Wilson Updates

There have been a lot of recent posts and articles about the Wilson case.

Abyss2hope asks "Where are the Wilson Defenders?" in analyzing an unusual statutory rape case where the person who reported being the victim is now being called the perpetrator.  So abyss2hope argues:

Everyone who has come out in support of Genarlow Wilson had better come out in support of this girl if they want to be viewed as having a credible position on statutory sex crimes and not be seen as people who simply want to let boys and men off the hook.

The age difference in this case is much narrower (only months) and while Genarlow was also charged with rape (and later found not guilty on that charge), this time it is the girl who reported sexual violence committed against her.

The boy allegedly used force once the girl complied with his request for oral sex. If you are pushing someone's head down until they are choking, you are making a deliberate decision and you are choosing to cross the line from mutual to violent -- if you hadn't already crossed it in your efforts to get the other person to comply to the sexual contact you wanted. This is true whether you are 13 or 31.

I'm not sure I see the exact parallels between the two cases (but I'm open to persuasion).  The thing that has upset a lot of us about the Wilson case was the incredibly severe sentence (10 years).  That sentence was especially harsh because the Georgia legislature subsequently amended the statutory rape statute under which Wilson was prosecuted, but did not apply that change retroactively.  I don't know of any law bloggers arguing that Wilson did nothing wrong.  Rather, the sentence did not match the crime and the legislature's rationale for not applying the law retroactively seems a little odd (notice how legislatures seem all too eager to apply restrictions on sex offenders retroactively, but when the law is "soft on crime" that willingness disappears).

Sentencing Law & Policy sees "Prosecutors gone wild" and points to this AP article:

David McDade has handed out some 35 copies of a video of teenagers having sex at a party.  McDade is no porno kingpin, but a district attorney.  And he says Georgia's open-records law leaves him no choice but to release the footage because it was evidence in one of the state's most turbulent cases — that of Genarlow Wilson, a young man serving 10 years in prison for having oral sex with a girl when they were teenagers.  McDade's actions have opened him up to accusations that he is vindictively misusing his authority to keep Wilson behind bars — and worse, distributing child pornography.

The child pornography distribution accusation is particularly interesting and has led to a discussion around the legal blogosphere.  How Appealing has a couple posts linking to articles about the accusation.   Corrections Sentencing was ahead of the curve and posed the question about child pornography distribution before it hit the media and then got the answer.  At Volokh Conspiracy, Eugene Volokh posted a series of comments and questions about the prosecutor's actions:

The distribution of such material would indeed normally be child pornography; and the federal child pornography ban would preempt any state law to the contrary. The questions, I take it, would be:

(1) Is there some implicit exception to the federal law as to videos such as this one, and what is its scope? I take it that there must be some such exception, or else the video couldn't even be handed from the police to the prosecutor in federal enclaves, such as D.C., but the question is whether the exception extends to distribution to the media and to legislators.

(2) Should the First Amendment be read as mandating an exception for videos and photographs that are evidence in a criminal trial, and seeing which may be helpful to understanding whether justice was done in the criminal process (which is to say whether the sentence was substantively sound, not just whether the procedures were followed) -- and, again, what should the scope of the exception be?

(3) Is there some state sovereign power limit on federal law, where the distribution or possession of the material is part of the state government's law enforcement process (this would apply to, for instance, e-mailing or mailing material within the prosecutor's or police department's office) or as part of the state government's compliance with its own public records laws?

I don't know what the answers to these questions are, but the issue struck me as worth flagging.

Orin Kerr attempted to answer the key question posed by Volokh:

In response to Eugene's post below, about law enforcement possession and distribution of contraband, this post from my now-abandoned solo blog might be helpful. (Unfortunately the comments there are down, but you can get the gist of them — and particularly Marty Lederman's answer — from the update.)

Here's the key language from Nardone v. United States: according to Nardone, there is an "implied exclusion" for "public officers," "where a reading which would include such officers would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm." It's not really clear to me how this would apply to the McDade case, and I don't know if there are any later cases on how this applies (I haven't found any, but I didn't look very hard.)

I don't think Kerr is addressing what happened in this case (and I'm not sure he is trying to).  The prosecutor here released the tape to the media and public.  The interests of justice did not require such a disclosure (in fact, such disclosures are often antithetical to a fair trial if the release is pre-trial).  The normal exclusion doesn't apply.  The prosecutor has since changed his mind and asked everyone who released the tape to return or destroy it.  However, I still think a crime has been committed.  The state open records policy is not a defense to a federal child pornography prosecution (although it should certainly offer a mitigation defense).  Notable to child pornography law in particular is the notion that each viewing of the pornographic image re-victimizes the victim.  The Adam Walsh Act's restrictions on defense access to evidence is entirely premised on this idea.  These restrictions have even led some defense lawyers to argue (unsuccessfully) that the statute actually would prohibit introduction of child pornography evidence to the jury.  For the prosecutor to just hand this tape out, which seems to clearly fit the definition of child pornography, should result in a criminal prosecution.  It probably won't, but I really think a good message could be served by at least charging the prosecutor in this case.  Child victims shouldn't have to go through the pain of having large sections of the public view their victimization (as has happened in the R. Kelly case).

Comments

[jdh]

Applying the federal law to the prosecutor is a stretch. While the material on the tape may very well be child porn, the prosecutor isn't engaged in interstate commerce. Thus the federal ban doesn't apply. I'd imagine Georgia has its own state laws against child porn, but the open records law seems like a dispositive defense. Thus people who received the tape from the prosecutor are perhaps in jeopardy, but the DA himself isn't.