Wendy Whitaker, 29, has been on Georgia’s sex offender list for more than 12 years. Her crime? She performed oral sex on a high school classmate just after turning 17. The boy was just shy of his 16th birthday. Both were sophomores. Whitaker is now suing, claiming that given her crime, her sex offender status is cruel and unusual punishment.
After the international uproar associated with the Genarlow Wilson case (Wilson, you’ll remember, was convicted of a similar crime—having consensual oral sex with a 15-year-old while he was 17 [link]), Georgia’s legislature clarified state law to prevent these sorts of cases—what Whitaker did 12 years ago is no longer a crime in Georgia. But because some Georgia lawmakers stubbornly wanted to keep Wilson in jail, the legislature took a separate vote to keep the law from applying retroactively. Wilson and Whitaker are still convicted felons. Whitaker’s suit cites the Georgia Supreme Court’s ruling in Wilson’s case, which found that Wilson’s 10-year sentence and mandatory sex offender status amounted to cruel and unusual punishment.
It gets worse. Whitaker is being evicted from her home. A nearby church is running an unadvertised daycare service. Georgia’s law prevents sex offenders from living within 1,000 feet of schools, churches, swimming pools, school bus stops, day care centers, parks, recreation centers or skating rinks. At a November 13 hearing, U.S. District Judge Clarence Cooper declined to halt Whitaker’s eviction:
[The] law was truck down by the Georgia Supreme Court last year, giving Whitaker a brief reprieve. But Georgia’s legislature then passed a revised law earlier this year, one lawmakers apparently believed is in compliance with the state supreme court’s decision, but that still manages to rope in Whitaker. Last week, she was told she has to move out of her home by Thanksgiving. If that happens, she’ll likely have to foreclose.
Judge Cooper accepted the state’s contention that finding a new place to live represented an “inconvenience” for Whitaker rather than a banishment from her home county. The AJC says the real offender in this sex case is the Georgia law:
Describing what is happening to Whitaker as an “inconvenience” is a grave understatement. After plotting all the property in Columbia County, a researcher testified that registered sex offenders could legally reside on only about 1.2 percent of all the parcels in the county, assuming there were even rental housing available on those parcels.
Whitaker fought back tears when the court ruled against her. She testified that her home will go into foreclosure now because she and her husband cannot afford to pay rent somewhere else and the mortgage.
“A teenager shouldn’t be punished in perpetuity, especially one who poses no threat to society,” said Whitaker’s attorney Sarah Geraghty.
Most of the bills that the Legislature enacts are pantomime — symbolic acts designed to give the appearance of decisiveness. But, sometimes, lawmakers blunder into acts of real and grievous consequence, including the sex offender statute.
The law has no provision for differentiating between serious offenders and teenaged paramours. The law has lost several court challenges:
With all of the successful and costly legal challenges to the law, common sense might suggest that the General Assembly reconsider its haste in passing it and rewrite the law to reflect the difference between the youthful indiscretions of teenagers, such as Whitaker, and the predatory acts of dangerous deviants.
The law should create a graduated scale of restrictions, leveling the toughest limitations on the most dangerous offenders rather than on people like Whitaker. That would free up law enforcement officials to focus their time and attention on those truly dangerous offenders.
The public has no problem understanding the difference between Whitaker’s offense and those of true child predators. Why can’t our legislators?
Via Walter Olsen, “As Georgia ‘sex offender’ horror stories go, Wendy Whitaker case may outdo Genarlow Wilson’s.”