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Reader Poll on Allowing the Death Penalty To Punish the Rape of A Child:
In light of the Supreme Court's recent decision to hear a case on whether states can impose the death penalty for rape of a child, I am curious about reader opinion on such laws. So here's a reader poll. Imagine your state is considering a law to allow a jury to impose the death penalty for a defendant who rapes a child. Now answer the following question:

Which of the following positions best describes your view — both as a matter of policy and of constitutional law — on a state law allowing the imposition of the death penalty for rape of a child?
I would support this law as a matter of policy and I think it is constitutional.
I would support it as a matter of policy and I do not know if it is constitutional.
I would support it as policy although I think it is unconstitutional.
I would be against it as a matter of policy and I think it is unconstitutional.
I would be against it as a matter of policy and I do not know if it is constitutional.
I would be against it as a matter of policy although I think it is constitutional.
  
Free polls from Pollhost.com


Jim at FSU (mail):
I don't see why the death penalty can't be on the table for all violent felonies. If a prosecutor + jury + judge all agree a criminal deserves to die for a particularly heinous crime, why deny justice just because he didn't happen to commit a homicide?

I was under the impression that the remaining credible reason the death penalty was struck down in Furman was discriminatory application... Or are we still laboring under the dubious premise that rape isn't a serious injury? That part of Furman always irritated me.
1.5.2008 4:09pm
BruceM (mail) (www):
Jim:

The death penalty is bad policy for crimes less than murder because it encourages the criminal to kill the victim, who would otherwise be the primary witness against the criminal at trial. If you're going to be executed for raping a child, you might as well murder the child after the rape to prevent the child from testifying.

Any policy that makes murder logical and rational should be avoided, to say the least. Why leave the victim alive if killing the victim won't subject you to a higher punishment?
1.5.2008 4:14pm
Mr. Liberal:
For the life of me, I can't think of a good reason for letting a child rapist live. I am more supportive of the death penalty for child rape than I am for many murders. While killing can often be provoked and even understandable if not justifiable or excusable, there never is a good reason other than pure evil for child rape.

Of course, in my view, for the death penalty to apply, one should be extra certain that the accused committed the crime. But once on is absolutely certain that the accused is in fact guilty of child rape, I believe they should be executed forthwith.
1.5.2008 4:38pm
Mr. Liberal:
BruceM,

The death penalty may deter the rape in the first place. And, even without the death penalty, these sorts of rapes can and do lead to murder.

I am not sure which policy would minimize the murder rate.

I am also not sure how to weigh child rape on one hand and murder on the other. How many child rapes have to be deterred to balance the difference between a child rape without murder versus a child rape with murder.

Without hard data proving that the murder rate would rise in a very significant manner, I am in favor of the death penalty for child rapists.
1.5.2008 4:46pm
Duffy Pratt (mail):
How old would the child have to be, and should consent be an issue? How much violence would have to go with the rape?

Snarkiness aside, would you be in favor of executing the guy who got Britney's sister pregnant?
1.5.2008 4:47pm
Hoosier:
Wow. So Mr. Liberal says "For the life of me, I can't think of a good reason for letting a child rapist live." And Mr. Conservative (My birth name) opposes peacetime capital punishment as a matter of policy and morality.

Mr. Liberal--I hope you understand that I am NOT saying that you are wrong. Perhaps I am. Just saying that, reading this blog, one starts to wonder if some stereotypes might need an adjustment every now and then.

And on that note: Prof. Kerr: Is there some reason that people who voted with me are coded in pink? Just what are you implying?!
1.5.2008 4:50pm
Hoosier:
"Snarkiness aside, would you be in favor of executing the guy who got Britney's sister pregnant?"

No. But for the news editors who decided this was a "Top Story"? My resistance to the death penalty might be wavering on this one.

Or was that snarky?

If so, a non-snarky answer: I hope we aren't talking about capital punishment for statutory rape here. Are we?
1.5.2008 4:53pm
Eluchil:
The Louisiana law at issue requires the victim to be 12 years old or younger but doesn't, IIRC, have a separate requirement for physical violence or coercion. And since Roper limits the death penalty to those 18 or over at the time of the commission of the crime there is no "Romeo &Juliet" danger here. There is also the normal balancing between aggravating and mitigating factors.

On the question itself, I find the policy issue much harder than the Constitutional issue, but then I think that the Court has rather over-extended the 6th Amendment rather than the reverse.
1.5.2008 5:21pm
DangerMouse:
The death penalty is bad policy for crimes less than murder because it encourages the criminal to kill the victim...

Bad policy, or unconstitutional? Or does it matter with the Court anymore? (Probably not)
1.5.2008 5:38pm
Eluchil:
For "6th" in the post above read "8th". The Court's 6th amendment jurisprudence is not at issue here, but rather the 8th Amendment's ban on "cruel and unusual punishment".
1.5.2008 5:43pm
Lee2 (mail):
Fortunately, my sample size is small, but I don't know a single person who was raped or severely sexually abused as a child (definitely under age 12) who hasn't suffered as an adult from a severe mental illness such as bipolar disorder or the like.

I am generally opposed to the death penalty for moral and practical (cost &administration) reasons, but I somewhat inconsistently believe that if the death penalty for murder exists, it might as well be extended to cover the rape of a child.
1.5.2008 5:44pm
REPEAL 16-17 (mail):
This will probably be another case for the Kennedy Court. 4 Justices will vote to uphold the sentence, 4 will vote to declare it Unconstitutional, and then they will look at Anthony.
1.5.2008 5:56pm
Stephen Aslett (mail):
Sigh.

Let's just list the arguments for and against and close this thread before it turns into a shouting match, shall we?

Reasons why the death penalty for child rape is unconstitutional and bad policy:

1) Most states don't have the death penalty for child rape. Even if you count states that allow the death penalty for certain nonhomicide crimes like treason and air piracy, no one is sentenced to death under those statutes. "Evolving standards of decency" in the United States are thus against the death penalty for child rape.

2) The death penalty for child rape is disproportionate. The death penalty for murder is proportionate because the murderer kills his victim. The death penalty for child rape is disproportionate because the rape victim lives. Thus, it's unconstitutional under a proportionality analysis.

3) The death penalty for child rape isn't an effective deterrent. Child rape most often occurs between relatives and is not premeditated. If anything, the death penalty for child rape encourages the rapist to kill his victim and discourages children raped by relatives from reporting the abuse for fear that dad/uncle/grandpa, etc. will be killed.

4) Children are generally unreliable witnesses, making false convictions for child rape more likely than for other types of crime. The death penalty is a serious enough punishment that it should be reserved for crimes where evidence is generally more likely to be reliable. (In fact, rape is one of the crimes for which false convictions--even absent the involvement of children--are particularly high.)

5) Most countries don't impose the death penalty for child rape, even among countries that allow the death penalty. Thus, evolving standards of decency globally are against it.

Reasons why the death penalty for child rape is constitutional and good policy:

1) The death penalty for child rape was allowed at the framing and for a long time afterwards. Thus, from an originalist perspective, it's constitutional. The evolving standards of decency test is not the proper inquiry for Eighth Amendment analysis.

2) Even though most states don't have the death penalty for child rape, the wind is blowing in that direction. Six states now allow the death penalty for child rape (Louisiana, Texas, Florida, Montana, Oklahoma, and South Carolina) and similar child rape bills are pending in other states. The "evolving standards of decency" test shouldn't be used as a one-way ratchet to squash this movement, which may be late in coming only because states had previously been too broad in their reading of Coker.

3) The death penalty for child rape is not disproportionate. Short of murder, rape--especially of a child--is one of the most psychologically damaging crimes one can commit. Some would say that it is "worse than death." (Rejoinder: equating child rape victims with murder victims is demeaning, implying that they can never get over their trauma and enjoy happy, productive lives.)

4) The death penalty would deter child rape. Even if the data is unclear on deterrence, that's all the more reason states should be allowed to experiment to see if their child rape rates decline.

5) The death penalty for child rape reflects an appropriate level of retribution. Society does not want to tolerate child rape, and the clearest way for society to express its disapproval is by imposing the death penalty for child rape. (Rejoinder: retribution via death may not be the most appropriate punishment for child rapists, the majority of whom were themselves sexually abused as children and more predisposed to this crime than the rest of the population.)

6) What most countries think about child rape is irrelevant. Even if one believes in the evolving standards of decency test, it shouldn't encompass the practices of other countries.

------

I'm sure I've missed an argument or two, but I think that about covers it.
1.5.2008 6:02pm
wekt:
For violent rape of a child: I think the death penalty is morally justified here if it is morally justified for any crime. On whether or not the death penalty (as opposed to life imprisonment) is good policy, I don't really feel strongly one way or the other.

Also, rape is not necessarily worse than non-sexual torture or bodily violation (if in doubt about the latter, consult a suitable reference on parasitic entomology and use your imagination), so I would hold that the death penalty would also be applicable for these non-homicidal crimes.

(BTW, I'm assuming "child" here means "a person between birth and puberty", not merely "a person below the legal age of majority".)
1.5.2008 6:04pm
alias:
Aslett writes: (Rejoinder: retribution via death may not be the most appropriate punishment for child rapists, the majority of whom were themselves sexually abused as children and more predisposed to this crime than the rest of the population.)

First, thanks for the comment. Most dp threads devolve into shouting matches, but hopefully that'll help.

On this "rejoinder," though, aren't most crimes are committed by people who are more "predisposed" in some way than the rest of the population?

Many thieves and murderers and drug dealers grow up around theft, murder and drugs. Many people who steal don't have a lot of money. Many people who kill were victims of violence at some point in their lives or have something in their past that makes them not very well adjusted.

Your rejoinder to #5 for the dp actually provides further support to your #3 argument in favor of the dp.
1.5.2008 6:26pm
Eli Rabett (www):
You have somewhat of a push poll here, there should be a choice of opposing the death penalty in all cases as a matter of policy.
1.5.2008 6:27pm
jim47:
stephen: how about these additional ones based on level of generality

Capital punishment for non-homicide crimes is unusual, therefore unconstitutional.

vs.

Capital punishment for the most serious of crimes is not unusual, therefore it is constitutional.
1.5.2008 6:40pm
Jeremy Pierce (mail) (www):
There need not be any choice opposing the death penalty in all cases. People who oppose it in all cases will oppose it in this case, and this question is only about this case.

What there isn't is any agnostic option about whether it's a good policy. There are agnostic options for whether it's constitutional. But I think it's clearly constitutional and don't know if it's a good policy. So I don't fit any of the choices. There also isn't an option for someone who thinks it's unconstitutional but doesn't know if it's a good policy.
1.5.2008 6:46pm
TechieLaw (mail) (www):
As one of the few people here who have actually sat -- and come to a decision -- on a jury deliberating child rape, I'd like to come down on the side of "I would be against it as a matter of policy and I do not know if it is constitutional." I simply don't have the knowledge of constitutional law to speak to the constitutionality of executing child rapists.

On the other hand, I have also had the experience of sitting on a jury deliberating the guilt of somebody accused of such a crime. For those wondering, it was most certainly not a "fun" experience, and was in fact an extremely difficult trial to sit through. We had to make an extraordinarily tough decision based almost entirely on the credibility and memory of a nine-year-old who was only five years old at the time of the alleged acts by her father.

As a jury we did our job and deliberated, considering every possible angle. The difficulty was that there was no corroborating evidence and there simply could not possibly be any given the facts. Either you believed the girl or you didn't. In the end, I decided that if these facts weren't enough to convict, anybody who committed a similar crime would get away with it each and every time.

In other words, I sent somebody to prison for at least twenty years based almost solely on the word of a sobbing nine year old.

For the purposes of this case, I'm happy with the result. After attending the sentencing and listening to some facts not permitted into evidence during the trial, most of my remaining doubt went away. But coming out of that jury room and saying "guilty" to that man's face, I *did* in fact have some lingering doubt (although not beyond a reasonable doubt).

I was willing to send a man to prison for at least 20 years based on that evidence. Having to consider the death penalty would have made the experience even more stressful, and I'm not sure I would have been willing to find him guilty if the next step was a death penalty deliberation. Nor do I think (given the facts) that the death penalty would have deterred the guy.

I have told some friends that my week-long jury experience was probably worse than almost any other possible jury experience, including a murder trial.

Yes, he was (and is) a despicable human being who committed horrendous acts against another human being. But the issue is whether changing the trial into a death penalty trial would have affected my vote. I think it might have. I'm comfortable knowing that I might have made a mistake by sending the rapist to jail for most of his remaining life. In the balance of things, the lingering doubt just wasn't worth the risk to letting him potentially do this to another kid. However, I don't think that I could have ever considered those facts in the same rational way if the death penalty had been on the table.
1.5.2008 6:52pm
BruceM (mail) (www):
Can anyone give me a reason why capital punishment for speeding (driving 36 in a 35 zone) is unconstitutional? If so, what about DWI? What about repeat DWI? What about repeat DWI that results in vehicular manslaughter?
1.5.2008 6:55pm
Thales (mail) (www):
Let's not neglect the economically oriented marginal deterrence argument: If a criminal faces the death penalty for a victim crime of less than murder (say armed robbery or rape), he may as well murder the victim--why leave a living witness?

Or as the old English saying about the "bloody code" (where about 200 different offenses were death-eligible) had it, "as well hang for a sheep as for a lamb" (it was considered a greater offense to steal or kill female livestock).
1.5.2008 7:00pm
Thorley Winston (mail) (www):
What there isn't is any agnostic option about whether it's a good policy. There are agnostic options for whether it's constitutional. But I think it's clearly constitutional and don't know if it's a good policy. So I don't fit any of the choices.


That's where I'm at as well which is why I didn't answer the poll. IMO Coker was clearly wrongly decided and should be overturned leaving the States to each decide which crimes do or do not warrant capital punishment. As far as whether I'd support making child rape a capital offense as a matter of policy, I honestly don't know.
1.5.2008 8:02pm
Perseus (mail):
I vote: I do not know whether I support such a law as a matter of policy, but I think it is constitutional.
1.5.2008 8:12pm
Alex F:
For me, the policy question would hinge on the empirical results (e.g. would more perpetrators kill their victims?)of capitalizing vs. not capitalizing. As a purely moral matter, I am comfortable with the idea of the death penalty for rapists of children and adults.

I would lean towards the view that capitalizing rape is constitutional, but I see no support for the half-assed compromise that executing child rapists IS constitutional while executing other rapists isn't. Making the distinction as a matter of policy, in the legislature, is one thing (misguided in my opinion but within a legislature's discretion), but claiming that the Constitution's text supports such a distinction is absurd.
1.5.2008 8:14pm
GaryC (mail):
I think that the death penalty should be available as a penalty in cases of child rape with special circumstances, in much the same way that it is available in cases of first-degree murder with special circumstances.

That is, there would be a separate penalty phase, in which any scintilla of residual doubt would be a mitigating factor. There would be a long list of possible mitigating factors, and a relatively short and specific list of aggravating factors. Testimony from other victims, which might not be admissible during the guilt phase, could be admissible here, especially if there were convictions in the earlier cases.

My one experience with this matter was as a juror in a case in which the defendant was convicted of kidnapping (from her bed), raping, and murdering his 11-year-old niece. Testimony from the women he had previously raped, and beaten brutally, was very convincing. The jury recommended the death penalty, and the judge agreed. The defendant will presumably sit on death row until he dies of old age. (When I checked after the trial, more death row inmates in my state had been killed by other inmates or died of natural causes than executed by the state.)
1.5.2008 8:30pm
taney71:
I think the death penalty is bad policy (although I am changing on this one) but I think it is clearly constitutional.
1.5.2008 9:15pm
Public_Defender (mail):

I think that the death penalty should be available as a penalty in cases of child rape with special circumstances, in much the same way that it is available in cases of first-degree murder with special circumstances.


Like it is in murder cases? In some states with the death penalty, it's really hard to commit murder without at least arguably committing a death-eligible murder. When a case arises that doesn't meet the definition, the prosecutors run to the legislature to "close the loophole."

As to child sex cases, given that suicide is a major risk when these guys are caught, the death penalty is unlikely to be a deterrent. Many of these guys are already willing to self-impose the death penalty, so the threat of having the state do it doesn't add a whole bunch.

Finally, for those who stay alive, the beauty of sentences of life without parole (or prison terms that are the functional equivalent), is that these guys get an appeal or two. If they lose, they pretty much drop off the radar screen forever.

By contrast, people sentenced to death have a lot more hearings and appeals. Attentive victims have to attend a lot more hearings. More sentences and convictions are reversed. More cases are retried.

A dirty little secret about the death penalty is that it can inflict a lot more pain on victims than locking someone up forever. The upside is that legislators get good publicity when they pass they law and prosecutors get good publicity when they seek the penalty.

Give child rapists a fair trial. If convicted, lock them up forever out of sight.
1.5.2008 10:13pm
Realist Liberal:

1) Most states don't have the death penalty for child rape. Even if you count states that allow the death penalty for certain nonhomicide crimes like treason and air piracy, no one is sentenced to death under those statutes. "Evolving standards of decency" in the United States are thus against the death penalty for child rape.


I don't think it is fair to use this claim under the evolving standards of decency argument. The reason I say this is that many states assumed, after Coker, that the Supreme Court would hold that the death penalty for any crime other than murder (with the exception of treason) is unconstitutional. The swing is actually towards holding that this is okay. My recollection is that twenty years ago, no state had the death penalty for child rape, now five states do.

For the record, I am against DP for child rape as a matter of policy and am unsure whether or not it is constitutional (although I think it probably is).
1.5.2008 10:27pm
advisory opinion:
Why is the death penalty (for any kind of rape) "clearly constitutional" after Coker?
1.5.2008 10:47pm
Stephen Aslett (mail):
@alias

You're right for the most part. The point I was trying to make is that, even though it's no excuse that your environment made you more predisposed to commit a crime, it's still a mitigating factor for punishment. It won't get you out of prison, but I don't see why horrible sexual abuse in childhood--leading to horrible ideas about sex as an adult--shouldn't at least way against the imposition of the death penalty.

Now, of course, the rejoinder to this is that mitigating factors such as childhood sexual abuse can always be factored into death penalty sentencing and that forbidding the death penalty on the basis that a majority of child rapists suffered such abuse is overkill. Instead, we should leave it up to juries to decide whether childhood sexual abuse is enough of a mitigating factor in each individual case. In fact, not allowing consideration of mitigating factors would be clearly unconstitutional.

http://www.oyez.org/cases/1970-1979/1975/1975_75_5491/

I'm not advocating either position nor am I presenting the fullest expressions of these arguments. I was just rattling them off as fast as I could. Some of those arguments are definitely worse than others.
1.5.2008 11:49pm
Jake437 (mail):
I'm a man. Are the people who believe that the death penalty for child rapists is good policy suggesting that if a female teacher (think Mary Kay Le Torneau) had seduced me when I was 11, it would be appropriate to put her to death? Or would that case be "different" because it involves a boy being abused rather than a girl, and a female abuser rather than a male one?

Child rape is obviously a horrific crime, but I do not believe that it is in any way comparable to murder, even if it does screw the victims up terribly. If I was given a choice - either be sexually abused once as a child, or be put on death row and count down the days until my execution - I would choose the former without a second thought. I suspect most people would do the same. How the punishment fits the crime is beyond me.

And TechieLaw, I hate to say it, but your post makes a very good case against the death penalty for child rapists - because it appears that you voted to convict a man of an incredibly serious crime based only on the word of a child. If that was the only significant evidence against the defendant, then surely that didn't constitute proof beyond a reasonable doubt, because children often make up stories of abuse. I could never be comfortable with children being given the option of sending the person of their choice to execution simply by making up a story of abuse.
1.6.2008 12:29am
bradley:
It is far too expensive to go through a capital phase trial to make it worth it. That money would be more effective used for prevention than for detterance.

The reason for this excessive cost is the Court's totally misguided 8th amendment jurisprudence, but when making a policy decision we have to take the world as we find it.
1.6.2008 12:56am
Harry Eagar (mail):
'The death penalty may deter the rape in the first place.'

It would sure as hell deter the second one.

But what I'm not getting is how a {method of punishment} can be cruel and unusual based on the crime for which it is imposed.

What's the connection?
1.6.2008 1:12am
Waldensian (mail):

Thus, evolving standards of decency globally are against it.

(emphasis added)

Wow, that is the best invitation to VC thread hijack I have ever seen! :)
1.6.2008 1:17am
Anonobvious:
Harry, I'm sure you'll find out when just before you're beheaded the next time you're caught speeding.
1.6.2008 1:23am
Dave N (mail):
it appears that you voted to convict a man of an incredibly serious crime based only on the word of a child. If that was the only significant evidence against the defendant, then surely that didn't constitute proof beyond a reasonable doubt, because children often make up stories of abuse.
No, no, and again, NO! Credibility of a witness is a jury question--and if a jury finds an eyewitness to a crime credible (including sexual assault regardless of the age of the victim) then there is proof beyond a reasonable doubt.

It is the defense's job to put on evidence to cast such a reasonable doubt--but the jury in the case described could consider everything, including the child's demeanor, in choosing to believe her.
1.6.2008 1:24am
don't hate the game:
"I sent somebody to prison for at least twenty years based almost solely on the word of a sobbing nine year old. . . . But coming out of that jury room and saying "guilty" to that man's face, I *did* in fact have some lingering doubt (although not beyond a reasonable doubt)."

Sounds like a (very) reasonable doubt to me. I sounds like you're saying you'll convict in every case the prosecution decides to charge this crime.
1.6.2008 5:06am
Hillary Clinton Cannot Be Stopped!!! (mail):
Depends what you mean by rape of a child. I don't want statutory rape cases in backwater states turned into capital cases. A 19 year old and his 15 year old girlfriend is one thing. A 60 year old predator snatching up grade schoolers from the playground is something else.
1.6.2008 6:33am
Bottomfish (mail):
There is an issue here that has not been discussed so far, and that is severity. Everyone agrees that if one crime is more severe than another, that crime should be punished more severely, although in a specific case there may be mitigating circumstances that may lead the more severe crime to be punished with the same severity or lesser severity than in another case involving a less severe crime. The issue of severity applies whether or not you believe in the death penalty. In terms of this discussion it would have to be viewed as a matter of policy.

The problem is that severity is a vague concept, but it has a profound effect on everyone's thinking even if it is not so often admitted. People feel that rape, especially of a child, is extremely severe and assault is less so. The basis for severity seems to be the harmful effect on the victim. Personally, I do not think that sexual offenses are as severe as most people seem to think and this is what determined my vote.
1.6.2008 10:06am
Jake437 (mail):
"No, no, and again, NO! Credibility of a witness is a jury question--and if a jury finds an eyewitness to a crime credible (including sexual assault regardless of the age of the victim) then there is proof beyond a reasonable doubt.

It is the defense's job to put on evidence to cast such a reasonable doubt--but the jury in the case described could consider everything, including the child's demeanor, in choosing to believe her."

So if a child has a convincing "demeanor," it's acceptable to send someone to death row just because that child said something happened, with no other evidence to support it? There have been many, many instances of very convincing children making false accusations of abuse. Hell, the people convicted of practicing witchcraft at the Salem Witch Trials had significantly more evidence than that against them, because in that case multiple children made allegations, rather than just one.

If our justice system has determined that a "he said, she said" scenario is proof beyond a reasonable doubt, then our justice system needs some work.
1.6.2008 12:06pm
TechieLaw (mail) (www):
Jake437:

You weren't in the room, you didn't see what the child said, and you didn't see how she said it. The child sat through almost a day of direct examination and then cross examination. And having taken a trial advocacy course only two weeks beforehand, which included a full day of practicing on child witnesses, I fully realized how difficult a job the defense attorney had in doing his cross-examination. In fact, I was searching for ways to give him the benefit of the doubt simply because I understood how tough it was for him to impeach the witness without looking like an asshole. (Whether this is an argument for or against allowing law students on juries is a totally different question.)

Yes, I convicted somebody *almost* solely based on the word of a child. There were other witnesses who testified about her behavior during the time period in question, about what was possible to infer from a medical exam years later, and about age appropriate behavior, but *only* she actually testified about what had happened to her. In such graphic detail that either (1) she had been fed the information by somebody else or (2) she had been raped. Although the defense attorney used words like "implanted memories," tried to show that she was an inaccurate witness, or possibly even that she was a liar, he failed. The only discrepancies that he could show were the types of things that I would have expected from a young child.

Are you implying that somebody should not be convicted almost solely based on the word of a child? If not, think of the policy implications: since most child rapists don't usually perform their acts in the presence of other people, and the victims may not come forward for years, you would feel comfortable letting many of them get away with their acts. Is that correct?

And you seem to have glossed over my main point: I'm was willing to send somebody to jail based on that evidence. I think the death penalty would have made me more likely to view the evidence differently.

And, on a completely different note, the very act of testifying was clearly traumatizing to the child. I hope that she never has to testify -- or even think about -- those facts again. As another poster stated above, would a death penalty decision have made it more likely that she would have to relive those moments again and again? Or does the better finality of throwing him in prison better allow her to move on with her life?
1.6.2008 12:39pm
TechieLaw (mail) (www):
Dave N:


It is the defense's job to put on evidence to cast such a reasonable doubt--but the jury in the case described could consider everything, including the child's demeanor, in choosing to believe her.


This was actually one of the points at issue during jury deliberation. It was agreed among everybody that the defense doesn't have to prove anything -- it is the prosecution's responsibility to prove every element of the crime beyond a reasonable doubt -- but the actual application of this was debated.

My personal feeling was that the prosecution had had the responsibility to prove that the acts occurred to a level of plausibility that rose in my mind to beyond a reasonable doubt. Once they succeeded in doing so, it was the defense's job to actually raise doubt from highly unlikely shadows of a doubt into reasonable doubt. When the defense failed to do so, I was willing to convict.

The last holdout juror felt that "reasonable doubt" meant that the prosecutor had to rebut every conceivable possibility -- including the "shadows" like implanted memories -- and that the defense didn't need to raise a finger beyond saying the magic words "implanted memories" with no evidence that anybody had behaved improperly while interviewing the child after her accusation.

(Or, to put it another way: The judge told us that it wasn't the question itself that was relevant, but the question together with the answer. The defense attorney asked the testifying psychiatrist whether she knew about implanted memories. She responded that her review of the case notes showed no evidence that anybody had suggested anything to the child.)
1.6.2008 12:51pm
Jmaie (mail):
"It is far too expensive to go through a capital phase trial to make it worth it. That money would be more effective used for prevention than for deterrence."

Not sure what you are referring to, could you please elaborate?
1.6.2008 1:43pm
SG:
People are claiming that allowing the death penalty for child rapists would only encourage the rapist to murder the child afterwards. Is there any evidence to prove this beyond "common sense"? Furthermore, not every case of child rape would lead to a capital punishment (just as not every case of murder leads to the death penalty) so why are people arguing this as an inevitability? Lastly, from a purely amoral utilitarian viewpoint, even assuming that the rapist will murder the child, the child's life is already ruined as a result of the rape, wouldn't it serve society's interests to defend other children from future rape from this rapist when he is released from prison? I would be curious to see statistics on how many child rapists are repeat offenders.
1.6.2008 4:32pm
Brian K (mail):
Lastly, from a purely amoral utilitarian viewpoint, even assuming that the rapist will murder the child, the child's life is already ruined as a result of the rape

with this logic, we might as well just shoot the raped children and spare them a horrible future.

in all seriousness, being raped/abused as a child is not a death sentence. it is horrible and takes a while to get past...but with proper therapy many (most?) are able to lead normal lives. they grow up, get married and have kids of their own. being abused as a child is a risk factor for many psychological issues. it is only a risk factor, it is not a guarantee. and most of these psychological problems are manageable with medication and/or therapy.

if the death penalty for child rape does indeed cause more rapists to murder the victim, then it is bad policy regardless of its constitutionality. a rape victim will eventually learn to cope, but a dead rape victim never will.
1.6.2008 5:15pm
Jake437 (mail):
TechieLaw said: "Are you implying that somebody should not be convicted almost solely based on the word of a child? If not, think of the policy implications: since most child rapists don't usually perform their acts in the presence of other people, and the victims may not come forward for years, you would feel comfortable letting many of them get away with their acts. Is that correct?"

I believe that it's better for a hundred guilty men to go free than for one innocent man to face the death penalty. That's one of the principles American society was built on. And I really don't believe that requiring some sort of evidence beyond a child's word (or an adult's word) to convict someone of rape means that anyone who commits rape without an eyewitness present would escape punishment. If a small child is raped, a medical exam taken shortly afterward would almost certainly indicate that they were raped. They might be able to describe their assailant's genitals, or give some other sort of identifying detail about them, just like one of the boys that was allegedly abused by Michael Jackson was able to describe his genitals.

It sounds like there was some evidence beyond the child's word in your case, although I'm not sure a medical exam taken well after the fact that suggests the child was penetrated at some point would be enough additional evidence for me to convict, but then, I wasn't on the jury.

It's been well established that children make up stories of abuse for a variety of reasons, and it's not as if any psychiatrist who examines them could be certain whether or not they were telling the truth. It sounds like in your case it was difficult to believe that the defendant was innocent, but if you were sure beyond a reasonable doubt, why would the possibility of the death penalty as punishment make you reconsider the verdict?
1.6.2008 5:29pm
pete (mail) (www):

I believe that it's better for a hundred guilty men to go free than for one innocent man to face the death penalty.


Why just a hundred? Why not a hundred and fifteen or four thousand three hundred seventy two? Exactly how many child rapes would you let occur before you are willing to risk an innocent person going to jail or getting executed?


If a small child is raped, a medical exam taken shortly afterward would almost certainly indicate that they were raped.


Except that in many, if not most cases, the child is terrified to come forward right away because the abuser is a relative or mom's boyfriend. And adults often do not believe or want to believe kids right away or do not want to face the consequences of reporting the abuse. Even in some cases where there is undeniable physical evidence such as a young child contracting a STD the parties involved do not want to believe or fix the problem because the legal consequences can send the breadwinner to jail or cause him to leave, send a sibling to jail, cause great embaressment etc.

If the death penalty is allowed for child rape in the vast majority of the cases it will not lead to the murder of the child for the simple reason that most abusers are relatives or mom's boyfriend. They think they can get away with it without any punishment and that no one beside the victim will ever find out. If you murder the child then people will know for sure that something happened and the police will definitely get involved. Stranger rapes of children are not the norm in child abuse cases.

I base these statements off of conversations I had with my wife and her coworkers (including lawyers, social workers, doctors etc.) who worked at a non-profit agency that dealt with children who made sexual abuse allegations. Child abuse allegations are on the whole handled a lot better than they were 20 years ago with much less leading questions from investigators.
1.6.2008 6:09pm
Andrew J. Lazarus (mail):
I didn't see a space for my answer. I'm opposed to the death penalty, period, but if we have a death penalty, I think the defendant in this case is an excellent example. IIRC, There wasn't any question of actual innocence, the victim was eight years old (not a precocious 12-y.o. with adult body), the rape was brutal and resulted in serious physical injury (not talking about dirty old man with candy manufacturing "consent") and incestuous to boot.
1.6.2008 6:46pm
TechieLaw (mail) (www):
Jake437:

Because humans are not flawless, I agree that our system of justice requires us to err on the side of presuming innocence and potentially letting the guilty go free. This is why I was willing to convict based on less than perfect evidence (and "beyond a reasonable doubt" permits less than perfect evidence simply because the standard is *not* "beyond *any* doubt"), and why I am far more hesitant to send a man to his death based on that standard.

I am far more willing to be personally responsible for mistakenly sending somebody to jail than sending somebody to his death. Also, as a juror, I had no control over how the rules of evidence and the constitutional rights of the accused were handled by the judge. As far too many recent cases have shown (e.g. Martin Tankleff on Long Island), new evidence may come out decades later. You can't give a life back to somebody executed for the wrong reasons, but you can make some type of amends to a person falsely imprisoned.

For what it's worth, I'm not completely opposed to the death penalty in all cases -- I want it on the books as a theoretical option, but I only want to see it applied in the rarest of cases. The case I sat on wasn't one of them.

With that being said, you still haven't answered the question: Given the (unfortunately) extremely common situation where a child rape victim may not come forward for years, where that child victim may be the only witness to the crime, and where there's frequently never any physical evidence (there wasn't any in my case, and an expert convincingly explained why), what would *you* need to vote "guilty"?

It isn't a theoretical question. I haven't looked at statistics, but based on the expert witnesses who testified, it seems that this situation is all-too-common. A terrified little girl discussing the obscene things done to her body is about the best you'll get in most situations.
1.6.2008 10:33pm
Informant (mail):
"People are claiming that allowing the death penalty for child rapists would only encourage the rapist to murder the child afterwards. . . . [E]ven assuming that the rapist will murder the child, the child's life is already ruined as a result of the rape, wouldn't it serve society's interests to defend other children from future rape from this rapist when he is released from prison?"

Then society's interests could be served just as well by making the punishment life in prison without possibility of parole. The anti-recidivism argument is just about the weakest conceivable argument one can make in favor of the death penalty.
1.6.2008 10:45pm
Public_Defender (mail):

Public Defender - I'm curious, is there no DNA or other physical evidence in these cases?


DNA is the exception, not the rule. First, many child rape cases are brought years after the rapes allegedly occurred. It is common for indictments to say, "Between January 1, 2003 and December 31, 2003," defendant . . . ."

Second, even if the alleged victim were examined immediately after the alleged event, many kinds of rape don't leave DNA evidence. Often in these cases, the State will put on an expert just to say that no physical evidence doesn't mean no rape.


Wouldn't murky cases be the least likely for someone to go for the death penalty, though? It's a very high standard of doubt, and it's not like you're going to get a second chance if the jury doesn't believe your side of the 'he-said she-said'.


The standard of proof is high. And I did say that juries probably get it right the "vast majority" of the times. But many of the cases in which DNA evidence exonerates someone years after a conviction were he-said-she-said's where the jury got it wrong.

People think they can tell a lie better than they really can. Plus, jurors are loath to let someone free when they think he probably did it, even when they have serious, nagging doubts.

One thing I never want to be is a juror in a child sex case (not that a prosecutor would let me on a jury). I know my job as a criminal defense lawyer--give the defendant the benefit of the doubt.

I would hate to be the one making the final decision. If you wrongly convict, you condemn an innocent man to leading what's left of his life treated as one of society's lowest forms of scum. If you wrongly acquit, you let a predator loose. Tough job. Really, really tough job.
1.7.2008 4:47pm
Alice Marie Beard (www):
I apologize for not closely having read each of the 55 above posts. However, since the general topic is near and dear to me, I'd like to add some comments under my real name, because some years back I decided never again to "hide" when speaking on this topic:

BruceM and a few others would suggest that allowing the death penalty for child rapists could encourage the killing of the victim. Not likely when you're dealing with children victims because most perps who sexually abuse children abuse LOTS of them, and folks would begin to notice all the dead bodies. Perps who sexually abuse children are skilled at manipulating the children to remain silent, absolutely voiceless, for years and years.

Duffy Pratt stupidly asked if someone would favor executing "the guy who got Britney's sister pregnant."

Why is that a stupid question or comment? Because there are two basic groups of pedophiles: Those who are sexually attracted to pre-puberty children, and those who are sexually attracted to post-puberty "children."

Normal adults are not sexually attracted to pre-puberty children. Such children are genuinely children; the law in question sets the age at 12, which is typical age of puberty.

We may not want to admit it, but perfectly normal adults can be sexually attracted to post-puberty, sexually developed young people -- male or female, any combination you want to come up with. Common law age of consent used to be 14. States have worked at raising that age for various reasons, not all necessarily good for young people.

However, the point is that to lump the newest pregnant Spears sister with victims of sexual abuse is stupid and ignorant.

Adults who sexually abuse pre-puberty children are pedophiles in fact. Adults who have sexual relations with willing post-puberty teenagers, particularly with post-age 14 willing teenagers are pedophiles only because the law says they are pedophiles.

Don't muck up the God-awful crime of the rape of young children with blabbering about post-puberty teenagers who decide to be sexually active.

And back to the true pedophiles, all studies show that those who sexually abuse pre-puberty children, particularly young pre-puberty children are never "curable." Lock 'em away for 30 years, and if they get out at 70, they'll still have the sexual urge to do sexual things to little children. They just can't be "fixed."

Therefore, they are more akin to rabid animals than human beings. And therefore, I favor the death penalty for true pedophiles.
1.8.2008 1:55am
TechieLaw (mail) (www):

I would hate to be the one making the final decision. If you wrongly convict, you condemn an innocent man to leading what's left of his life treated as one of society's lowest forms of scum. If you wrongly acquit, you let a predator loose. Tough job. Really, really tough job.


I would be more than happy to sit on another jury. However, if I'm asked to sit on another one of these types of cases, I may answer in all honesty, "Your honor, I feel that I have already completed my civic duty." I've told friends that a murder trial would have been an easier ordeal.
1.8.2008 11:59pm