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Release of tape in teen sex case may violate child-porn law

  • Story Highlights
  • Federal prosecutor: District attorney should not distribute tapes
  • Recording depicts boy, 17, receiving oral sex from girl, 15
  • Boy given 10-year prison term for child molestation; law later changed
  • DA says open records law requires him to honor requests for tape
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By Ashley Broughton
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ATLANTA, Georgia (CNN) -- A federal prosecutor wants a Georgia district attorney to stop giving out copies of a videotape used as evidence in a teenage sex case that has drawn national attention.

The tape was used in the prosecution of Genarlow Wilson, a Georgia man serving a 10-year prison sentence for a consensual sexual encounter he had as a teenager.

Wilson, now 21, was convicted of aggravated child molestation for having consensual oral sex with a 15-year-old girl when he was 17 during a New Year's Eve party in Douglas County, Georgia, just west of Atlanta.

The sex act was videotaped by another partygoer -- and that tape shows the faces of several underage girls.

Douglas County District Attorney David McDade has estimated he has given the tape to about three dozen people -- including reporters, lawmakers and members of the public -- after receiving open records requests, according to The Associated Press. He told the AP Georgia's open records law requires him to do so.

That stance is supported by the Prosecuting Attorneys' Council of Georgia, which in response to a query from McDade issued a July 5 memo concluding, "[I]f no one has filed for a protection order ... claiming that disclosure of the video tape would invade individual privacy, we can find no reason why disclosure of the video tape is not required under ... the Open Records Act."

The council said in the memo, which it provided to CNN, that Georgia's open records law contains no exemption for material considered child pornography.

However, David Nahmias, U.S. attorney for the Northern District of Georgia, said earlier this week: "We have advised that the videotape at issue constitutes child pornography under federal law and should not be knowingly distributed, received or possessed outside of law enforcement and judicial proceedings."

Nahmias said Tuesday that federal laws prohibiting the distribution or possession of child pornography "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. ... These federal laws trump any contrary requirement of the state's open records act that may exist."

Nahmias' office encouraged those in possession of the tapes to return or destroy them.

A spokeswoman in McDade's office, asked by CNN whether the office has stopped providing the tape, referred questions to him Friday but said he was unavailable for comment.

CNN has requested the tape under the open records act but has not received a copy.

A Georgia state senator, meanwhile, told CNN on Friday he aims to close any loophole in the state law that would allow the distribution of the videotape.

"We have to protect our children from district attorneys," Sen. Emanuel Jones said Friday. If state law allows the distribution of the tape, he said, it or similar material could be available to anyone who filed a public records request -- even if they wanted the material for nefarious purposes.

"I believe state laws have been violated," Jones said. "I believe federal laws have been violated."

He said he plans to call the legislation, which he will introduce next year, the McDade Act.

Jones said he has asked Georgia Attorney General Thurbert Baker to investigate the matter and issue an opinion. Baker spokesman Russ Willard told CNN that Jones' request has been received, but he declined to comment further.

Wilson's case and sentence have created controversy in Georgia and beyond, drawing commentary from civil rights activist Al Sharpton and others.

Under a state law in effect at the time, Wilson received a mandatory 10-year sentence, of which he has already served more than two years.

Partly as a result of his conviction, state lawmakers changed the statute to make consensual sexual conduct between teenagers a misdemeanor instead of a felony. But the change was not made retroactive and so did not affect Wilson.

Acting on a petition filed by Genarlow Wilson's attorneys, Monroe County Superior Court Judge Thomas Wilson last month voided his sentence on constitutional grounds, saying it was cruel and unusual punishment. The judge reduced the sentence to one year and said Wilson should not be required to register as a sex offender, as required by the old Georgia law. But shortly after the ruling was issued, Baker announced he would appeal the decision.

Wilson's attorney, B.J. Bernstein, asked that Wilson, now 21, be released on bond during the appeals, but last month, a Douglas County Superior Court judge refused. Bernstein filed an appeal of that decision.

The Georgia Supreme Court will hear arguments on the case July 20. E-mail to a friend E-mail to a friend

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