Sex, Laws, and Videotape (Genarlow WIlson Edition)

Genarlow Wilson, you may recall, is the young man sentenced to a 10-year mandatory sentence in Georgia for occurrences at a wild hotel room New Year’s Eve party with other high schoolers when he was 17 years old. He was acquitted of raping a 17-year-old girl who said that she was intoxicated and that her intercourse with Wilson was not consensual. He was convicted, however, of engaging in oral sex with a 15-year-old girl, even though all agree that encounter was consensual, because she was below the 16-year-old age of consent. (Moreover, the fact that they had oral sex in particular triggered a much more severe penalty than would have applied to intercourse, a quirk in Georgia law that the Legislature has since changed). The trial judge recently ordered Wilson released, calling his sentence “a grave miscarriage of justice,” but that order has since been appealed. Meanwhile the case has become a cause celebre, drawing comment from Jimmy Carter to Barrack Obama and, inevitably, spawning a web site and legal defense fund.

Clearly, there are dozens of possible legal blog posts embedded in this story: gender, race, sentencing, statutory rape and strict-liability crimes, the judge’s proper role in such circumstances. But I am going to focus on an information law angle — specifically, does the law require the release of a videotape at the center of the legal case, as the Georgia D.A. says, or forbid it, as the U.S. Attorney says?


The events of the party were videotaped, and as ABC News Primetime reported last year, that tape became the core of the prosecution’s evidence:

District Attorney David McDade said the videotape was critical to his case. “There is no doubt that without the videotape we would have to be relying on the statements of these young people, and that would have been a more difficult prosecution,” he said.

But, as my friend Jessica Silbey has argued persuasively in a series of articles, videotaped evidence is not some sort of unvarnished and incontrovertible truth-telling mechanism; its meaning is in the eye of the beholder. And the jurors here beheld it this video quite differently from the way prosecutors intended. According to ABC, they voted to acquit Wilson of raping the 17-year-old very rapidly:

“I mean it wasn’t even an hour [of deliberation on the rape charge],” said jury forewoman Marie Manigault. “We immediately saw the tape for what it was. We went back and saw it again and saw what actually happened and everybody immediately said not guilty.”

So, the videotape became central to both the legal decisionmaking and the media reporting (ABC, for instance, portentously described “a portion of a tape obtained by ‘Primetime'”), especially as the case has become a growing political and racial controversy. Not surprisingly, a lot of people have asked to see it, according to an Associated Press story:

[District Attorney] McDade said his office gave copies of the tape to some 35 parties that requested it, including The Associated Press, which received the tape late last month after making an open records request. Seven state lawmakers, several members of the public and numerous members of the media also received the tape.

McDade claims he had no choice under the state’s “very clear” open records law, and a letter from the Prosecuting Attorneys’ Council of Georgia supports his interpretation. But now U.S. Attorney David Nahmias has intervened with a statement of his own, saying that the tape constitutes child pornography and may not be distributed or even possessed — and advising everyone with a copy of the tape to return or destroy it.

“These laws are intended to protect the children depicted in such images from the ongoing victimization of having their sexual activity viewed by others, potentially for years to come, particularly if the images are placed on the Internet or otherwise broadly enter the public domain,” Nahmias said.

Here’s what’s fascinating to me. The antagonists on both sides cite seemingly inflexible legal regimes. The child pornography law is said to leave no space for even the clearest public interest, such as letting the media examine the evidence in a case that has become a gigantic political and social hot button. The open records law is said to allow no leeway to suppress a sex tape that probably qualifies as contraband child pornography and definitely constitutes a grave privacy violation for the teenagers depicted. This lack of ambiguity in both regimes (and, by the way, in the statutory rape law too) is not a bug but a feature. These laws were designed to prevent evasion through exceptions. Now we are stuck with a pair of unpalatable alternatives.

The optimal solution might well be to allow access to the tape with strict limits on redistribution (perhaps requiring that it be viewed in the courthouse rather than distributing copies) or perhaps blurring the faces of all the persons involved. But most likely neither of these possible solutions satisfies either of the inflexible legal structures. The only way I see of avoiding the problem is for the U.S. Attorney to exercise prosecutorial discretion and allow this sort of limited access. But I’m not sure how likely that is to occur.

[Cross-posted at Info/Law.]

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6 Responses

  1. Nate Oman says:

    If there is a conflict here, how difficult is it to actually resolve the case? It seems to me that the Supremacy Clause would make short work of the state law. After all, if Congress makes some behavior (say voter discrimination) a crime, I don’t see that there is much of a defense in claiming that one’s actions are required by state law. Of course, I am willing to be shown wrong on this point by the criminal law gurus in our midst.

  2. Nate:

    Agreed, the federal law almost surely trumps. But that’s not a fully comfortable outcome in my view. ABC and the Associated Press have to destroy the tape on which this case turns, a case that has now become a big political and social issue? And no one can see it any more? It’s just the sort of thing that open government law aims to prevent.

  3. Frank G says:

    I agree that the Supremacy Clause clearly controls. I wanted to add, though, that the concept of “open government” seems inapposite in this case. Open government is not at play when dealing with prosecutorial discretion or judicial decision making. Just because it is part of a “big political and social issue” does not mean that it ought to be made available to some or all of the interested legislators, pundits, or the public. At its root (and according to federal law), this tape depicts child pronography – public curiousity is no reason to publish it, redacted or not.

  4. Jason H says:

    William’s 9:36 post makes another interesting point. Once the media has the tape, the outcome isn’t necessarily certain under the Supremacy Clause because now the First Amendment comes into play. See the Pentagon Papers case. It seems like the time the feds could have asserted the federal obscenity laws as a Supremacy argument would have been in an injunction action to prevent the state from responding under its open records law. Now that the cat’s out of the bag, it’s not at all clear that the Supremacy Clause can function to put it back in.

  5. Frank G says:

    Jason, You are right that when the media has the tape the Supremacy Clause is no longer relevant, but the federal child pornography law in question governs possession and distribution of this tape no matter who has it. The First Amendment allows prior retraint of speech when the “speech” in question in child pornography. In the Pentagon Papers case the Court had to balance alleged national security interest against the papers’ First Amendment right to publish the information, and the Court was very sceptical of the government’s claim of risk to national security. In this case, child pornography is, on its face, child pornography, so, as I understand it, no balancing is even necessary and its supression is valid in spite of First Amendment.

  6. TJ says:

    Isn’t this a pure first amendment issue now? The Federal child pornography statute survived facial attack, so it trumps the state law. The question is whether enforcing the the child pornography statute as applied in this case violates the First Amendment. Yes the government can usually suppress child pornography, but not always. For example, artistic photos of nude children would be a close case. Here, the video is at the center of a public political debate. I doubt that the First Amendment would premit its suppression, even if it fits the definition of child pornography under the statute.