January 29, 2008 By Wallin & Klarich

The recently reported pregnancy of sixteen-year-old television star Jamie Lynn Spears has drawn a spotlight on the issue of statutory rape and the different state laws that apply. While most high school aged people do not travel extensively interstate, apparently, given Ms. Spears’ occupation, and her domicile in Louisiana and the baby’s alleged father’s domicile in Mississippi, and the fact that apparently Ms. Spears and the alleged father traveled to California to enable Ms. Spears to tape her television program, this means that any criminal liability would have to be determined in the state where the potential sex act or acts occurred.

In California, if a person has “consensual” sex with a minor, and the person not more than three years older than the minor, the person has committed a misdemeanor crime. Apparently, under Louisiana law, any person over age 17 years who has sexual intercourse with a minor age 12 to 16 years, and the age disparity is more than two years; likewise the person has committed a crime. In Mississippi, however, the legal age of consent is 16 years, meaning that a person can have sexual intercourse with a person who is 16 years of age or older, and, so long as the encounter is consensual, no crime has been committed.

As to Ms. Spears’ case, many people have commented that there is little chance that the child’s alleged father will be prosecuted. Many have also noted that the state-to-state disparity in statutory rape laws, as well as treatment by local prosecutors and police, often results in unjust and disparate treatment of similarly situated offenders.

The disparity can probably be seen in the Georgia case of Genarlow Wilson. At the age of 17 years, Mr. Wilson had engaged in “consensual” oral sex with a fifteen-year-old girl at a New Year’s Eve party. Mr. Wilson was convicted of aggravated child molestation and sentenced to a mandatory term of 10 years in prison and required him to register as a sex offender upon release. The “aggravated” apparently referred to oral sex, inasmuch as, had Wilson and his “victim” engaged in intercourse, the offense would have been a misdemeanor, and would have carried with it no requirement to register as a sex offender.

After Wilson’s conviction, the Georgia legislature amended the law to bring oral sex in line with sexual intercourse – i.e., oral sex and intercourse under these circumstances would be a misdemeanor and carry no sex offender registration requirement. Mr. Wilson however, did not receive the benefit of this amendment, since the state legislature specifically stated that the new law would not be applied retroactively, meaning that Mr. Wilson’s ten-year sentence would stand.

Eventually, the Georgia Supreme Court decided to take up the case, and a majority of the Court decided that Mr. Wilson’s sentence was “cruel and unusual” especially in light of the legislature’s change in the law. The Court ordered Mr. Wilson freed. Wilson had spent roughly two years in custody on this case.

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