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Execution; the death penalty

Executing child rapists: Motivation.
Executing the innocent. Louisiana law.

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Possible motivation for these laws:

Author Cory Rayburn has concluded that a major driving force behind the state laws allowing the death penalty in some cases of child rape is the Victorian era belief "that rape is indeed a fate worse than death." He notes that this belief has been "virtually uncontroverted among the various parties on all sides of the debate..." and in law reviews.

He suggests some possible adverse results of such laws:

bulletAn increase of child murder following rape: This is because there would be no additional penalty for murder. Since the only witnesses to a child rape are usually the perpetrator and the child, killing the child leaves no one to testify. "Thus, whatever deterrent effect the death penalty would have for would-be rapists, it would be more than offset by the number of murdered children that would result from the incentive to kill the only witness." The same dynamic may hold in states where there is a law allowing the death penalty for kidnapping.

bulletA reduction in the reporting of rape: He commented: "Adding the death penalty to the family’s decision on whether to report will further discourage them from coming forward."

bulletA decrease in the conviction rate of rapist: Juries are traditionally reluctant to find a person guilty if it might lead to an execution. More rapists would go free to rape again.

bulletDegradation of women and children: By codifying the belief that rape is worse than death, women and children are debased as society values their "chastity over survival." Society will give a message to rape victim/survivors that a rape victim/survivor is worthless and might as well be dead.

Rayburn concludes:

"Is rape worse than death? One can only hope that in the future fewer of us know the answer to that question. Unfortunately, the approach of Louisiana and other sovereigns seems to ensure that more people will experience and come to understand both rape and death." 1

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The possibility of executing innocent adults:

There was a flurry of charges against hundreds of adults during the 1980s and 1990s for allegedly committing multi-victim, multi-offender (MVMO) sexual crimes against children in day care centers, by sexual molestation rings, etc. Often children alleged that Satanic Ritual Abuse took place. Many innocent adults were convicted of on the basis of false child testimony and misleading laboratory tests. Time has shown that all, or almost all, of the alleged perpetrators were innocent. Further studies showed that in all probability the crimes did not actually happen. Fortunately, none of the convicted were executed.

False memories of the crimes had been implanted in the minds of the children as a result of improper child interview techniques which were in wide use at the time. Children were asked repeated direct questions until they disclosed memories of events that never happened. Convictions were sometimes assisted by unreliable laboratory tests that detected benign and naturally occurring bacteria in the throats of children, and reported the bacteria as being from a STD. More recent accusations of this type of crime have not appeared in North America since child psychologists and police investigators adopted more reliable interview methods. However, one new case did surface on Lewis Island, Scotland, in late 2003.

Jeffrey Rosenzweig, a criminal defense lawyer in Little Rock, AR, said the Oklahoma bill raises troubling questions about the fallibility of the criminal justice system and the ability of malevolent adults to pressure and coerce children into making false claims. He said:

"It is the area of law that is subject to more abuse and more false statements than any other area of law because of the inherent fallibility of the memory of children." 2

There are several scenarios whereby the 1980/1990 false accusations could be repeated in the future:

bulletOne can imagine a case in which parents or other adults who are untrained in proper interview techniques asked repeated direct questions of children after suspecting that some molestation had occurred. The result could be the accidental implantation of false memories of rape or molestation into the mind of a child.

bulletProbably a more common case would be when a separated couple was seeking a divorce and a decision about custody of their children. It is relatively common for one spouse to accuse the other of sexual abuse.

If the parent(s) claimed that their child had been the victim of forced sodomy or vaginal rape, and no such crime had occurred, the absence of physical evidence should prove that an assault never happened. But if oral rape or penetration with a device is alleged, it is possible that no physical evidence would be detectable even if the assault happened. The combination of:

bulletFalse implanted memories of oral rape or penetration with a device and

bulletThe possibility of no physical evidence after the crime

could result in the conviction conviction of an innocent adult and a subsequent execution, based on the testimony of the child.

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Establishing a minimum victim age limit:

Legislators often support the death penalty for those convicted of child rape because of the devastating effect that the crime is believed to have on the victim for the entire rest of their life. A case might be made that a law should specify both a minimum and a maximum victim age limit within which the death penalty could be considered. A child under the age of about 36 months generally has no long-term memory; most cannot recall even abusive earlier events into adulthood.

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Appeal of the Louisiana law to the U.S. Supreme Court:

In 1976, the U.S. Supreme Court reinstated the death penalty across the U.S. They had earlier placed a moratorium on executions, believing that they violated the prohibition on "cruel and unusual punishment" as specified in the Eighth Amendment of the U.S. Constitution.

During 1977, the U.S. Supreme Court ruled in a case involving the rape of a young woman in Georgia. They determined that executing a criminal for the a crime less serious than murder would be cruel and unusual punishment. Justice Byron R. White wrote for the court: "We have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life." 4 The victim was 16 years of age and considered an adult by the court.

In 1995, the Louisiana legislature passed a law that allowed the execution of persons convicted of raping children under the age of 12. They regarded the 1977 court decision as applying only to the rape of adults.

On 2008-APR-16, the U.S. Supreme Court heard oral arguments for the appeal of Patrick Kennedy. He had been convicted in Louisiana of raping his 8-year-old stepdaughter in a particularly violent manner. He was sentenced to be executed. If the court upholds Kennedy's conviction, the path would be open for other states to pass legislation to require or permit the death penalty for crimes other than murder.

On 2008-APR-30, Christopher Powers, 46, was convicted of raping a boy under the age of 12 in Florida. He currently faces a mandatory life sentence. Although Florida has a statute that allows the court to sentence such a perpetrator to death, a state court declared it unconstitutional. State Attorney spokesman Joe Grammer said that the sentence is "... not our decision. I've been a prosecutor since 1984, and it's been that way all of that time." Powers also faces a sexual battery charge in Panama City, FL. If the Supreme Court issued a ruling upholding Kennedy's conviction in time, Powers could be sentenced to be executed.

bulletHis attorney, Mike Grabner, said that here is: "...someone who is under extreme duress, in a suicide cell. Someone who has asked for the death penalty. It would satisfy me if they (child rapists) were all put to death,"

bulletPanama City Circuit Judge Michael Overstreet said: "... but if the argument is it's a deterrent, it's not. Nothing is going to change their behavior, so if they're incapable of controlling their behavior, then the more humane and practical thing to do is put them away where they can't hurt anyone else."

Kennedy was represented by attorney Jeffrey Fisher and the Capital Appeals Project in New Orleans. Fisher told the Court that groups working with child rape victims oppose capital punishment for  perpetrators. They are concerned that victims will be reluctant to disclose the abuse if it could result in the perpetrator's death. This is particularly true in cases where the crime is committed by a family member. Fisher said to the Supreme Court that nobody has been executed for a rape of any kind in 43 years. He also noted that that more states have rejected the death penalty for child rapists than have added it, and that New Jersey repealed its death penalty law entirely. Their brief states that: "Viewed against the backdrop of 44 years without a single execution for rape of any kind, the enactments of only four states over 13 years . . . hardly signify a shift in societal attitudes" They noted that expanding grounds for the death penalty would separate the United States from other Western nations and align it with "only a sliver" of the world, including the dictatorships of China, Egypt, and Saudi Arabia. The Washington Post reported:

"Even if imposing the death penalty for child rapists were ruled constitutional, he said, Louisiana's law is so broad that it fails the Supreme Court's test of narrowing classifications of offenders to the worst of the worst. For instance, while other states require previous convictions before a convict is eligible for the death penalty, Louisiana does not. Anyone convicted of raping a child younger than 13 is eligible for the death penalty, even though the typical murderer would not be."

The NAACP Legal Defense Fund and the American Civil Liberties Union recalled the "scourge of racial bias" that accompanied the execution of rapists during the mid-20th century. Almost 90 percent of those executed were African Americans.

Beyond legal issues, the law is bad policy, an unlikely coalition of social workers and groups that work to prevent sexual assaults told the court.

Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assault, admitted that her opposition to the law "... might seem counterintuitive. But our great fear is that it will increase underreporting" of the crime. She pointed out that the vast majority of child rapes were committed by a member of the family or by a friend known to the family. Family members would often be disinclined to report a rape if it endangered the life of the perpetrator. She said: "It's a complex area that I think needs to be looked at in a more in-depth manner than policymakers are often willing to do." 4

During the oral arguments, Justice Antonin Scalia said: "Our jurisprudence just requires the narrowing of the death penalty to particularly heinous crimes,
... and one could say that rape (of a child) is in and of itself particularly heinous."

Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer discussed how states would implement an expansion of the death penalty to include child rape. Fisher said that the Louisiana's law: "... gives juries unfettered discretion to choose who, among the vast class of offenders convicted of child rape, may be subject to the death penalty." However, other states require that the defendant have a prior history of crimes against children in order to be eligible for the death penalty. He continued: "The state of Texas and other states that have these severe, recidivist requirements might say that is good enough, but they'd still be left with the argument that a person who commits child rape and it does not result in death is a worse offender than somebody who deliberately kills somebody."

An attorney representing the state of Louisiana, Juliet Clark, noted that defendants sometimes face the death sentence when they kill someone accidentally during the commission of another felony. She said: "I think that's very different from a case like this, where the offender absolutely committed the offense ... where the offender absolutely does not act by accident or without premeditation or deliberation and directly causes that terrible harm himself."

Jim Appleman, a state attorney for 24 years, saw defendants who he said he believes deserved death for their crimes against children. He said: "You have to look at whether the defendant has been convicted before, whether there are multiple victims, the extent of the injuries to the child." However, he does not believe that the possibility of execution acts as a deterrent He said: "An individual with a gun or a knife isn't going to stop and think about the possible penalties as they're standing over someone, or standing over a child." 3

On 2008-JUN-25, the U.S. Supreme court handed down a ruling in the Patrick Kennedy case. As is usual with rulings containing a moral component, the decision was 5 to 4. The ruling stated that chld rapists cannot be executed in the U.S. Capital punishment for crimes against individuals can only be applied in the case of murder.

According to CNN:

"Justice Anthony Kennedy wrote in the majority opinion that execution in this case would violate the Eighth Amendment's prohibition against cruel and unusual punishment, citing 'evolving standards of decency' in the United States."

"Such standards, the justice wrote, forbid capital punishment for any crime against an individual other than murder."

" 'We conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other,' wrote Kennedy, who is not related to the convicted rapist." 5

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See also an essay on: "Quotes. Current grounds. Including child molestation"

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Corey Rayburn, "Better Dead than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes," St. Johns Law Review, Vol. 78, No. 4, Page 1119, Fall 2004. The abstract is available from the Social Science Research Network at: http://papers.ssrn.com/  The abstract contains a link to the full text.
  2. "Sex offender law raises constitutional questions," Associated Press, 2006-JUN-08, at: http://www.news-star.com/
  3.  David Angier, "Court mulls death for child rapists: Ruling could affect Bonifay trial," McClatchy Tribune Business News, 2008-MAY-05, at: http://www.romingerlegal.com/
  4. Robert Barnes, "Child Rape Tests Limits Of Death Penalty. La. Law Spurs Review Of Eighth Amendment," Washington Post, 208-APR-18, Page A01, at: http://www.washingtonpost.com/
  5. Bill Mears, "Child rapists can't be executed, Supreme Court rules," CNN Justice, 2008-JUN-25, at: http://articles.cnn.com/

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Copyright © 2006 to 2012 by Ontario Consultants on Religious Tolerance
Originally posted: 2006-JUN-11
Latest update: 2012-APR-25
Author: B.A. Robinson

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