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Death Penalty for Child Rape:

Yesterday. the Louisiana Supreme Court upheld the death penalty for rape of a child under 12. In Coker v. Georgia (1977), the Supreme Court held that the death penalty for rape was unconstitutional. Many commentators had interpreted the reasoning of Coker as precluding the death penalty for anything short of murder and possibly some national security offenses (treason, espionage, and the like). But Coker spoke expressly and repeatedly of rape of an adult, so the question of the death penalty for rape of a child remains open.

Yesterday's decision follows the lead of a 1996 Louisiana Supreme Court case (State v. Wilson), but Wilson decided the question in the context of a pretrial motion, and the U.S. Supreme Court understandably -- given its general preference not to review decisions before a final judgment -- refused to hear the case. The new case, State v. Kennedy, upholds a death sentence, so I suspect the Supreme Court will agree to consider the issue.

The Louisiana opinion is long and detailed, and I can't do it justice with a capsule summary; but here's a particularly interesting passage that tries to apply the U.S. Supreme Court's death penalty methodology that was developed in the recent cases having to do with the death penalty for juveniles and the mentally retarded (one paragraph break added):

Overall, it appears that approximately 30% of capital jurisdictions (15 of 38, including federal) authorize some form of non-homicide capital punishment, a showing strong enough to suggest that there may be no consensus one way or the other on whether death is an appropriate punishment for any crime which does not result in the death of the victim. However, when the direction of change is considered, clearly the direction is towards the imposition of capital punishment for non-homicide crimes. As stated earlier, the number of jurisdictions allowing the death penalty for non-homicide crimes more than doubled between 1993 and 1997.

Most important to our analysis is the fact that four states have enacted laws which capitalize child rape since Wilson, evidencing movement in the direction that this Court thought possible back in 1996 when Wilson was decided. Looked at another way, even after the Supreme Court decided in Coker that the death penalty for rape of an adult woman was unconstitutional, five states nevertheless have capitalized child rape since then, a number which the Supreme Court held in Roper was sufficient to indicate a new consensus regarding society's standards of decency towards the juvenile death penalty.

In fact, the trend is more compelling than in Roper, given the Roper Court's reliance on five states abolishing the death penalty for juveniles after Stanford held that the death penalty for juveniles was constitutional. Here, we have five states enacting the death penalty for child rape in spite of Coker, which held that the death penalty for rape of an adult was unconstitutional. Furthermore, it is likely that the ambiguity over whether Coker applies to all rape or just adult rape has left other states unsure of whether the death penalty for child rape is constitutional. These states may just be taking a "wait and see" attitude until the Supreme Court rules on the precise issue. Thus, the fact that only five states capitalize child rape should not pose an obstacle to the Court's consideration of the issue, given the direction of change, i.e, an increase of five since Coker....

[Moreover,] it can be said for child rapists as a class of offenders that, unlike the young or mentally retarded, they share no common characteristic tending to mitigate the moral culpability of their crimes. Contrary to the mentally retarded and juvenile offenders, execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would. Our state legislature, and this Court, have determined this category of aggravated rapist to be among those deserving of the death penalty, and, short of a first-degree murderer, we can think of no other non-homicide crime more deserving.

elChato (mail):
So the evolving standards of decency which mark the progress of a maturing society don't support striking this legislation? Sweet mystery of life!! Headcounting among state laws worked so well when they trended in the direction favored by judges. Quick, let's see what the supreme court of, say, Austria has to say about this.
5.23.2007 3:40pm
Daniel San:
The passage reads like a parody of Roper. Relying on legislation of a few states as a guide to the "direction" of moral discourse, speculating about the motivations of other States, its analysis is a bit bizarre, but not much more so than Roper. As parody, it is rather well done. As a Court's analysis of Constitutional law, it is disturbing.
5.23.2007 3:43pm
Dave N (mail):
Those who read my posts know that I am fairly conservative, and generally "pro-death penalty." That said, I am concerned about capital punishment being imposed for non-murders for the simple reason that if you allow capital punishment for child rapes, what incentive does the monster commiting the crime have for letting the child live?
5.23.2007 3:44pm
Falafalafocus (mail):
Fair point, Dave N, but you are going to whether it makes sense as a policy matter, not whether it is cruel or unusual punishment.

In any event, any constitutional doctrine which is founded on "evolving standards of decency" is begging for case law to look like parody. I'm just surprised that the Lousiana court had the intestinal fortitude to play that game.
5.23.2007 3:51pm
Dave N (mail):
Falafalafocus,

You are right, my prior post was a statement of policy. I believe that capital punishment should not be imposed for crimes other than murder (as well as espionage, treason and the like).

From an Eighth Amendment standpoint, I think Roper was wrongly decided and also that, regretably, this law passes Constitutional muster.

As a side note, I would observe that particularly in the context of capital punishment (but perhaps in other areas as well) "evolving standards" always seem to appear to be "evolving" in one direction.
5.23.2007 4:07pm
Pub Editor:

I'll echo Dave N and Falafalafocus. Debra Sounders made the point a few months ago here. She quotes one death penalty supporter:


"If you get a death sentence for raping a little girl, and you get a death sentence for a raping a little girl and killing a little girl, and the only witness to the crime is the little girl, why not kill them all?"

That said, that is all policy. We as citizens in a democratic republic, acting through our representatives or through plebiscites, might decide that it is unwise to execute child molesters or 17-year-old murderers. If so, we have legislative mechanisms for expressing those societal preferences.

What is infuriating and exasperating to originalists, textualists, federalists, most conservatives and many others is the idea that "cruel and unusual" is a license for a court of Platonic Guardians to look at "trends" in domestic and foreign courts to determine that a practice that was constitutional 20 years ago is no longer constitutional--with no intervening amendment.

Maybe the La. Supreme Court is writing a parody of Roper--or maybe there's sincerely applying the Roper test. The result is the same either way.

Still, I'd say that the odds are 70% that the SCOTUS will grant cert and 50-50 that they'll reverse, 5-4. Everything will depend upon Kennedy, as usual.
5.23.2007 4:08pm
Mark Field (mail):
This whole discussion has a nice academic tone to it, but it's ignoring the elephant in the room: Southern states used rape accusations as a form of social control over black men and imposed the death penalty precisely because of the discriminatory impact which everyone understood. Any discussion of the preferences of "citizens in a democratic republic" must first address this historical reality before debating whether it's wise or not to make rape (of anyone) a death penalty offense.
5.23.2007 4:19pm
Thorley Winston (mail) (www):
Many commentators had interpreted the reasoning of Coker as precluding the death penalty for anything short of murder and possibly some national security offenses (treason, espionage, and the like). But Coker spoke expressly and repeatedly of rape of an adult, so the question of the death penalty for rape of a child remains open.


It would be nice if instead of trying to distinguish in the facts, the SCOTUS simply overturned Coker as the idiotic decision it was and the States were free again to make kidnapping and raping any person of any age a capital crime.
5.23.2007 4:25pm
Peter Young (mail):
short of a first-degree murderer, we can think of no other non-homicide crime more deserving.

This doesn't say what was intended, does it?
5.23.2007 4:27pm
OK Lawyer:
The policy argument voiced that this would encourage the rapist to simply kill the victim is an interesting one. Is the death penalty really a concern of someone willing to rape a child? Is that person contemplating the potential criminal sanctions during a brutal rape of a baby?

Somehow, I doubt the pig is thinking, hmm, I better not kill this 6y old girl after I rape her, otherwise, instead of spending the rest of my life in prison, I could get the death penalty. Such an analysis indicates, to me, a certain ability to reason, which is clearly absent in such an individual anyway.
5.23.2007 4:35pm
Jim FSU 1L (mail):
As I remember, the Coker girl wasnt what we would call an adult. She was married at an exceptionally young age and was only 15 or 16 at the time she was kidnapped and raped. I also think that a reasonable person could dispute the Coker Court's view that she was "returned unharmed" after having been raped.

Regarding evolving stardards of decency, I dont think they ever involved in the direction the Coker court intended them to. We now view 16 year olds as minors in most states. We also view rape as a form of bodily harm, and we are still quite comfortable (as a society if not individually) with the idea of executing criminals.

Maybe it's time we revisted the Coker decision to realign it with the direction that our standards of decency have evolved.
5.23.2007 4:41pm
Justin (mail):
One of the problems with this decision is that unlike with murder, almost all perpetrators of child rape are mentally ill, which (and I almost can't believe I need to add this qualifier, but I do) ACCORDING TO SUPREME COURT PRECEDENT, should militate against the death penalty, even when the illness is not enough for a "not guilty" verdict.

Given the well-established empirics showing that juries are generally not sufficient vehicles for consideration of this qualification, the decision is, to put it mildly, disheartening.

I assume it will be overturned, and my guess is that it will be more than 5-4 (either 6-3 or 7-2, with Scalia and Thomas joined POSSIBLY by Roberts).


(Note: It is at least possible that one would rape a child for other reasons, such as in the fictional book A Time to Kill, where the act was one of pure violence, rather than one of psychotic attraction. But one should be careful to make a rule designed only to deal with a very limited exception, and in any event, I have repeatedly been told that conservative jurisprudence does not favor disparate treatment of criminals based solely on the MOTIVE for committing a crime)
5.23.2007 4:41pm
Justin (mail):
"Somehow, I doubt the pig is thinking, hmm, I better not kill this 6y old girl after I rape her, otherwise, instead of spending the rest of my life in prison, I could get the death penalty. Such an analysis indicates, to me, a certain ability to reason, which is clearly absent in such an individual anyway."

This analysis illustrates my point, and unwittingly dooms the writer's argument in favor of the death penalty for such acts.
5.23.2007 4:43pm
Thorley Winston (mail) (www):
Those who read my posts know that I am fairly conservative, and generally "pro-death penalty." That said, I am concerned about capital punishment being imposed for non-murders for the simple reason that if you allow capital punishment for child rapes, what incentive does the monster commiting the crime have for letting the child live?


What incentive do they have now knowing that if they get caught and convicted of raping a child the inmates in general population will probabley do it anyway? And chances are they won't care if it's "painless" or not.
5.23.2007 4:48pm
Thorley Winston (mail) (www):
One of the problems with this decision is that unlike with murder, almost all perpetrators of child rape are mentally ill, which (and I almost can't believe I need to add this qualifier, but I do) ACCORDING TO SUPREME COURT PRECEDENT, should militate against the death penalty, even when the illness is not enough for a "not guilty" verdict.

Given the well-established empirics showing that juries are generally not sufficient vehicles for consideration of this qualification, the decision is, to put it mildly, disheartening.


No it isn’t because unless their “mental illness” prevents them from forming the requisite mens rea or aiding in their own defense – both of which go to the question of guilt, it should have no bearing on the punishment they receive if convicted.
5.23.2007 4:57pm
Clayton E. Cramer (mail) (www):
I'm not a fan of the death penalty (although I can remember being quite willing to make an exception for the guy in California who raped and tortured a two year old to death). But Coker was wrongly decided.

Yes, I know that capital punishment for rape in the Southern states was often used to keep blacks in their place. Deal with it by dealing with equal protection--not evolving standards of morality.

Tape was a capital offense when the Bill of Rights was ratified. Burglary was a capital offense. I was astonished when reading through late colonial Pennsylvania newspapers how many crimes were punished with hanging. The notion that capital punishment is "cruel and unusual" for rape is the sort of liberal claptrap I expect from people that don't know any rape victims, and haven't watched the trauma of watching them try to bring a semblance of normality back to their lives.
5.23.2007 4:58pm
DDG:
Danielsan

The passage reads like a parody of Roper


I thought Roper was parody (or perhaps farce)?
5.23.2007 4:58pm
MG:
15 of 38 is approximately 30%? I guess they didn't want to be accused of overstating the percentage.
5.23.2007 4:58pm
Falafalafocus (mail):
Justin,

I haven't seen anyone here argue that motive should be a consideration in whether rape of a minor is cruel or unusual punishment. Perhaps I simply missed that post. In any event, your first point is that death penalty of the mentally ill, "ACCORDING TO SUPREME COURT PRECEDENT" (I like the all caps as if I didn't know whose precedent it was.) militates against the death penalty. As I am sure you are aware, it militates against the death penalty precisely because such a penalty is contrary to "evolving standards of decency". Unless there is a "unless the criminal is mentlaly deficient" clause otherwise to be found in the constitution, your argument that there is some other problem with the Lousiana decision pretty much runs into the same roadblock we were pointing out previously: that the Lousiana court's application of Roper kind of proves that the current death penalty jurispridence is an unworkable attempt to apply an elite morality against the masses.

At best, you are arguing that there is another trend in that evolving standard. I am sure that the defendant will argue that point as well. I kind of like that approach. Now we can have multiple competeting trends of "evolving standards of decency", all of which will be vying for the Justices' attention. [sarcasm] Obviously, that wouldn't be too confusing for the practitioner, the courts, or the criminal. [/sarcasm].

As to your argument on OK Lawyer's thoughts: fair enough, but now you are hitting the death penalty from a different angle. OK Lawyer was answering the question: why not just kill the witness since defendant faces the death penalty anyway? You then jump up from left field to argue "aha! the death penalty should only be used against those who show real malice". It's a fair argument used unfairly.
5.23.2007 4:59pm
Clayton E. Cramer (mail) (www):
Justin writes:

One of the problems with this decision is that unlike with murder, almost all perpetrators of child rape are mentally ill,
On what basis do you make that claim? Or are you just discriminating against people with a different sexual orientation, by assuming that they must be mentally ill?
5.23.2007 4:59pm
Hattio (mail):
To take the thread in another direction, is there any limitation to this in the definition of child or statutory rape? What I'm asking is could a similar case to Genarlow Wilson result in the death penalty to an 18-year old for having consensual sex with someone who is statutorily presumed to be unable to consent (such as someone just under 16 or just under 18.
5.23.2007 5:00pm
Anderson (mail) (www):
EV's "child rape" in the headline is almost as Litella-worthy as the AP's "La. Supreme Court Upholds Death Sentence for Child Rapist."

Perhaps it's a *good* thing that we don't have a more sophisticated vocabulary for such things.
5.23.2007 5:01pm
Anderson (mail) (www):
Or are you just discriminating against people with a different sexual orientation, by assuming that they must be mentally ill?

Never having hesitated to condemn Mr. Cramer for his views on homosexuality, I must in all fairness say: good one.

The assumption that people are "mentally ill" rather than, say, "evil" is also obnoxious.
5.23.2007 5:03pm
Georgette O.:
It's not as though the only arguments for/against a particular sentence are deterrence-based. What about incapacitation (which would logically be a biggie here, given the abysmal lack of success in rehabilitation of child sex offenders) or sheer retribution?
5.23.2007 5:07pm
Hattio (mail):
Georgette O,
Except the "abysmal lack of success in rehabilitation of child sex offenders" is largely a myth.
5.23.2007 5:12pm
Houston Lawyer:
There's a case pending in Houston right now where the mother of an infant boy is accused of cutting off and disposing of his genitals. Considerably worse than rape, in my view and fully deserving of the death penalty. Too bad the law doesn't provide for it.
5.23.2007 5:13pm
Justin (mail):
I originally had some substantive responses to some legitimite (even if I disagree with them) criticisms of my original response, but having read to the end of this thread, I can see the unfortunate direction this is heading.
5.23.2007 5:16pm
theobromophile (www):
The head-counting of state (and international) laws essentially constitutionalises legislative trends - ironically, as the idea behind federalism was to allow states to experiment. The Justices assume not just that minor (statistically insignificant) shifts are noteworthy but also wise. As noted above, such analyses could work to undermine the protections that would have been afforded to citizens in the late 18th century.

As a policy matter, I'm not sure that statutory rape and murder are the same thing - would someone with the desire and capability to rape a small child also want to murder her?

As another policy issue, there's no "false accusation" issue with statutory rape, as such intercourse, by definition, cannot be consensual.


To take the thread in another direction, is there any limitation to this in the definition of child or statutory rape? What I'm asking is could a similar case to Genarlow Wilson result in the death penalty to an 18-year old for having consensual sex with someone who is statutorily presumed to be unable to consent (such as someone just under 16 or just under 18.


Obviously, under Roper, a 17-year-old could not be executed for raping an 8-year-old. The only thing I could imagine is if the Court (or a state Court) were to interpret "adult" in the Coker decision to mean anyone over the age of, say, 14. That, combined with Roper, would require at least an 18-year-old who has sex with a 13-year-old.
5.23.2007 5:17pm
Thorley Winston (mail) (www):
There's a case pending in Houston right now where the mother of an infant boy is accused of cutting off and disposing of his genitals. Considerably worse than rape, in my view and fully deserving of the death penalty. Too bad the law doesn't provide for it.


I have long thought that we ought to make forcible sterilization one of the penalties in the cases of severe child abuse. It seems the height of absurdity that when the State has the ability to deprive someone who was convicted of a crime of their life, liberty, and property that their “right” to reproduce is nearly inviolable particularly when the offense is against their own children.
5.23.2007 5:18pm
Anderson (mail) (www):
Except the "abysmal lack of success in rehabilitation of child sex offenders" is largely a myth.

Explain, please? I have heard a distinction b/t "pedophiles" and "molesters," where the former are largely incurable, the latter not, IIRC. (This distinction is being promulgated to state parole board members nationwide, since I heard it from one who'd attended a conference of such ... so if you have reason to think it false, please provide same.)
5.23.2007 5:19pm
Clayton E. Cramer (mail) (www):
Mark Field writes:

This whole discussion has a nice academic tone to it, but it's ignoring the elephant in the room: Southern states used rape accusations as a form of social control over black men and imposed the death penalty precisely because of the discriminatory impact which everyone understood.
The irony is just too delicious. The defense lawyers are claiming "two black boys" did this horrible crime to keep their client from having to choose regular or extra crispy.

While the decision's discussion of the evidence seems to be sufficient for a conviction, I must confess that this isn't quite as open and shut as I would like for a penalty that lacks the Undo button. If the defendant really was innocent (which seems vanishingly small), the attempts to get carpet cleaners out because "his daughter just became a little lady" makes me want to see how long it would take to convert one hundred phone books to mush by slapping him across the face with them.
5.23.2007 5:24pm
Dave N (mail):
Anderson didn't state it in his post, and I don't want to be presumptuous in speaking for him or his colleague, but I believe that the distinction between "pedophiles" and "molesters" is this:

A pedophile is sexually attracted to children or adolescents; some are attracted to males, some to females, some to both (though usually not). A pedophile is a pedophile whether or not he (almost always a "he") acts on his sexual urges or not. The term merely refers to his sexual attraction.

A molester, on the other hand, actually acts on his sexual desires. Thus, all child molesters are pedophiles but not all pedophiles are child molesters.

Thus, it seems logical that curing a pedophile is close to impossible--but convincing them not to act on their sexual urges is not.
5.23.2007 5:36pm
Thorley Winston (mail) (www):
Dave N, isn’t there a further distinction though between a child molester and a child rapist (which narrows it even further)?
5.23.2007 5:40pm
Clayton E. Cramer (mail) (www):

Explain, please? I have heard a distinction b/t "pedophiles" and "molesters," where the former are largely incurable, the latter not, IIRC. (This distinction is being promulgated to state parole board members nationwide, since I heard it from one who'd attended a conference of such ... so if you have reason to think it false, please provide same.)
At one time, experts in the field distinguished between fixated pedophiles and opportunistic pedophiles. The opportunistic pedophiles usually involved molestation of a child under their roof or care, and from many of the accounts that I have read, involved an intoxicated adult of weak moral character who took advantage of a child. The opportunistic pedophiles were believed by some experts to be repairable.

The fixated pedophiles, on the other hand, actively sought out children, often consciously choosing careers (priest, school teacher) or avocations (Scoutmaster) that gave them access to children. Fixated pedophilia was argued to be a characteriological flaw, and not repairable.

I don't really know. I read that California recently revised its statute on the subject to take away the benefit of the doubt to molesters whose victims were within family--apparently originally placed there on the grounds that such molesters were likely opportunistic molesters, not fixated pedophiles.

Assuming that what I read was correct, were they correct to do so? I don't know. Being from California, I know an enormous number of victims, and the victims who were molested by fathers, stepfathers, uncles, were terribly damaged by it. I'm not sure that giving anyone the benefit of the doubt on this is useful. But from the damage that I have seen done, while I don't feel comfortable with the government imposing the death penalty, I might be a sympathetic juror if someone was prosecuted for converting one of these monsters into something useful, like briquettes.
5.23.2007 5:41pm
Dave N (mail):
Thorley,

I haven't prosecuted child sex crimes in a long time, so you may be right. What is your understanding of the distinction? Or did Clayton Cramer hit it on the head?
5.23.2007 5:47pm
Anderson (mail) (www):
Well, as I understood it, a "pedophile" has children as his primary or exclusive sexual object ("orientation," says Cramer).

Whereas a "molester" is someone with no particular fixation on children, but who, perhaps opportunistically or due to proximity, gratifies sexual desire with a child. Typically this includes the classic stepdad who molests his Lolita-aged daughter, etc.

The idea being that you can try to condition or train a molester against gratifying his desires, but that a pedophile's orientation is no more mutable than a straight or gay person's.

N.b. as well, re: "molesters," that sexual relations with early teens or even preteens used to be legal, if not always smiled upon. It's artificial for a person to set an arbitrary "18 or older" limit on his or her sexual attractions. That's not an excuse -- it's also artificial to limit oneself to leaving a store with items one has purchased -- but it bears remembering, and supports the idea that the "molester" is someone whose inhibitions aren't as well-implanted as the average person's.
5.23.2007 5:50pm
Anderson (mail) (www):
Dave N, my own understanding is that "rape" require penetration, whereas fondling etc. would be "molestation" -- I think Miss. has "sexual battery" for non-rape sexual offenses.

And I should've added that my understanding of what my parole-board friend told me tracks onto Mr. Cramer's fixated/opportunistic split, which seems valid to me.

Whether to *execute* a molester, or a pedophile, seems like a difficult policy question, tho of course the La. court wasn't faced with that. Is it more culpable to rape an 8-year-old than a 15-year-old? Why? Would we have the same reaction to the La. case if the child had been 15? Etc., etc.
5.23.2007 5:56pm
David M. Nieporent (www):
"If you get a death sentence for raping a little girl, and you get a death sentence for a raping a little girl and killing a little girl, and the only witness to the crime is the little girl, why not kill them all?"
While as a matter of cost-benefit analysis, this logic can't be questioned, it has one major flaw: you don't "get" a death sentence for raping a little girl. You get the chance of a death sentence for raping a little girl.

The reason not to kill them all is because your odds of a death sentence go way, way, way up if you do so. (And unless you're already known to the victim, a little girl is unlikely to make a particulary good witness anyway.)

That having been said, I probably ultimately agree as a policy matter. (Not to mention that -- at least from what I see on television -- people who rape children get plenty of additional punishment in prison above and beyond their formal sentence.)
5.23.2007 5:56pm
Anderson (mail) (www):
Rape requireS ... is that a 3-comment run for me? Back to discovery responses ...
5.23.2007 5:57pm
Clayton E. Cramer (mail) (www):

Dave N, isn’t there a further distinction though between a child molester and a child rapist (which narrows it even further)?
I've seen accounts in which molesters (defined as those who engage in acts other than penetration) attempted to rationalize that they weren't hurting kids--but just helping them to fully understand their sexuality.

Rapists tend to have other rationalizations. I've seen accounts where child rapists made no attempt at justifying this as anything other than, "If it feels good, do it." My wife saw one being interviewed on TV once who explained that the three year old seduced him, because she really wanted it.

I'm sure the molesters persuade themselves that they didn't do any permanent harm. Victims of molesters that I have known were often quite deeply damaged by it. One of my acquaintances who survived did an art project with other adult female survivors of child sexual abuse some years ago--and noticed that among more than a dozen members of the group--she was the only heterosexual. (What a surprise.) But I find it easy to believe that the victim in this case--whose injuries were described in excruciating detail in the decision--was damaged a lot more severely.

I Never Told Anyone is a collection of accounts by survivors. It is one of those books that you read a little, put it down, cry a little, and pick up again. One victim was raped when she was about six. The act was so violent it broke her pelvic bone. Unsurprisingly, she describes herself as part of a "women's separatist" commune in San Francisco. I can't say that I blame her.
5.23.2007 5:59pm
Thorley Winston (mail) (www):
Dave N, I think the distinction is that one can molest a child without actually raping them. In which case all child rapists are child molesters but not all child molesters are child rapists and all child molesters are pedophiles but not all pedophiles are child molesters. The Louisiana statute authorizing capital punishment for the rape of a child (disclaimer: I haven’t read it, only speculating) may not cover all sex-based crimes against children that fall sort of however they define “rape.”
5.23.2007 6:04pm
ed o:
I guess any kind of punishment should be prohibited because it might cause the offender to kill the victim to prevent them from testifying against him or her.
5.23.2007 6:16pm
Dave N (mail):
Thorley Winston,

You are right. I did not distinguish between those who "merely" touch a child and those who sexually assault a child. Had I made that distinction, I would have come up with your ultimate distinction, which is a good one: All child rapists are child molesters, but not all child molesters are child rapists; all child molesters are pedophiles; not all pedophiles are child molesters.

I would be interested in the recidivism statistics, because that is where this particular tangent of the thread started.
5.23.2007 6:18pm
Pub Editor:
Hattio writes:

To take the thread in another direction, is there any limitation to this in the definition of child or statutory rape? What I'm asking is could a similar case to Genarlow Wilson result in the death penalty to an 18-year old for having consensual sex with someone who is statutorily presumed to be unable to consent (such as someone just under 16 or just under 18.

According to the court's opinion (slip op at 20), the state prosecuted the defendant under La. R.S. 14:42, "Aggravated Rape." The statute defines several types of aggravated rape, including rape "[w]hen the victim is under the age of thirteen years." Id. at 14:42(A)(4). Subsection (D)(1) provides a standard penalty of life imprisonment for aggravated rape, but (D)(2)(a) allows for the death penalty specifically in the instance "[w]hen the victim is under the age of thirteen years."

I agree that it would be disturbing to think of a statutory rape charge of the Romeo-and-Juliet variety leading to a death sentence, but we have no evidence that Louisiana or any other state intends such a law. As written, the penalty only exists for rape of a victim 12 years old or younger.

The Louisiana statutes for rape (14:41) and aggravated rape (14:42) do not contain any "Romeo and Juliet" codicil. However, section 14:80, "Felony carnal knowledge of a juvenile," does allow minors to give "consent," although the act is still a crime. Here's the statute's relevant text:

§80. Felony carnal knowledge of a juvenile

A. Felony carnal knowledge of a juvenile is committed when:

(1) A person who is nineteen years of age or older has sexual intercourse, with consent, with a person who is thirteen years of age or older but less than seventeen years of age, when the victim is not the spouse of the offender; or

(2) A person who is seventeen years of age or older has sexual intercourse, with consent, with a person who is thirteen years of age or older but less than fifteen years of age, when the victim is not the spouse of the offender; or ...

The next section, 14:80.1, is similar:

§80.1. Misdemeanor carnal knowledge of a juvenile

A. Misdemeanor carnal knowledge of a juvenile is committed when a person who is seventeen years of age or older but less than nineteen years of age has sexual intercourse, with consent, with a person who is fifteen years of age or older but less than seventeen years of age, when the victim is not the spouse of the offender, and when the difference between the age of the victim and age of the offender is greater than two years.

Thus, Hattio, I appreciate your concern but don't think that that this case raises the problem. Incidentally, the victim in State v. Kennedy was 8 at the time of the rape (slip op. at 12).
5.23.2007 6:26pm
Dave N (mail):
ed o wrote:

I guess any kind of punishment should be prohibited because it might cause the offender to kill the victim to prevent them from testifying against him or her.

Not at all. There is a significant difference between a long prison sentence (child sexual assault in my state has a mandatory life sentence with parole eligibility after serving 20 years) and a death sentence. I do think that the potential for being sentenced to death for killing a child might deter someone from killing that child--a deterence already lost if the death penalty is a potential sentence for having raped the child.
5.23.2007 6:39pm
theobromophile (www):
Re: paedophiles v. child molesters: I was under the impression that many paedophiles sought out single mothers in order to gain access to their children. They do not find themselves in families with young girls and become attracted to them; rather, they get into such families because of their paedophilia.

Any truth to that?
5.23.2007 6:40pm
ed o:
so, the rational child rapist will rape knowing the potential for a life sentence but will not kill knowing the potential for the death penalty-this presumes a rational decision making process which the anti-death penalty crowd says does not occur in the real world
5.23.2007 6:48pm
Thorley Winston (mail) (www):
Not at all. There is a significant difference between a long prison sentence (child sexual assault in my state has a mandatory life sentence with parole eligibility after serving 20 years) and a death sentence. I do think that the potential for being sentenced to death for killing a child might deter someone from killing that child--a deterence already lost if the death penalty is a potential sentence for having raped the child.


I get the point you’re making (and it’s a good argument for why as a matter of public policy States may not want to make rape a capital offense to prevent the victim from being killed to prevent them from serving as a witness against their assailant). I tend to think that most people who would rape a child (as opposed to an adult where there is probably less likely to be as much physical harm to the victim) wouldn’t think twice about killing them anyway.

Also wouldn’t a child rapist see a long prison sentence where the general population metes out its own brand of “justice” on a child rapist as a possible death sentence (or worse)? Granted I haven’t been to prison but talking with laypeople about horrific crimes like this, it seems to me that people generally think that “bad things” happen to people who go to prison (Law &Order, SVU, Prison Break, Oz, etc.) – especially if the crime is against a child. It seems to me that if your average child rapist has the same general knowledge as your average layperson, they have to be aware of this as well.
5.23.2007 6:56pm
Anderson (mail) (www):
rather, they get into such families because of their paedophilia.

That's what Humbert Humbert did, at least.
5.23.2007 7:01pm
Dave N (mail):
ed o:

I am sympathetic to your argument and I assure you, I am not an ant-capital punishment person pretending to be something I am not. I am in favor of the death penalty for murder (though not all murders) and I will match my capital punishment credentials with anyone on this site.

I am not sure that most or even many child rapists are acting rationally in the sense you indicate (and would agree that none are acting rationally in engaging in these crimes in the first place). But some are. And my point is based on the "some" not the "most" or even the "many." As obnoxiously horrible as child rape is, I am uncomfortable with increasing the risk of any child rape culminating in child homicide.
5.23.2007 7:05pm
Anderson (mail) (www):
I am not sure that most or even many child rapists are acting rationally

Dave, how many people who rape adults do you think are acting rationally? Serious question.
5.23.2007 7:07pm
Thorley Winston (mail) (www):
And my point is based on the "some" not the "most" or even the "many." As obnoxiously horrible as child rape is, I am uncomfortable with increasing the risk of any child rape culminating in child homicide.


I’m kind of on the opposite side (just barely) on this issue but I don’t think Dave N’s concerns are illegitimate. As surreal as it may sound because the death penalty is such a hot button issue on which many people have very strong feelings, because there are so many different dimensions to it and sub-issues (e.g. how do protect against executing an innocent person, how we ensure that a “life sentence” is really for life, are we creating an incentive to murder potential witnesses when someone could face a death sentence for committing aggravated rape, etc.) that people really can disagree on good faith that don’t even touch on whether or whenever the State should be allowed to mete out the ultimate punishment (which I think it what drives most people’s feelings on the matter), that this IMO is an issue where people should aspire to discuss it as civilly as possible.
5.23.2007 7:25pm
whit:
i'd say most of them, based on my conversations with them. most rapists rape cause they want the pleasure/satisfaction it gives them to do it.

i realize that rational vs. irrational is less extreme than sane vs. insane (at least in the legal sense), but if somebody does an act because it fulfills a desire/need and makes them feel better - that seems to me to be rational.

most criminal acts are similarly rational ime.
5.23.2007 7:25pm
RainerK:
Interesting discussion. Especially since it turned to what actually constitutes "child rape".

If I'm not mistaken, the rationale for punishing black men for having sex with white women was, among others, that the act always was rape, had to be, as no white women would ever consent to having sex with a negro. So all a woman had to do was say she didn't consent. Case closed.
I have long been suspicious that the current sex abuse hysteria has been used by certain people to further their agendas. To the detriment of all our liberties.

Clayton E. Cramer makes a good case illustrating the ascendance of emotion over ratio. There will certainly never be a book published telling of those cases where children were not damaged by an encounter of a sexual nature. By definition, they can not exist.
So what really constitutes rape? Many people would feel quite comfortable to declare any sexual act with a minor rape, since the absence of consent means force was used.

Finally, the text of the La. law is illustrating: How can a consenting parter of sex be a victim? Apparently the inability of society to control carnal urges of the teenagers has resulted in making one a felons, the other a victim, depending on age. Hell of a solution.
5.23.2007 7:26pm
Fred Thompson (mail):
Justin: Sorry this thread isn't evolving to a standard of decency you approve of, and regret that you decided to take your ball and go home....
5.23.2007 7:28pm
Dave N (mail):
Anderson,

That was the point of my parenthetical "(and would agree that none are acting rationally in engaging in these crimes in the first place)."

I meant acting rationally in the sense of ed o's suggestion that a child rapist would not be thinking rationally about what the sentence would be if he was caught. I fully agree that those who would rape a child (or even an adult) are not acting rationally in the sense you mean.
5.23.2007 7:38pm
theobromophile (www):
Granted I haven’t been to prison but talking with laypeople about horrific crimes like this, it seems to me that people generally think that “bad things” happen to people who go to prison

John Geoghan, one of the Boston priests, was killed while in jail. To the extent that such an anecdote may be applicable to the wider world, yes, those who do bad things to kids get treated horribly in prison.
5.23.2007 7:48pm
Dilan Esper (mail) (www):
Footnote 29 and the accompanying text in the Louisiana opinion are extremely troubling. The Court seems to be saying that it gets to pick and choose which US Supreme Court precedents it wishes to follow based on how it thinks Roberts and Alito are going to come out.

This is completely wrong and quite dangerous. Only the Supreme Court can overturn its own precedents, and that doesn't happen because a new judge is confirmed. There are plenty of examples where new justices have upheld settled precedents that they may have disagreed with, including Casey (upholding Roe) and Dickerson (upholding Miranda).

Obviously, the ideologues on the Lousiana Supreme Court don't like Coker and Roper very much and would like to find an excuse not to follow them. But they are bound by them, and the Court should take this case if for no other reason than to reaffirm the Louisiana Supreme Court's responsibility to obey higher court decisions that it doesn't like.
5.23.2007 8:36pm
Dilan Esper (mail) (www):
Footnote 30 is troubling for the same reason. So what if the late Chief Justice Rehnquist didn't think international condemnation should matter with respect to whether the challenged practice was a cruel and unusual punishment? He was outvoted, and the Lousiana Supreme Court is bound to follow the holding of the US Supreme Court that it does matter.

Seriously, if people are unwilliing to obey the controlling holdings of US Supreme Court cases, they shouldn't be sitting on a rural small claims court, let alone the court of last resort of a state.
5.23.2007 8:42pm
Dilan Esper (mail) (www):
Regarding the Court's analysis of evolving standards of decency, first, the Court counts jurisdictions that impose the death penalty for other non-homicide crimes. There's no way they shold count. To see why, imagine the following thought experiment. California adopts the death penalty for parking violations (this is actually stolen from an old Steve Martin joke). Now, is it relevant to whether imposing that punishment is consistent with our evolving standards of decency that Washington imposes the death penalty for treason or that Florida imposes it for drug kingpins? Didn't think so.

Second, they are refusing to count states that abolished the death penalty entirely. Again, this is in CLEAR CONTRAVENTION OF CONTROLLING US SUPREME COURT AUTHORITY. Scalia argued in his dissents that non-capital punishment jurisdictions shouldn't count. But THE MAJORITY COUNTED THEM. These Louisiana Supreme Court justices are, unfortunately, living up to the high standards set by state courts in the South decades ago.
5.23.2007 8:55pm
c.f.w. (mail):
If this is ok, why not death for child molesting of the sort engaged in by Mr. Klaudt in North Dakota?

Why not death for aggravated insider trading (Nacchio is up for life)?

Why not stone to death for dating outside the faith? There must be at lest 4 cultural groups that support that, and it seems to be getting more popular.

Punishment inflation needs to be controlled. It is costly in the extreme to confine for the numbers of years bandied around these days.

For crimes with 8-10 year sentences in the past (such as child molestations), the debate is now more like 20 to 40 years or life.

Drug issues are inflating sentences, I suspect.

In the punishment context, I think it is not offensive to compare other countries and US from the past to US now. Compare the facts as to punishment - then apply US law.

The opinion writer talks about "capitalizing" certain crimes. Why not say it clearly - with words like "kill" or at least "death"? Shame on his blood-thirsty soul.

How is this helpful for the poor 8 year old who gets haunted by this case for 20 years, while it winds its way through the courts?

Who was imposing death for non-death in or around 1787 in the US? Not putting death on the books - killing people. Name some cases like this where executions occurred and then we can talk original intent.

I would rather see creative ways of financing the victims (compensating them with government money if necessary) as opposed to putting billions more into the prison system.

CA now spend more on its prison system than on higher education.

Other than that, I like DP for child rape fine. Death does not turn back the clock - if it did, I could say yes to death for child rape. But we have no time machine, so we need to do something more sophisticated - for victims and for the state.
5.23.2007 9:15pm
nunzio:
Dilan Esper:

The Missouri Supreme Court in the Roper case did not follow Supreme Court precedent (which said it's not unconstitutional to impose capital punishment on a 17 year old) and the majority in Roper said nothing about this CLEAR CONTRAVENTION OF CONTROLLING US SUPREME COURT AUTHORITY. The Supreme Court only takes the "thou must not anticipate the overturning of our precedents" seriously here and there.
5.23.2007 9:17pm
NickM (mail) (www):
Too bad the Supreme Court forbade (as an Eighth Amendment violation) the compromise of complete castration.

Nick
5.23.2007 9:26pm
elChato (mail):
For crimes with 8-10 year sentences in the past (such as child molestations), the debate is now more like 20 to 40 years or life.

Now there's a troubling trend; longer sentences for child molesters. It's almost enough to make you lose faith in our evolving standards of decency. Maybe we can find some judges who will cherry-pick some lax laws and identify a countervailing trend we can rely on to countermand legislative will.
5.23.2007 10:37pm
Clayton E. Cramer (mail) (www):


I am not sure that most or even many child rapists are acting rationally



Dave, how many people who rape adults do you think are acting rationally? Serious question.
Rapists that use condoms so that they don't leave any evidence I would say are "acting rationally."
5.23.2007 10:46pm
Clayton E. Cramer (mail) (www):
c.f.w. writes:

Why not death for aggravated insider trading (Nacchio is up for life)?

Why not stone to death for dating outside the faith? There must be at lest 4 cultural groups that support that, and it seems to be getting more popular.

Punishment inflation needs to be controlled. It is costly in the extreme to confine for the numbers of years bandied around these days.

For crimes with 8-10 year sentences in the past (such as child molestations), the debate is now more like 20 to 40 years or life.

Drug issues are inflating sentences, I suspect.
Someone obviously doesn't know any victims of child molestation, and therefore has no idea how serious the damage it does.

If you think that "dating outside the faith" is comparable to child molestation, move to San Francisco. You'll fit right in.
5.23.2007 10:58pm
Dilan Esper (mail) (www):
nunzio:

Two wrongs don't make a right.
5.24.2007 1:04am
Anderson (mail) (www):
Again, this is in CLEAR CONTRAVENTION OF CONTROLLING US SUPREME COURT AUTHORITY.

Uh, no. The Supreme Court has not *held* that there is a certain method of counting states, etc., that *must* be applied in a DP case.

The La. court may, arguably, have gone against the spirit of recent rulings, but when you say "clear contravention of controlling authority," you had better have something stronger to go on. That's a very serious claim to make against the La. court.
5.24.2007 10:08am
ohwilleke:
The non-murder grounds for the death penalty, with a couple of recently enacted exceptions for child rape are as follows:

The possible non-homicide grounds for the federal civilian death penalty are:
* Espionage
* Treason
* Trafficking in large quantities of drugs
* Attempting, authorizing or advising the killing of any officer, juror,or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs.

A small number of states, in theory, permit the death penalty for reasons other than aggravated murder (treating perjury causing execution as a form of murder). They are:

* Treason (Arkansas, California, Colorado, Georgia, Louisiana)
* Train Wrecking (California)
* Aggravated Kidnapping (Idaho, Kentucky)
* Aircraft Hijacking (Georgia)
* Capital Drug Trafficking (Florida)
* Capital Sexual Battery (Florida)
* Aggravated Rape of Victim Under Age 12 (Louisiana)

Except in the cases of drug trafficking (federal and Florida), and child rape (Florida, Louisiana and a couple of newcomers), the notion seems to be that the cases are ones where there is a very high probablility of a death resulting from the illegal act which could quite plausibly happen after the conviction, or a very high probability of mass death narrowly averted, and that all the culpable acts of the defendant which could lead to that death have already occurred.

Also, it is notable that no one has secured a non-murder related death execution at the federal level since 1963, despite the fact that it is theoretically possible. I'm not aware of

The reason to be particularly concerned about child rape in this list is that there are a number of instances historically of child rape cases based upon testimonial rather than physical evidence being overturned later because the testimony was unreliable or suggested. The room for error seems greater.
5.24.2007 4:30pm
ohwilleke:
The non-murder grounds for the death penalty, with a couple of recently enacted exceptions for child rape are as follows:

The possible non-homicide grounds for the federal civilian death penalty are:
* Espionage
* Treason
* Trafficking in large quantities of drugs
* Attempting, authorizing or advising the killing of any officer, juror,or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs.

A small number of states, in theory, permit the death penalty for reasons other than aggravated murder (treating perjury causing execution as a form of murder). They are:

* Treason (Arkansas, California, Colorado, Georgia, Louisiana)
* Train Wrecking (California)
* Aggravated Kidnapping (Idaho, Kentucky)
* Aircraft Hijacking (Georgia)
* Capital Drug Trafficking (Florida)
* Capital Sexual Battery (Florida)
* Aggravated Rape of Victim Under Age 12 (Louisiana)

Except in the cases of drug trafficking (federal and Florida), and child rape (Florida, Louisiana and a couple of newcomers), the notion seems to be that the cases are ones where there is a very high probablility of a death resulting from the illegal act which could quite plausibly happen after the conviction, or a very high probability of mass death narrowly averted, and that all the culpable acts of the defendant which could lead to that death have already occurred.

Also, it is notable that no one has secured a non-murder related death execution at the federal level since 1963, despite the fact that it is theoretically possible. I'm not aware of

The reason to be particularly concerned about child rape in this list is that there are a number of instances historically of child rape cases based upon testimonial rather than physical evidence being overturned later because the testimony was unreliable or suggested. The room for error seems greater.
5.24.2007 4:30pm
David M. Nieporent (www):
Dilan, if the Supreme Court says that the Constitution requires a particular procedural approach to a particular situation, then it does until that Court decision is rejected by Amendment or a new Court decision. But the mere fact that the Supreme Court uses a particular analytical approach in a particular case is not equivalent to holding that a particular analytical approach is required.
5.24.2007 4:36pm
markm (mail):
Re the "rationality" arguments: It's entirely possible that a child rapist will not think about the possible penalty before or during the rape, but will think about it afterwards. So at that point he may decide rationally whether to kill the kid or leave a living witness, depending on the penalties and his judgment of the odds. What I can't tell is whether, if one option leads to a death sentence and the other to life without parole, this would cause more of them to leave the kid alive, or to minimize their chances of serving a life sentence by killing...

In the 1700's and early 1800's, robbery and even non-violent thefts were often punished with death, but gradually legislatures reduced the maximum sentence to prison terms. Is there evidence that reducing the sentence for armed robbery decreased the chances of a robber killing his victim, and by how much? Not that this would tell us a whole lot about how child rapists would decide; robbers are more likely to be rational in the first place, the sentences changed from death to a term of years, rather than life, and serving a term among other prisoners is considerably harder for a child rapist.
5.24.2007 5:31pm
markm (mail):
ohwilleke: I suspect the reason that child rape convictions have been overturned more often is that rapists are much more likely to leave DNA evidence than criminals in general, especially in places where a non-match is conclusively exculpatory.
5.24.2007 5:35pm
Dilan Esper (mail) (www):
Anderson and David:

It isn't simply that they used a certain method of counting-- it's that the dissent used a different method of counting. So the majority, by clear implication, rejected that method.

Here's an example: suppose a case comes down in which the Court applies, for the first time, intermediate scrutiny to a 14th Amendment claim of governmental discrimination based on sexual orientation. Scalia dissents-- as he surely would-- and says, no, you should use rational basis. Now, you sit on the Lousiana Supreme Court and someone brings before you a case claiming governmental discrimination based on sexual orientation. Are you seriously claiming you aren't bound by the Supreme Court's decision.

Face it, this was 6 right wing judicial activists who didn't like the Yankees telling them they can't execute retards or young hoodlums anymore. So they just ignored the decisions they didn't agee with.
5.24.2007 8:10pm
c.f.w. (mail):
I have served as prosecutor in child molest cases and do in fact know victims of child abuse (including under 12s).

Keep in mind prosecutors do not represent those victims who show up in court - they represent the state. If the prosecution could produce the economic equivalent of 8-10 years in prison for the victim who shows up in court (say $50,000 per year or $400,000 to $500,000 for an 8-10 year sentence), there might be a point to saying longer sentences are all about helping the victim who shows up in court, we need to keep up with inflation, so we need more than $400,000 to $500,000 for each average child molest victim who shows up in court.

If $2,000,000 (40 x $50,000) awards from the fisc were routinely being allocated to actual child molest victims who show up in court, the Cramers of the world would be up in arms.

Further points to note - we are just seeing the tip of the iceberg of child molest victims in court. If there were fortunes to be made by showing up in court with child molest testimony, we could see over 50% (maybe over 90%) of all under 18s showing up in court with a true tale to tell. It is part of life, and has been for millenia. Under 18s do have sexual contacts that are technically criminal - they are perhaps programmed that way - sex drive and all that.

I take with a large grain of salt the idea that routine child molest cases must involve irreparable psychological injury to child victims that must be cured (not by counseling and supporting the child victim financially) but by sentences that are 4-5 times longer than in lots of other successful countries.

Most of the deep distress and outrage and blood lust in the child molest cases is, in my experience, coming from the parents, without much thought about how that acted-out trauma to the parent is potentially aggravating the trauma to the child.

Another big motivator is the child molest cases are not hard to win, sentences available are huge, and that means promotions for prosecutors. But that "promotion of prosecutors and judges we like" justification is not about helping actual victims in court.
5.25.2007 2:39pm
Clayton E. Cramer (mail) (www):

If $2,000,000 (40 x $50,000) awards from the fisc were routinely being allocated to actual child molest victims who show up in court, the Cramers of the world would be up in arms.
Considering how often child molestation victims end up becoming long-term costs to the state (Eileen Wuornos being one example), maybe we aren't spending orders of magnitude less than that right now--although not for counseling, but future prison time, especially boys.

And yes, the objective of locking up child molesters for a long time isn't for the benefit of the victim--who, in ten years, will be too old to be of interest to the molester. It is to protect other kids, since at least the fixated pedophiles don't seem to stop.

Further points to note - we are just seeing the tip of the iceberg of child molest victims in court. If there were fortunes to be made by showing up in court with child molest testimony, we could see over 50% (maybe over 90%) of all under 18s showing up in court with a true tale to tell. It is part of life, and has been for millenia. Under 18s do have sexual contacts that are technically criminal - they are perhaps programmed that way - sex drive and all that.
You are purposefully and misleadingly blurring the line between minors having sex with other minors, and adults molesting children. I've read a lot of surveys on this subject, and in the general population, females typically report about 30-33% had unwanted sexual contact as a minor, and boys are 8-15%.


I take with a large grain of salt the idea that routine child molest cases must involve irreparable psychological injury to child victims that must be cured (not by counseling and supporting the child victim financially) but by sentences that are 4-5 times longer than in lots of other successful countries.
I'm trying hard to remember a child molestation victim that I have ever talked to that wasn't pretty seriously damaged by the experience. Note: child molestation victims--not the misleading example of two 15 year olds that get together for sex.

Another big motivator is the child molest cases are not hard to win,
Well that's just fascinating to hear. One of the reasons why some states allowed children to testify without confrontation (clearly unconstitutional) was because it wasn't easy to win these cases. Children are notoriously poor witnesses in cases like this, and unless the defendant has done something incredibly stupid (like take pictures, or leave semen), I would expect that these cases turn rapidly into "she said, he said," which is hardly a easy proof.

I sat in on some preliminary hearings for a friend of a friend who was accused, and even with a limited, partial confession after many hours of interrogation, and some less than perfect evidence of digital penetration, it was not a strong case, and he was released. (I would never allow him around my kids, though.)
5.26.2007 12:06am
Clayton E. Cramer (mail) (www):
markm writes:

In the 1700's and early 1800's, robbery and even non-violent thefts were often punished with death, but gradually legislatures reduced the maximum sentence to prison terms. Is there evidence that reducing the sentence for armed robbery decreased the chances of a robber killing his victim, and by how much? Not that this would tell us a whole lot about how child rapists would decide; robbers are more likely to be rational in the first place, the sentences changed from death to a term of years, rather than life, and serving a term among other prisoners is considerably harder for a child rapist.
A nice idea, but much of America's decapitalization of commmon crimes was a direct result of the American Revolution. Even if the quality of data on crime rates and executions were good (and especially on crime rates, fragmentary doesn't even begin to describe it), there are so many dramatic changes that happen during that period as to make the attempt impossible.
5.26.2007 12:08am
Clayton E. Cramer (mail) (www):

The reason to be particularly concerned about child rape in this list is that there are a number of instances historically of child rape cases based upon testimonial rather than physical evidence being overturned later because the testimony was unreliable or suggested. The room for error seems greater.
Yup. There's a history in the last 30 years of prosecutorial abuse in the area of child sexual abuse that raises very serious questions. Of course, I would also expect that juries are aware of this. I know that if I ever ended up on a jury for a case like this, I would temper my revulsion at the crime with the knowledge that children are especially prone to manipulation.

A neighbor's son about 8 was repeatedly raped--no question about it, anal rips and all. Her ex-husband (the boy's father) was at first who the boy identified. Later, as the father (who had a lot of money to spend, while the mother had nothing) piled on the material goodies, the boy could not identify who did this to him--but he was still driven into hysterics by the site of the Shamrock Materials logo. (His father worked for Shamrock Materials, and drove one of their trucks.) Eventually, all charges were dropped--and the father was given custody.

Sonoma County justice--what a disaster.
5.26.2007 12:14am