Wednesday

Consentual Oral Sex Nets 10 Year Sentence

Thanks to SC, who sent me an article about the recent Georgia Supreme Court Decision that upheld a 10 year mandatory minimunm sentence for an 18 year old high school graduate found guilty of having consentual oral sex with a girl less than 4 years younger than he was.



The sentence is particularly tragic because starting Saturday, there will no longer be a 10 year mandatory minimum for such conduct. All of which makes me think that there's a point at which abstraction to legal generalities often just obscures the capricious ruination of otherwise valuable lives. And that seems to me to just be tragic.

6 comments:

Anonymous said...

I was Josh Widner's appellate lawyer. This case was similar to the Marcus Dixon case, a well-publicized case involving a superstar athlete. Unfortunately, Josh (a poor kid from the southside of Atlanta) got a different result.

Anyway, I enjoyed your presentation at GACDL last Fall. Your work is inspiring even on days when I get results like this one.

--Scott Key

Tom McKenna said...

I always get suspicious when Feige does not link or give any factual background. It would have been simple to do: http://www.dailyreportonline.com/Editorial/PDF/PDF%20Archive/a_m_p_06_26_06_001.pdf

Some facts would help clarify the situation: this guy was repeatedly told by the fourteen-year old girl's parents to leave her alone, and yet he contrived to meet her, with another man so the two men could have sex with her. Despite his lying protestation to the contrary, these parents told him the girl was only fourteen.

The convict did not simply commit oral sodomy, but also had intercourse with her. So he was not just charged with "consensual oral sex," but with statutory rape also.

If you read the opinion, it is unremarkable in that it restates very well-known and common principles: the legislature decides penalties, and they are not cruel and unusual as long as the trial court remains within the statutorily permissible range of punishment. It's hard to imagine how a mandatory sentence for a sexual crime against a minor could be viewed as inherently "cruel and unusual."

Lastly, this is not the Dixon case, which involved an inconsistency in the Georgia statutes resulting in an unfair trial that contravened what the Georgia Supremes thought the legislative intent was: Dixon was only guilty of a misdemeanor statutory rape but the inconsistency allowed the state to charge him under the aggravated child molestation charge with a ten year mandatory sentence for the same conduct.

Of course, Mr. Key knows all these details much more intimately than I do.

Facts are more enlightening than rhetoric. You guys must not have daughters or little sisters.

Indefensible said...

Thanks so much Scott.

And Tom--all fair criticisms (except the last--I've got two little sisters...)

However, as you can see, my beef here isn't with the legalities--it's with the capricious nature of how the law is appllied. Next week there won't be a mandatory minimum for that crime, but this kid got sentenced just a touch too early. Whatever the balance of powers arguments are, that just feels wrong.

Tom McKenna said...

I concede that it seems harsh to be the last guy to get the 10-year hit right before the law changes. That's where prosecutorial discretion might have come into play, but it seems from the news account that the prosecutor did not want to go against the girl's parents wishes. I've been there, but sometimes you have to simply tell a victim "I understand where you're coming from, but I'm going to do what I think is appropriate."

Anonymous said...

I do have a daughter. If I were ever in the girl's parent's shoes, I would want punishment, too. I don't condone the behavior, but I believe that ten years without parole is harsh, as did the Georgia legislature (by far not a pro-defense bunch). One of the factors for determining whether punishment is cruel and unusual is whether mores have changed. What better evidence than the change to a misdemeanor?

Another fact. Had this been intercourse, there would not have been a ten year minimum mandatory. The fact that it was oral sex gave rise to the 10-year minimum mandatory.

Another key distinction between this case and Dixon is that the girl in Dixon claimed (and still claims) she was raped. The girl in this case testified at trial that this was a voluntary act on her part.

The Dixon case is interesting to read. It is a result-oriented opinion (as argued in the dissenting opinion). It is obvious that the Supreme Court was bending over backward to give Dixon a break. Dixon had been interviewed on Oprah; groups had picketed the Supreme Court buiding in Atlanta.

Of course, it may come down to this:

I came to like Josh during this process. I did not relish the phone call to his mother telling her that we lost. I think that it is shame that this young man's life is essentially down the tubes because he had oral sex instead of intercourse.

FightforJustice said...

What penalty would be appropriate under the circumstances? I don't think he should get off scott free. I have a daughter just a year older than the victim in this case. If a man four years older commits statutory rape, let him face the consequences.