Risky business

On New Year's Eve 2003, Genarlow Wilson, a 17-year-old above-average high school student, participated in an unsavoury but not uncommon night of teenage rebellion in a hotel room. Under the influence of alcohol and marijuana, he received oral sex from a girl two years younger than himself. Later, on a day when he was preparing to sit an SAT, he was arrested and charged with aggravated child molestation. He was convicted and sentenced to ten years imprisonment with no prospect of parole and a further year on probation. He was also required to register as a sex offender, which would prevent him returning home to live with his eight-year-old sister.

Wilson was convicted under laws designed to protect children from preying adults, not fellow horny and experimental teenagers. A further quirk of Georgian state legislation meant that Wilson was punished more severely for engaging in oral sex (regarded as a felony) rather than penetrative sex (classed as a misdemeanour). The latter would have resulted in 12 months in jail. Such is the antiquity of much of US state law that as recently as 1998, husbands and wives found practicing oral sex in Georgia could receive 20 years behind bars.

Wilson's case was taken up by, among others, the New York Times, and created a sufficient stink in the US for the law under which he was prosecuted to be reformed. Oral sex between minors was reclassified from a felony to a misdemeanour. Wilson's lawyers then launched a series of appeals to have the law applied retroactively, but these were refused. In response Wilson was offered a plea bargain, in which his sentence would be reduced in exchange for admitting guilt and accepting his place on the sex offenders register. To his credit, Wilson refused. Eventually, the case was referred to the Georgian state supreme court who ruled 4 to 3 that Wilson's sentence constituted 'cruel and unusual punishment' and on 26 October, he was released.

Among the many bad smells that have circulated around the case, was the suggestion (voiced by no less a man than former president Jimmy Carter) that Wilson was unjustly treated as an African-American. There is no empirical evidence for this. Instead, Wilson is a victim of the hysteria that surrounds any case on the periphery of child sex abuse, which has become the defining taboo, the single unmentionable, of this age. No-one, be they legislators, judges or politicians, can be seen as lenient or forgiving on this issue. The result of this collective inflexibility is the torment endured by Wilson.

Further evidence can be found in the media storm that greeted British policeman Terry Grange in 2006, when he made the eminently sensible suggestion for the law to differentiate between paedophiles (who desire sex with children) and ephebophiles (who want sex with post-pubescent adolescents). The difference between the two - issue of consent aside - is that a 15-year-old girl, such as the girl encountered by Genarlow Wilson, has most likely reached sexual maturity. A child of eight, who draws the attention of a paedophile, has not. It is 'cruel and unusual punishment' to treat the two offences identically.

Wilson was a victim of an arbitrary age of consent, which overruled a girl's actions and intentions, despite her evident control over her behaviour. Due to the differing ages at which young people reach sexual maturity, any age of consent will be unwieldy by definition, but it is a necessity to protect those who are genuinely too young to understand sexual behaviour. What the Wilson case demonstrates is the trend towards overestimating the threat from paedophilia and the necessity of flexible, appropriate legislation.