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Execution; the death penalty

Executing child rapists: Quotes. Current
grounds. Including child molestation.

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Quotations:

bullet"When a child is raped or sodomized, then their life is basically destroyed....The punishment [execution] fits the crime." State Representative Warren Massey (R, GA), commenting in favor on the death penalty for child rapists.

bullet"The contention that the harm caused by a rapist is less serious than that caused by a murderer is apparently not subscribed to by all rape victims. In some cases women have preferred death to being raped or have preferred not to continue living after being raped." Ruling of the Louisiana Supreme Court which upheld the state law allowing for the execution of child rapists.

bullet"You might say the rape of a child is a more heinous crime than the murder of a junkie...A murder victim suffers for a moment, but that little girl will probably suffer the indignities caused by [a rapist] for the rest of her life." Vince Paciera, Louisiana prosecutor.

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Grounds for applying the death penalty:

There are many capital crimes other than murder which remain on the books in various states. However, rulings by the U.S. Supreme Court has restricted capital punishment to relatively few crimes. As of the year 2004 (except where noted) states provide the death penalty for:

bulletTreason: Nine states—Arkansas, California, Colorado, Georgia, Illinois, Louisiana, Mississippi, Missouri, and Washington—and the federal government.

bulletAggravated kidnapping: Five states—Colorado, Idaho, Illinois, Missouri, and Montana.

bulletChild rape: Five states: Louisiana, Montana, Oklahoma, South Carolina, and Texas as of 2008-MAY. (Florida and Georgia had older laws that have been declared unconstitutional by state courts.) 9

bulletDrug trafficking: Two states, Florida and Missouri, and the federal government.

bulletAircraft hijacking: Two states, Georgia and Mississippi.

bulletPlacing a bomb near a bus terminal: One state: Missouri.

bulletEspionage: One state: New Mexico.

bulletAggravated assault by incarcerated, persistent felons or murderers: One state: Montana. 1

However, in those states that perform executions, the death penalty is mostly limited to cases involving aggravated murder. States have different criteria to define this class of crime. Oregon, for example, includes ten categories. [We have simplified the language of Oregon's criminal code. For precise language, please consult the Criminal Code of Oregon]. 2

bulletA contract killing: either the hired murderer or the person paying for the murder.

bulletA second conviction for murder or manslaughter in the first degree.

bulletMultiple murders.

bulletA killing which included intentional maiming or torture of the victim.

bulletThe victim was 13 years of age or less.

bulletMurder of a police officer, correctional, parole or probation officer, judicial officer, juror, witness, employee or officer of a court of justice, or member of the State Board of Parole and Post-Prison Supervision.

bulletMurder in a prison.

bulletMurder using explosives.

bulletThe murder was committed in an attempt to conceal the commission of a crime or to conceal the identity of the perpetrator.
bulletThe murder was committed during an escape from jail.

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Legislation including child molestation as a capital crime:

By the late 1970s, three states -- Florida, Mississippi, and Tennessee -- had laws on the books permitting the death penalty for the crime of child rape. All three laws were later declared unconstitutional by their state courts.

A growing number of states have recently created laws allowing the execution of convicted child molesters. Louisiana was the first in 1995-JUN-17. 1 It allowed the death penalty for aggravated rape of a victim under the age of twelve years. This triggered debates in other state legislatures.

On 2006-JUN-08, Gov. Mark Sanford of South Carolina signed a bill to allow the death penalty for repeat sexual offenders who are convicted of raping children under the age of 11. The new law is named for 9-year-old Jessica Lunsford. During 2005, she was kidnapped, raped and suffocated by a registered sex offender. Sanford said:

"Jessie's Law is about sending a very clear message that there are some lines you do not cross, and that if those lines are crossed the penalties will be severe." 3

Jay Paul Gumm (D-Durant) wrote bill SB 1747 early in 2006 to stiffen penalties for repeat child molesters. He introduced it to the Oklahoma Senate. It passed without difficulty. But a House committee chairperson refused to hear the bill. It did not proceed. 4 Senator Jonathan Nichols (R-Norman) and Senator Gumm then introduced a different bill, SB 1800. It created a state Child Abuse Response Team (CART). Additional text was appended to the original bill to stiffen penalties for perpetrators of child abuse. The Oklahoma Senate passed the bill by a vote of 40 to 7. The house passed it 88 to 8.

On 2006-JUN-09, one day after the South Carolina bill became law, Governor Brad Henry of Oklahoma signed SB 1800. 5 It permits a sentence of life in prison without the opportunity of parole or the death penalty for a repeat child molester convicted of harming a child under the age of 14: 6,3 The text reads:

"Section 7115 I: Notwithstanding any other provision of law, any parent or other person convicted of forcible anal or oral sodomy, rape, rape by instrumentation, or lewd molestation of a child under fourteen (14) years of age subsequent to a previous conviction for any offense of forcible anal or oral sodomy, rape, rape by instrumentation, or lewd molestation of a child under fourteen (14) years of age shall be punished by death or by imprisonment for life without parole." 7

Some observers have suggested that these laws are a response to belief by the public that child molesters cannot be cured, and that legislators and courts should get tougher on crime.

The Washington Post reports that: "Of the 3,300 inmates on death row across the country, only two are there for a crime other than murder. Both were convicted under Louisiana's child rape statute, passed in 1995 and still the broadest in the land." 8 One inmate was convicted in 2003 of raping an 8-year-old girl in Louisiana. He appealed his sentence to the U.S. Supreme Court. On 2008-JUN-25, the U.S. Supreme court handed down a 4:5 decision stating 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.

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Reactions to the Oklahoma law:

Reactions to the Oklahoma law were mixed:

bulletBarbara Bergman, president of the National Association of Criminal Defense Lawyers, believes that the law is unconstitutional. Precedents set by previous Supreme Court decisions indicate that the death penalty may be applied only in case of murder. She said:

"I'm not saying that raping a child is not a horrible crime, but no one has died."

Her comment echoes the Coker v. Georgia decision by the U.S. Supreme Court in 1977 which overturned the death penalty of a man convicted of raping a 16 year old young woman in Georgia. Their ruling said that execution was:

"...an excessive penalty for the rapist who, as such, does not take human life."

However, the court referred to the victim as an adult. With the recent shift to a strict constructionist philosophy by many Justices of the Court, they may well render the opposite view for child victims. Strict constructionists interpret the Constitution according to the thought processes of its authors. In the 8th century, slavery was legal, women's rights were severely limited, gays were jailed, and there was a broad range of capital crimes in the U.S.

bulletOklahoma state Senator Jay Paul Gumm (D-Durant), sponsor of the bill, said:

"I feel like this is the message we need to send to anyone who is considering harming a child. These are the people who are going to continue to prey upon children until they are stopped. They're in the same ball park with murderers as far as I'm concerned."

Earlier, during debate on the bill, he said:

"Those who repeatedly prey on our children in this unspeakable manner should face the most severe penalties allowed under our justice system....There are too many stories of child molesters who are set free only to shatter the life of another innocent child. I want to make certain that in Oklahoma we are doing everything we can to ensure that never happens here in our state....We allow the death penalty for those who kill the body. Why wouldn’t we have the same penalty for someone who kills a soul?...By sending a message to those who repeatedly prey on our children that Oklahoma will not tolerate this sort of horrible crime, we are doing our part to create a safer Oklahoma for all our citizens." 8

bulletDavid Brook is a law professor at Washington and Lee University. He leads the Virginia Capital Case Clearing House -- a service that helps lawyers in capital cases. He expressed concern that the law might endanger child rape victims' lives. He said:

"The last message you want to give an offender who has the life of a child in his hands is you might as well kill the child because he's already got the death penalty. This is a very stupid message."

bulletRichard Dieter, executive director of the Death Penalty Information Center believes that the public is quite concerned at the frequency and seriousness of sex crimes. This has prompted legislators to tackle the problem. He said:

"There is a political push to appear tough and on the victim's side. It's hard to say no."

bulletOklahoma state Representative Fred Morgan said:

"The public, the voters, everybody's fed up with child predators." During debate in the legislature, he referred to child molesters as "monsters" and "less than human."

bulletWes Lane, Oklahoma County district attorney, said:

"I would be a little bit surprised if the Supreme Court approves of that [law], but I have been wrong before. Nobody around here has any sympathy for child molesters."

He said that would gladly enforce such a law if it were declared constitutional by the U.S. Supreme Court.

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See also an essay on: "Executing other than murderers; motivation; executing the innocent; Louisiana law"

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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. "Aggravated Murder," Crime Victims United, at: http://www.crimevictimsunited.org/ This lists the Criminal Code of Oregon as it existed in 1998.
  3. Tim Talley, "Okla. Governor Approves Executing Molesters," 2006-JUN, at: http://www.enidnews.com/
  4. Oklahoma State Senate bill SB 1747. The text is online at: http://webserver1.lsb.state.ok.us/
  5. "Death penalty for repeat child molesters clears Okla. legislature," Herald Democrat, 2006-JUN-01, at: http://www.heralddemocrat.com/
  6. "Governor Brad Henry Signs Bill Allowing Death Penalty For Repeat Child Molesters," Associated Press, 2006-JUN-09, at: http://www.kotv.com/
  7. "Bill No. 1800," Oklahoma Senate, at: http://www2.lsb.state.ok.us/
  8. "Death Penalty for Repeat Child Molesters Wins Approval in OK Senate," KTEN TV, 2006-MAR-14, at: http://www.kten.com/
  9. 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/

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Copyright © 2006 to 2008 by Ontario Consultants on Religious Tolerance
Originally posted: 2006-JUN-11
Latest update: 2008-MAY-06
Author: B.A. Robinson

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