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), 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.
The question is whether the court will consider the registration requirement in and of itself cruel and unusual punishment for people convicted of consensual oral sex as minors before the law was changed.
Whitaker is also involved in a second lawsuit—this one to keep her house. In 2006, she and her husband scoped out neighborhood surrounding the Harlem, Georgia home they eventually purchased to be sure they were in compliance with Georgia's sex offender law at the time. That law prohibited offenders from living within 1,000 feet of any area where children congregate. Despite their efforts, local authorities ordered Whitaker and her husband to vacate shortly after they moved in. They had overlooked a nearby church, which was running an unadvertised daycare service.
That law was struck 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.