Executing child rapists: Motivation.
Executing the innocent. Louisiana law.
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:
An 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.
A 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
A 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.
Degradation 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.
"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
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:
One 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.
Probably 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
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
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:
False implanted memories of oral rape or penetration with a device and
The 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.
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
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.
His 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,"
Panama 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
"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
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
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."
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
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
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:
The abstract contains a link to the full text.