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.