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October 30, 2024
"Child Rape and the Death Penalty"
The title of this post is the title of this new paper authored by Rosemary Ardman now available via SSRN. Here is its abstract:
In May 2023, Florida authorized the death penalty for the sexual battery of a child under twelve. The law, which passed with overwhelming bipartisan support, challenges the Supreme Court to overrule Kennedy v. Louisiana, the controversial 2008 decision holding that the Eighth Amendment prohibits capital punishment for the rape of the child. Tennessee followed suit with its own capital rape law in May 2024, and six other states have considered similar expansions to the scope of the death penalty in the past year.
This surge of legislative interest in capitalizing child rape has received limited attention, but it suggests the reemergence of an old frontier in Eighth Amendment jurisprudence. There is a need to reexamine Kennedy in this light and, more broadly, to interrogate the paradoxical role that sex crimes against children occupy in American law and culture.
This Article provides that analysis and makes three scholarly contributions. First, the Article provides a thick descriptive account of the dissonance of the criminal system's response to child sexual abuse -- a blend of apathy and outrage, horror and indifference. Second, the Article uses the concept of disgust to reconcile these seemingly contradictory narratives. Though most often associated with food and bodily waste, disgust can attach equally to social violations. Scholars have employed disgust to explain anti-sodomy laws, incest prohibitions, and domestic violence judgments, and this Article extends the analysis to child rape. Third, the Article argues that understanding these prosecutions through the lens of disgust reveals the constitutional infirmities of the death penalty for child rape. Ultimately, the Article suggests that capital child rape laws act as a symbol of revulsion at the expense of the broader system of punishment, an expression that reflects our own unsettled view of the crime.
October 30, 2024 at 08:16 AM | Permalink
Comments
What twaddle. The constitutionality of the death penalty for child rape under 12 turns on whether you believe that a punishment authorized at common law when the 8th Amendment was ratified is almost necessarily constitutional or if you believe in the evolving standards of decency judge-made law. It's not rocket science, and it ain't complicated.
This site has gotten boring.
Posted by: federalist | Oct 30, 2024 10:10:12 AM
The key reality is that child sex cases depend on the testimony of children. Most child sex cases are perpetrated by offenders who are familiar to the child. Thus, even more so than for adult cases, there is frequently delayed reporting. As a result of that delay, there is rarely physical evidence. And young children are rarely good witnesses. They have difficulty with dates and times. So you often get stuff testimony that it was sometime when I was in the third grade before Halloween or between Christmas break and Spring break.
When you add the weaponization of the Confrontation Clause in these cases, anybody who has ever tried one of these cases would tell you that it is hard to get a conviction in these cases. There are probably factual scenarios in which a jury might impose the death penalty, but, in most of those cases, you are already getting a sentence that is functionally equivalent to life without parole. I just don't see having the option of a death penalty as adding much to the the prosecutor's options in plea negotiations while potentially making it harder to investigate and prosecute such cases. Even if it were constitutional, adding the death penalty to child sex cases is a "sounds good but bad in practice" policy.
Posted by: tmm | Oct 30, 2024 10:35:27 AM
If the penalty for raping a child is the same as the penalty for raping and killing a child, the perpetrator is likely to kill the child, as doing so doesn't increase the penalty but does decrease the risk of conviction by removing the witness who could testify against him.
Posted by: Keith Lynch | Oct 30, 2024 11:01:33 AM
Excellent points, tmm amd Keith. I've always wondered why people murder the children whom they abuse. I've always thought that the rough treatment these sickos get in the joint is a contributing factor.
I believe that this is a constitutional punishment, but there are policy considerations also.
Posted by: federalist | Oct 30, 2024 1:48:41 PM
As a forensic psychologist and lawyer, I routinely evaluate people who have molested children (in fact, just did so this morning). It is not my sense that people who rape children would be more inclined to murder them based on the DP -- that is too forward thinking for most of these offenders. But, since we know that most children are sexually abused by family members, I would oppose this penalty simply for the reason that no child should feel that by disclosing their abuse they contributed to the death of their family member. We shouldn't impose that guilt on them -- even though, of course, the child is in no way responsible for being a victim.
Posted by: Steve Erickson | Oct 30, 2024 4:12:11 PM
Keith Lynch,
So, you admit that the death penalty is a deterrent?
Posted by: TarlsQtr | Oct 30, 2024 11:50:52 PM
Steve, why does it seem to happen? I am talking more in terms of stranger child-rape. Do they know that prison life is going to be very hard?
Posted by: federalist | Oct 31, 2024 9:19:55 AM
You mean a deterrent above and beyond the deterrent effect of a life sentence? For some people, probably. For me it would not be. And many of the worst criminals aren't deterred by *anything* that won't happen within the next hour.
I oppose the death penalty only because of the extreme risk of wrongful conviction. If that risk could somehow be eliminated, I'd support the death penalty, not just for murder, but for every crime that destroys more useful life than the average life expectancy. For instance there's one spammer who is responsible for sending more than a trillion spams. He's caused a greater loss of useful life than the September 11th terrorists.
Posted by: Keith Lynch | Oct 31, 2024 9:21:32 AM
Federalist -- I take it you're referring to the murder of the victim. My sense is that in those awful cases it's impulsivity not contemplation. Thankfully, I've only had one of those cases out of hundreds.
Posted by: Steve Erickson | Nov 5, 2024 4:31:50 PM