The Supreme Court Considers Whether Imposing the Death Penalty for Child Rape Is Constitutional:
The Arguments For and Against the Penalty

By MARCI HAMILTON
Thursday, Apr. 17, 2008

Yesterday, Wednesday, April 16, the Supreme Court heard oral argument in Kennedy v. Louisiana, on the question whether Louisiana may constitutionally impose the death penalty on an offender convicted of committing child rape. The Court had previously ruled in Coker v. Georgia that the rape of an adult (though, in that case, it was the rape of a sixteen-year-old) could not be punished with death. In this case, the question is whether a stepfather can constitutionally be put to death for the brutal rape of his eight-year-old stepdaughter.

The Court's decision, which is likely to appear in June, will set important precedent, because a handful of states take Louisiana's approach, and others are poised to adopt the death penalty for child rape if it is upheld by the Court. In this column, I'll consider the arguments for and against the penalty for child rape.

The Arguments in Favor of, and Against, the Death Penalty for Child Rape

The argument in favor of the death penalty for child rape is simple justice. If capital punishment is appropriate for murder, applying it to child rape is not a large extension. The crime closest to murder is the rape of a child, whose childhood is essentially exterminated and whose future is forever changed. The whole culture suffers grievously, too, from the severe disabilities generated by child sex abuse.

Some argue that there should be simply a bright line at murder for the death penalty, but a crucial aspect of its internal logic - deterrence - is obviously very important in the context of child rape.

The argument against this punishment, though, is that the severity of the penalty is likely to lead legislators and others to think that they have accomplished more than they actually have by imposing it. The truth is that life in prison without parole is just as successful in serving society's need to keep child rapists away from children as the death penalty would be. There is no quantum increase in child safety that depends upon whether the perpetrator is alive and locked away, or dead and gone.

One can understand, though, the motivation behind imposing capital punishment for child rape. As it has become increasingly clear to policymakers that child predators are permanent recidivists, frustration has grown. Desperate to protect our children, we have thrown everything we can concoct at the predators to keep our children safe -- sex offender registries, to track the ones who are now out of prison; GPS monitoring units on offenders during parole, to improve the quality of the tracking; and increasingly stiff sentences to achieve the greatest effect in deterrence and incapacitation that, as a society, we possibly can. (There is also the idea of pedophile-free zones, but as I discussed in a previous column, this much-touted solution is doomed to be ineffective and makes little sense.)

Of course, what we really want, as a society, is to rid the world of child sexual predators. The crime is so heinous and devastating that such offenders simply should not exist. Children should have childhoods filled with happiness and light - not terror and abuse that scars for a lifetime. But such predators do exist, our children remain at risk, and, worse, current data indicates that sex abuse is scarily prevalent, with at least 20% of boys sexually abused, and at least 25% of girls.

While the registries, GPS tracking, and longer sentences are all good ideas that make meaningful contributions to child safety, they do not get to the heart of the most serious problem we have: We don't know who most of the predators are.

There are two primary reasons we do not. First, we have engineered the statutes of limitations so that the vast majority of claims never get to court. The result of this appalling error is that we have an army of predators, currently grooming children to be victims, who operate under the anonymity of expired statutes of limitations.

Until we create opportunities for survivors to get into court, the current bells and whistles of predator treatment will remain irrelevant for a major class of predators. After all, you cannot put someone whose identity you do not know on a registry, attach a GPS monitor to his ankle, or increase his sentence. Thus, removing the statutes of limitations for child sex abuse is fundamentally necessary if we want to increase our knowledge of who the predators among us truly are -- as I argue in more detail in my book forthcoming from Cambridge University Press this month, Justice Denied: What America Must Do to Protect Its Children.

Second, too often, known predators are permitted to plead to less serious charges, and thereby permitted to evade the registries that would otherwise list them, and the GPS monitoring and stiff sentences they would otherwise occur. More resources should be directed to prosecuting on the heaviest charges the evidence warrants.

There is an inherent difficulty with these cases, which involve child witnesses, and traumatized children at that. Prosecutors may hesitate to put children on the stand to be subjected to such a public process, not to mention cross-examination. But there is also a solvable difficulty here: Due to lack of resources and personnel, prosecutors cannot possibly keep up with the volume of sex abuse cases that exist. Here, more funding and more attorneys and staff dedicated to these crimes surely would help.

A recent case in Brooklyn of a rabbi who was credibly accused of sexually abusing two boys, but who was permitted to plead merely to "child endangerment," illustrates the problem: Because child endangerment is not a "sex crime," the perpetrator could not be added to a sex offender registry. In addition, the weaker charges led to probation rather than jail time.

When prosecutions in child abuse cases are watered down in this way, as they are far too often, the standard vicious cycle of child abuse continue: The predator avoids serious punishment, returns to ordinary life, and starts grooming the next victim, who is more than likely within the predator's own family or circle of friends.

One Argument Against the Death Penalty for Child Rape that Is Quite Unpersuasive: Fear of Deterring Reporting of the Crime

Opponents of the death penalty for child rape have argued that it is a bad idea, because it will deter reporting of the crime, given the severity of the punishment. That seems far-fetched, however. To the contrary, you might get more reporting if the victim thinks that the predator, if convicted, truly will no longer be able to inflict abuse on them. The same result would follow, however, if the justice system reliably put away known child abusers instead of cycling them back into society. Thus, the death penalty and life sentences have the capacity to motivate victims to report in order to remove the predator from their lives. (To be sure, survivors of child sex abuse face many hurdles to reporting, which may not be affected in any way whatsoever by the potential penalty.)

In sum, whether or not the Court upholds the death penalty for child abusers this Term, the entrenched barriers to identifying predators will not be eliminated, or even reduced. For that reason, from the perspective of the child being abused today or the survivor trying to cope in the wake of abuse decades ago, the case is a lot of hype - a paper battle that distracts from the far more essential battle for the reforms that are truly necessary if justice and decency are to be served.


Marci Hamilton is Crane Senior Research Fellow at the Program in Law and Public Affairs at Princeton University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Professor Hamilton's forthcoming book, which will be published this month, is entitled Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008).