Racism, Justice and Age-of-Consent Laws in America

America has long been scarred by racially-motivated miscarriages of justice, especially those rooted in white fear of interracial sex between a black man and a white woman. The case of Genarlow Wilson recalls this long history of injustice.

In 1931, the railroading of the Scottsboro Boys for the alleged rape of a white woman rocked the nation. In 1955, the horrendous murder of Emmett Till for smiling at a white woman (and the subsequent acquittal of those charged with the crime) traumatized America. In 2000, the mysterious hanging of Raynard Johnson in Kokomo, MI, apparently because of his friendship with two white girls (and ruled a suicide) remains a bitter memory among many local African-Americans. And, of course, the 1994 trial of O.J. Simpson for the apparent murder of Nicole Brown Simpson and Ronald Goldman still makes front-page headlines.

Each in its own way represents a peculiar miscarriage of justice. The first three, Scottsboro, Till and Johnson, reveal how institutional racism victimizes the innocent black men caught up in the furor of local politics; the Simpson case reveals how this same institutional racism can upend the justice system and undermine legitimate juridical procedure.

The case of Genarlow Wilson reveals how institutional racism involving interracial sex among young people remains a fact of American life. This racism contributed to the imprisonment of a 17-year-old black youth for engaging in oral sex with a 15-year-old white girl. The white girl who voluntarily participated in the oral sex was under the age-of-consent law to engage in sex and, therefore, Wilson was convicted of aggravated child molestation and sentenced to 10 years in prison. This case reveals not only how interracial sexual relations remain an exposed nerve in American society, but also how age-of-consent laws serve to regulate sex, especially sex among consenting young people.

* * *

On New Year’s Eve 2003, a group of high-school boys rented a motel room at a local Days Inn in Douglasville, GA, to host a party and, during the evening, girls showed up. With alcohol and marijuana lubricating the evening’s festivities, things turned to sex. And in our ubiquitous YouTube digital media world, someone brought a video camera to capture the goings-on.

The video, which became a key element in the subsequent trial, shows one 17-years-old girl having sex with boys in a bathroom, then a bedroom. Wilson is also shown having sex with this girl. Another girl, who was later revealed to be 15-years-old, is shown having oral sex with Wilson and other boys.

According to court testimony, the next day the 17-year-old girl’s mother called the police claiming that her daughter had been raped. The police arrested Wilson and five other boys. While the other boys accepted plea bargains for reduced sentences, Wilson insisted on his innocence.

In February 2005, Wilson went on trial for charges relating to having sex with the two girls. J. David McDade, the Douglas County, GA, district attorney, acknowledged the video as critical to the case. “There is no doubt that without the videotape,” he stated, “we would have to be relying on the statements of these young people, and that would have been a more difficult prosecution.”

As the video made clear, the rape of the 17-year old did not occur and Wilson was acquitted for this charge in less than an hour. However, with regard to the 15-year-old, Wilson was convicted of aggravated child molestation, of violating the state’s age-of-consent law, a felony. In Georgia, illicit sex is taken seriously: until 1998, oral sex between a husband and wife was illegal, punishable by up to 20 years in prison. Wilson was sentenced to the mandatory 10-year prison sentence and listed on the state’s sex offender registry.

For the last two-and-a-half years, Wilson has been inmate No. 1187055 at Georgia’s Burruss Correctional Training Center, a medium security prison located less than an hour south of Atlanta. In the wake of his conviction, the Georgia legislature enacted a revised “Romeo and Juliet” exception to its age-of-consent law.
Under the state’s new law, the victim has to be at least 13-years but less than 16-years-of-age; the perpetrator must be 18-years and no more than four years older than the victim. Under this exception, teens convicted for consensual oral sex would be charged with a misdemeanor and receive a sentence not exceeding one year and would not be placed on the sex offender registry.

Given the changes in state law, Wilson would have been convicted of a misdemeanor. In light of this, in June, a Georgia judged ordered Wilson released. However, the state’s attorney general, Thurbert E. Baker, an African-American, appealed the release and Wilson remains in prison.

As the case currently stands, there are two options. One involves the state legislature making the “Romeo and Juliet” exception retroactive. Last year, with appeals from former President Jimmy Carter, African-American clergy and politicians, and even some of the jurors who originally convicted Wilson, the legislature failed to approve the effort to make the exception retroactive.

The other option involves the state Supreme Court overruling the attorney general’s appeal. The court recently heard the appeal and a decision is awaited. This remains the most likely option for Wilson to get out of prison.

However, as this formal legal process has been going on, the case moved from the tragic to the absurd. Douglas County district attorney McDade distributed DVD copies of the New Year’s Eve video to state legislators in a ham-fisted effort to block legislation that could have freed Wilson. The U.S. attorney for Georgia, David E. Nahmias, who U.S. attorney general Alberto Gonzales has not yet removed, noted that the distribution of the videotape “constitutes child pornography under federal law.” Nahmias demanded that McDade stop distributing the video, but has not revealed whether he will prosecute McDade for distributing child porn.

* * *

Age-of-consent laws have a long and varied history in the West. In the medieval Europe, the earliest age-of-consent was set for girls at 12-years-old under England’s 1275 Statutes of Westminster. The British laws sought to assure the chastity of the female child entering into a marriage agreement. Until recently in the secular West (and persisting in some parts of the developing world), female virginity was a form of property valuation.

By the latter-part of the 19th century in both Britain and the U.S., age-of-consent became a major political issue. In the U.S., the Christian evangelical “social purity” movement (which culminated in Prohibition) waged war against female exploitation and prostitution (“white slavery”) as much as against the growing culture of female sexual pleasure.

Urbanization, industrialization and immigration/migration contributed to a new American culture, one that involved the redefinition of gender and sexual identities. Women were not simply being turned into sexual commodities through fashion, advertising and the media, they were also experiencing themselves in a profoundly new way, as sexual beings. This was very threatening, especially among young women.

California was one of the first states to raise the age-of-consent. In 1889, it raised it from 10-years to 14-years and then, in 1897, raised it again to 16-years; in 1913, it raised it to its current level of 18 years-of-age.

In the post-World War II era, especially as the ’60s-’70s sexual revolution took shape, the battle over age-of-consent was redefined. This took place against a background of new contractive techniques (i.e., the pill), the Row v. Wade decision and the rise of a reinvigorated feminist movement. Unfortunately, feminist and liberals often joined with religious conservatives to restrict the sexuality of young people. The new battle replaced the demand to preserve a young girl’s chastity by the need to protect her as a vulnerable minor. Either way, the unstated effort was to de-sexualize the young girl (to say nothing of the boy).

Ironically, during the ’60s, the issue of youth sexuality found unexpected expression as part of President Johnson’s “war on poverty.” After nearly two decades of struggle, liberals sought to address a critical aspect of poverty by restricting what they identified as “excess fertility.” They were shocked by the relatively high birthrate among unmarried women (and especially adolescent girls) dwelling in America’s black ghettos. These “sex police” liberals linked halting premarital sex with their efforts to end poverty.

By the 1990s, the militant Christian movement further redefined the battle over age-of-consent. Fury over social hot-button issues like abortion, gay marriage and stem-cell research was applied to youthful sex. Where once consent was an issue of chastity and, then, youthful vulnerability, by the ’90s it was reframed in term of teen-pregnancy and abstinence.

The Christian right was (and is!) terrified by youthful sexual hedonism. The wildness of adolescents promoted by the cultural distraction industry (i.e., a consumerism measured by the cumulative impact of fashion, advertising, music, movies and TV) is irreconcilable with puritan virtues.

This new climate of moral jurisprudence has combined with age-old Southern racism and the very deep panic among some whites about sex between a black male and white female, no matter what age, to keep Genarlow Wilson in prison.

* * *

A 2004 report prepared for the U.S. Department of Heath and Human Services by the Lewin Group, “Statutory Rape: A Guide to State Laws and Reporting Requirements,” finds that, nationally, age-of-consent laws for sexual intercourse and, by extension, other sex acts range from 16 to 18 years-of-age. According to the report, the age-of-consent is “the age at which an individual can legally consent to sexual intercourse under any circumstance.” Age-of-consent laws for the fifty states and the District of Columbia are a crazy quilt: thirty-three adhere to 16-years, six to 17-years and twelve to 18-years of consent.

These different age-of-consent standards are, in tern, complicated by a three additional age-related considerations: (i) the age of the victim, (ii) the age difference between the victim and the defendant or perpetrator and (iii) the age of the defendant. These age factors are further modified by individual state requirements.

Most states set the age of the victim from 14-years to 18-years; however, in South Dakota it is 10-years and in Alabama 12-years-of-age. Most states set the age difference between victim and defendant at two to five years; however, Utah sets the difference at ten years. Finally, the minimum age of the defendant range from 16-years to 24-years; however, West Virginia sets it at 14-years if the victim is 11-years-of-age. [U.S. Department of Health and Human Service, December 2004]

Age differences are complicated over the viewing of “adult” materials. While the age-of-consent for sexual intercourse is 16-years to 18-years, viewing porn is 18-years for forty-four states and the District. However, for seven states (Alabama, Idaho, Maine, Oklahoma, Oregon, Vermont and Washington) viewing porn is restricted to those at least 21-years-of-age. Oh yes, one can imagine a U.S. (male) soldier 18 to 20 years old returning from the battlefield of Afghanistan or Iraq being arrested for viewing porn.

These age differences are further complicated by the sex act involved. While most age-of-consent laws are addressed principally to sexual intercourse, noncoital sex can involve mutual masturbation, oral sex and anal intercourse. Preliminary research reporting indicates that, in the face of an aggressive conservative Christian campaign promoting abstinence, there has been an increase in noncoital sex, especially oral sex, among teenagers.

A 2005 study, “Oral Versus Vaginal Sex Among Adolescents: Perceptions, Attitudes, and Behavior,” lead by Bonnie L. Halpern-Felsher, Ph.D., and associates, found that “[a]dolescents evaluated oral sex as significantly less risky than vaginal sex on health, social, and emotional consequences.” They add,” [a]dolescents also believed that oral sex is more acceptable than vaginal sex for adolescents their own age in both dating and nondating situations, oral sex is less of a threat to their values and beliefs, and more of their peers will have oral sex than vaginal sex in the near future.”

Statistically, more study participants admitted having oral sex (19.6%) than vaginal sex (13.5%) and more intended to have oral sex in the next six months (31.5%) than vaginal sex (26.3%). [Pediatrics, April 2005, pp. 845-851.]

Most states set age-of-consent for heterosexual oral sex (i.e., male-female and going either way) at 16-years to 18-years comparable to sexual intercourse. However, these laws get even more complicated when the oral sex takes a homoerotic form whether it be male-male or female-female encounter. Based on 2001 data (which may well have be revised), homoerotic oral sex among minors (under 18-years) was illegal in twelve states, fourteen states had no applicable law and the rest set it at between 16-years and 18-years; however, New Mexico placed the age of homoerotic oral sex at 13-years, while heteroerotic oral sex was 17-years.

* * *

American sex policy, especially involving adolescents, is a literal battleground. The legacy of the Christian right’s puritanism hangs over the nation like a decaying slaughter-house death stench. Innumerable state and local governments cloned Bush administration security efforts into programs intended to limit personal sexual freedom, especially youthful sexuality. Nevertheless, conservative state legislations attempts to regulate the personal lives of an increasingly sophisticated youth population are facing growing resistance.

This resistance is much like the general public’s revulsion at the Bush administration’s policies in Iraq, its failure over Katrina and its attitude about global warming. More and more Americans realize that the dominant conservative Republic regime is based on false hopes and contemptible lies. Unfortunately, like the Supreme Court, the legacy of the Christian right will linger on far longer than its hold on state power.

In Kansas in 2000, Matthew Limon, who was diagnosed as “borderline intellectual functioning,” had just turned 18-years-old when he was arrested for aggravated child molestation for having oral sex with a nearly 15-year-old — but this youth was a boy! Limon was sentenced to 206 months (17-plus years). Had Limon had sex with a girl, he would have been released under a “Romeo and Juliet” exception.

In 2004, two Florida adolescents, a 16-year-old girl and a 17-year-old boy, took digital photos of themselves nude and having sex. They then sent the photos via an email account from the girl’s computer to the boy’s email address. Somehow, the Tallahassee police got possession of the photos and both young people were arrested and charged with producing, directing or promoting photographs featuring the sexual conduct of a child.

The Florida Appeals Court in February 2007 upheld the charge against the girl. It’s rationale? Either the boy or girl could sometime in the future sell their pictures to child pornographers or show them to friends. American justice at work.

Last year the Utah Supreme Court took on a case in which a 13-year-old Ogden girl was charged with being both an offender and a victim for the same act; she was caught having consensual sex with her 12-year-old boyfriend. In punitive American justice fashion, both were found guilty of violating a state law that prohibits sex with someone under 14-years; she was the victim in the case against the boy, he was found guilty of the same violation by engaging in sexual activity with her.

A hopeful note, last year the California Supreme Court overturned a law requiring an adult who engages in oral sex with a minor be registered for life as a sex offender.

* * *

The American court system is a conservative social institution. It is controlled by aging white men whose sexuality was formed, for better or worse, a half-century ago. Nevertheless, their legal decisions must be placed against equally significant social developments that are often driven by the young people they not only judge but, a half-century in the future, will supersede them.

This future portends to be something quite different. According to a 2003 survey by the Centers for Disease Control, nearly half of all U.S. students in grades 9-12 have had sex. In addition, between 1995 and 2002, U.S. teen pregnancy rates declined by almost one-quarter (24%).

In another study by John Santelli of Columbia University’s Mailman School of Public Health (with Alan Guttmacher Institute support), “Explaining Recent Declines in Adolescent Pregnancy in the United States: The Contribution of Abstinence and Improved Contraceptive Use,” the evidence suggest that the United States is following patterns seen in other developed countries: The increased availability and use contraceptives significantly contributes to the decline in teenage pregnancy rates. [See “Bush’s Domestic Sex Policy: The Teen Abstinence-Only Crusade,” Counterpunch, January 12-14, 2007]

In the wake of new evidence and the self-evident failure of Bush-backed abstinence-only campaign, states across the country have begun to revise laws involving the prosecution of teens for sex offences. For example, all states are required to adopt the Adam Walsh Act of 2006 that standardizes sexual offender and registration laws. It also exempts teens convicted of consensual sex if the age difference is no more than four years and the younger participant is at least 13-years-old.

Other state actions suggest things are changing. Texas revamped how it classifies youthful sex offenders; Arizona intends to end registration for some convicted teens; Oregon will not require registration if the sex partners are no more than five years apart in age; in Florida, teens may petition to keep their names off the registry if the age gap is within four years; Indiana will not prosecute teens if they are in a “dating relationship” and the age gap is four years or less; and Connecticut will not prosecute if the age gap is three years or less, up from two years. [USA Today, July 25, 2007]

In the face of these developments, one can only hope that the Georgia Supreme Court will rule against the state attorney general and release Genarlow Wilson. For more information about the Genarlow Wilson case, see www.wilsonappeal.com.

DAVID ROSEN can be reached at drosen@ix.netcom.com


David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.