Don’t expect any conclusions here. 

Elizabeth Wood at SITPS has talked about the case of Genarlow Wilson in the past, and today she writes about a Times editorial on the case:

the Times chastises the DA in the case for continuing to focus on the rape that occurred at that party (of which Wilson was acquitted) and even circulating the video that was made of the rape, as part of his lobbying effort against Genarlow Wilson’s release. This after the legislature in Georgia corrected its own laws to make the sex that Wilson had a misdemeanor rather than a felony as it was when he had it.

Wilson was convicted of a felony offense and will have to register as a sex offender for the est of his life as a result of the conviction.  His “crime” was having consensual oral sex with a 15 year girl when he was 17.  The state of Georgia has since changed their laws so his “crime” would be a misdemeanor rather than a felony, but the state has refused to change the law in such a way that Wilson could have his case appealed – he is grandfathered in as a felony sex offender for an act that is no longer a felony.  He was 17 when he was arrested.  I’m not clear why Georgia considers consensual oral sex between teens a crime, but he was convicted of Aggravated Child Molestation.

Georgia now has a Romeo and Juliet law that limits the punishment in the case of consensual oral sex between teens – no more than 12 months in jail and they do not have to register as sex offenders.  This law was written and passed, at least partly, in response to Wilson’s case.  The Wilson website is educational – head on over for a read, including a post concerning statements made by the sponsor of the law under which Wilson was convicted.

Age of consent laws assume that at the age of 18 you are able to give meanginful consent and before that you are incapable of giving such consent.  It’s not unheard of for teens to be accused and sometimes convicted of statutory rape for having sex with their boy/girlfriend who is under 18;  they’ve had sex before, but one of them is 17 and the other has had a birthday and is now 18.  Sex is suddenly a felony offense.  A few years ago, I worked with a man who had been convicted of a statutory rape; at the time he ws 19, in a bar with a fake ID, met another person in the bar, had sex and later learned that person was 17.  He was convicted and served time in prison for rape.  I’m not sure such cases are consistent with any definition of justice.

In an attempt to protect child from sexual abuse and molestation, we’ve created a legal web that catches far too many people who were in morally gray areas.A 22 year old clearly should not be dating or engaging in sexual behaviors with a 13 or 14 year old.  Certainly, someone over 30 should never have sexual contact with someone under 18.  That’s easy.  But what about an 18 year old and a 16 year old?  What about a 19 year old and a 17 year old.  Or someone who is 20 with someone who is 17?  My parents are almost 6 years apart in age.  Some couples are 20 or 30 years apart in age.  In terms of emotional maturity, girls develop faster than boys; a 17 year old male might be as emotionally mature as a 15 year old female; in terms of their ability to understand what they’re consenting to, perhaps their equals.  Consent is more complicated than age.

The concept of age of consent laws is simple – a person should be mature enough to understand what he/she is agreeing to, to understand the consequences of their choice and to deal with them.  Our system however recognizes that because of developmental disabilities or mental illness an individual may not be able to consent and therefore protects persons in such situations (proving they cannot give consent is not easy but can be done legally).  As people, it’s not uncommon for their families to step in and make decisions for them.  A person can be declared legally incompetent due to Alzheimer’s or Senile Dementia.  A person suffering from mental illness might give a verbal yes to some treatment or act because they are delusional – an act in which a non-delusional person would refuse to participate.

Verbal consent is clearly not the only form of consent.  As an example, a couple are on a date; they go to someone’s house, get undressed, get in bed, start engaging in sexual behaviors (kissing, touching, exploring); if one partner decides not to have intercourse but stay in bed and doesn’t say anything, the other partner, based on their behavior would not unreasonably conclude that they had consented to intercourse.  A person can say “no” but act “yes”; such circumstances seem to arise from internal conflicts when a person might want to have sex but believe they shouldn’t or might not want to hurt the other person but not know how to negotiate what they want, or simply not know what they want.  Women especially struggle with societal messages; a woman who prepares for sex by having protection on hand is a slut, but a woman without such protection and ends up pregnant is stigmatized as well.  There’s no easy out.

Consent is given for all kinds of complicated reasons.  Clearly, if someone has a gun to your head it’s better to consent to a sexual act than die.  But sometimes the “gun” in question is emotional leverage; you’ll be alone unless you are with me.  Can a person give any kind of meaningful consent in such a circumstance?  Adults often have sex for all kinds of “wrong” reasons.  Over at her place, Debra Haffner wrote about the Randall Tobias scandal:

I also wonder, as I always do when I read about a Tobias, a Haggard, a Limbaugh, a Barnes, just to name a few, how it is that these men ignore the basic characteristics of a sexually healthy adult- one of which is to only engage in sexual behaviors that are life enhancing rather than those that could be destructive to oneself or others. That’s not sophisticated morality — but it would indeed be a start.

 The idea that sexuality should be life-affirming is a basic tenet of United Church of Christ sexuality curricula – both Our Whole Lives and Created in God’s Image.  Consent is a huge component of life giving sexuality.  Coercion, rape, assault are not consistent with the value of life affirming sexuality.  But people engage in sexual behaviors for all kinds of reasons – loneliness, horniness, desire to be loved, desperation, boredom.  I’m not sure how consent figures into these activities.  As an adult, it is assumed your are capable of giving meaningful consent.  But if you just broke up with your spouse, get blind drunk and pick someone up in a bar, have you really consented to sex in a meaningful way?  Is it life enhancing?  Or is just plain old fashioned screwing – not that there’s anything wrong with that.

A while back, Hugo Schwyzer wrote about his idea that attraction for him seems to be about a ten year span around his own age.  Much younger and much older women don’t hold his attraction.  However, he knows many men his age (closing on 40 fast) who flirt with and try to date the college age baristas at Starbucks.  He also points out that for many men (and probably women as well) having someone college age flirt with you as your near or pass 40 is a way of affirming that not only are you attractive but that you are holding onto the limitless possibilities of youth.  Many younger persons prefer to date older persons; I know people in their 50s and 60s who often date people you are 20 or 30 years younger.

So many older men hit on younger women for reasons that have little to do with sex and everything to do with a profound desire to reassure ourselves that we’ve still got “it.”  “It” isn’t just physical attractiveness; “It” is the whole masculine package of youth, vitality, charm, sex appeal, and, above all else, possibility. When a 19 year-old flirts with a 39 year-old (as Sean thought the barista was flirting with him), it feels like the world is reassuring the fella that there’s still time, there are still new opportunities, still a chance to be young.  What was so painful to Sean –even as he laughed about it — was that while he imagined the barista saw him in the category of “potential boyfriend”, she saw him as “potential step-dad.”  Where he wanted to present himself as filled with erotic potential, she apparently saw him as “safe” and “nice” and “perfect for my mom.”  He was using  Starbucks gal as a gauge to measure whether he still had “It”, and she gave him a very clear answer: No.

(I realize that may seem like a non-sequiter.)

Here’s where I’m going.  Reading the details of the case, it seems clear to me that Genarlow Wilson showed poor judgement.  But in terms of age, I think a 17 year old and 15 year old are close enough age and developmentally that it should not be a crime for them to engage in consensual sexual behaviors.  Age alone is a poor determinant of the ability to give consent.  By the same token, developmentally, boys and girls are a different track.  I’m not certain what the difference is, but in some ways, the 14 year old girls I know seem more developmentally advanced than the 15 year old boys.  By 18, they seem about equal.  But many boys seem to have another developmental jump at about 19 or 20 (I grew an inch between my first and second year of college).  It feels to me as if 21 is about the point at which men and women reach developmental parity.

I realize there is no way we can establish a develpmental test for consent.  It seems to me that age alone is entirely too arbitrary a measure.  Until we figure out a better way to talk about and understand sexuality and sex as a society, people like Genarlow Wilson are going to find themselves caught in a Kafkaesque circumstances – accused, labelled, incapable of proving themselves not guilty, presumed to be guilty.