ATLANTA – A man sentenced to 10 years in prison for having consensual oral sex with a 15-year-old girl when he was 17 should have to serve out the widely criticized mandatory term, a prosecutor told a judge Wednesday.
A lawyer for Genarlow Wilson, now 21, asked the appellate judge to throw out the aggravated child molestation sentence on the grounds it is grossly disproportionate to the crime. Defense attorney B.J. Bernstein noted that state lawmakers passed a law to close the loophole that led to Wilson's sentence.
"It gets back to common sense," Bernstein said. "This very act is only a misdemeanor with no sex offender registration today."
But prosecutor Paula Smith argued that the new law cannot be applied retroactively.
"The General Assembly did not make it retroactive," Smith said. "They had the prerogative to do so; they did not."
Wilson, clad in a white prison uniform, watched as his legal team again tried to free him while they pursue a claim that his constitutional rights are being violated. Monroe County Superior Court Judge Thomas Wilson said he expects to issue a decision on Wilson's appeal by noon Monday.
Wilson's sentence has been denounced even by members of the jury that convicted him and the author of the 1995 law that put him behind bars.
"The law was designed to protect kids against really, really bad people doing very bad things," said the sponsor, former state Rep. Matt Towery, a Republican. "It was never intended to put kids in jail for oral sex."
In 2003, Wilson was an honors student, standout athlete and homecoming king preparing for his SATs with an eye toward college. At a New Year's Eve party involving alcohol, marijuana and sex, someone videotaped the girl performing oral sex on Wilson.
The tape also shows Wilson and other male partygoers having sexual intercourse with a 17-year-old girl. Prosecutors sought a rape conviction against him, arguing that the 17-year-old was semiconscious and not capable of consent. But a jury that watched the tape disagreed.
Bernstein compared the case to the recent rape case involving Duke University lacrosse players, saying prosecutors in both cases overreached.
Wilson has served more than 27 months in prison. His case has become something of a cause celebre, largely because of the legal loophole that ensnared him.
If Wilson had had sexual intercourse with the 15-year-old he would have fallen under Georgia's "Romeo and Juliet" exception. But under the law in 2003, oral sex between teens constituted aggravated child molestation and carried a mandatory sentence.
Georgia lawmakers changed the law in 2006 to make consensual oral sex between teens a misdemeanor punishable by a maximum of one year behind bars. Offenders do not have to register as sex offenders, as Wilson will be required to do.
But the state's top court ruled the 2006 change couldn't be applied retroactively to Wilson's case. An attempt earlier this year to pass a bill that would provide a remedy for Wilson has stalled.
Wilson's most vocal critic has been Georgia's top Republican senator, Eric Johnson, of Savannah.
"This was not two star-crossed lovers on a date," Johnson wrote in an opinion piece opposing the bill written to help Wilson.
The five other male partygoers took plea deals. Wilson's case was the only one that went to trial.
Wilson's mother, Juannessa Bennett, said outside the courthouse Wednesday that he has rejected plea deals from prosecutors because he would still need to register as a sex offender.
"A sex offender registry is lifetime," Bennett said.