the last is a punisher.”
I think that distinction between positive and negative is key. To me, the rule of law basically expresses a lack of faith in humanity. It says that we are not good enough to govern ourselves and that we need an external force to regulate us – we cannot live by uniting our affections alone, our vices must be restrained as well. You say that good laws can promote goodness and justice, but I think that the way law functions (”this is something you cannot do”)prevents it from positively promoting anything. Law can only restrain, it cannot promote.
Sorry for my misunderstanding of civil disobedience. I’ve never been very good with the concept of civil society… it always seemed slightly off to me. I guess I’m not sure whether there really is such a clear line between the state and social institutions as the civil society theory would suggest. On the one hand, that quote from Paine (which I love) suggests exactly that. On the other hand, a lot of cultural anthropology suggests that the top-down vs. bottom-up dichotomy is very much overblown and there is a good deal of interplay between the two. So I dunno, that’s something I need to think about on my own time.
shamefully i am from the state of GA, no longer though. not only is this an issue, but it is also against the law to have sex in any other position than missionary position. how many citizens of GA have broken that law?
secondly, i hold you in the highest regard possible purely because you were able to work guy debord into this post. i spent a whole year in France studying guy debord and the ideas of the spectacle and derive. such a beautiful example and use of this theory.