# SCOTUS: Death penalty for child rape unconstitutional **URL:** \ **Category:** Great Debates\ **Created:** [June 25, 2008, 5:29pm UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204 "2008-06-25T17:29:11Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [June 25, 2008, 8:30pm UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/21 "2008-06-25T20:30:09Z")
[QUOTE=Gadarene] …Apparently one policy-based rationale behind the decision (I haven’t yet read the opinion itself yet, so if any of you have you can correct me) is that if child rape is punished as severely as child rape + murder, then there is no disincentive in that regard for a child rapist not to murder his victim as well. Which makes a decent amount of sense to me, at least if you’re one of those people who believes that the death penalty has a deterrent effect. [/QUOTE] I’m dubious about how many child abductors really do that kind of calculus – it seems to me that most of them already kill their victims anyway – but even so, the vast majority of sexual assaults on children are not committed by strangers but by people close to them (family members ranking at the top of the list), who would not be likely to kill the victims, so I have doubts about how much deterrent value would really have on child murder. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [June 25, 2008, 8:38pm UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/22 "2008-06-25T20:38:17Z")
While I’m not a fan of capital punishment I think SCOTUS erred. Executing a child rapist is unusual, but it’s not cruel. There are alot of reasons why executing child molestors is a bad idea, but cruelty isn’t on of them. So now the only crimes _against individuals_ than can be punished with death are those result in the victim’s death, but crimes against the _state_ (treason, espionage, etc) can still carry the death penalty without need of a dead victim? This doesn’t apply to the military, does it? There’s _alot_ of crimes punishable by dead in the UCMJ. Aren’t a couple soldiers facing a death sentence for raping an Iraqi girl? ---
**Author:** ![MrDibble](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mrdibble/32/114_2.png) [@MrDibble](https://boards.straightdope.com/u/MrDibble)\ **Post date:** [June 25, 2008, 9:09pm UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/23 "2008-06-25T21:09:08Z")
Speaking as someone who was raped as a child, I say yeah, SCOTUS. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 25, 2008, 10:07pm UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/24 "2008-06-25T22:07:08Z")
I think anyone who is opining about the result without having read both the opinion of the Court and the dissent is simply passing gas through the upper opening. 😉 Read the opinions, then offer commentary. ---
**Author:** ![buttonjockey308](https://avatars.discourse-cdn.com/v4/letter/b/bcef8e/32.png) [@buttonjockey308](https://boards.straightdope.com/u/buttonjockey308)\ **Post date:** [June 25, 2008, 10:23pm UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/25 "2008-06-25T22:23:48Z")
[QUOTE=Weirddave] It’s a fucking travesty. First the bogus Guantanamo Detainee ruling (to clarify, I think that the precedent set was absolutely horrible, even if I do think that the detainees in Cuba should be charged, tried and disposed of, one way or another. It’s much like _Roe V Wade_-I support the right of a woman to have an abortion, but recognize that _Roe_ is terrible law and a horrible example of judges making up new “rights” out of whole cloth), now this. This country better elect McCain in the fall, this shit’s gotta stop. [/QUOTE] What’s McCain have to do with it. Obama’s out against the [ruling.](http://www.breitbart.com/article.php?id=D91HBT900&show_article=1). ---
**Author:** ![cckerberos](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@cckerberos](https://boards.straightdope.com/u/cckerberos)\ **Post date:** [June 25, 2008, 11:09pm UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/26 "2008-06-25T23:09:23Z")
There’s an interesting analysis of the decision [here](http://www.slate.com/id/2193813/entry/2194268/) in which Dahlia Lithwick argues that although she agrees with the result, she doesn’t like the process he used to get there: > [@](#): > > I happen to agree with the majority that “in most cases justice is not better served by terminating the life of the perpetrator rather than confining him” and that Louisiana did not demonstrate a growing national consensus that nonlethal child rape should be punished by death. But when Kennedy arrives at the correct decision by way of a pit stop at Substitute Moral Judgments for the Weak and Infirm, I can’t quite bring myself to celebrate. ---
**Author:** ![Drain\_Bead](https://avatars.discourse-cdn.com/v4/letter/d/e47774/32.png) [@Drain\_Bead](https://boards.straightdope.com/u/Drain_Bead)\ **Post date:** [June 26, 2008, 12:30am UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/27 "2008-06-26T00:30:01Z")
[QUOTE=Diogenes the Cynic] I’m dubious about how many child abductors really do that kind of calculus – it seems to me that most of them already kill their victims anyway – but even so, the vast majority of sexual assaults on children are not committed by strangers but by people close to them (family members ranking at the top of the list), who would not be likely to kill the victims, so I have doubts about how much deterrent value would really have on child murder. [/QUOTE] What I wonder about is the deterrent value that the death penalty would have on the victims (and the adults responsible for them) to report the crime in cases of incest. The stakes get a lot higher when you know Uncle Bob’s going to fry for what he did instead of just go to prison. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2008, 12:41am UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/28 "2008-06-26T00:41:44Z")
From Alito’s dissent: [QUOTE=Justice Alito] In summary, the Court holds that the Eighth Amendment categorically rules out the death penalty in even the most extreme cases of child rape even though: (1) This holding is not supported by the original meaning of the Eighth Amendment; (2) neither Coker nor any other prior precedent commands this result; (3) there are no reliable “objective indicia” of a “national consensus” in support of the Court’s position; (4) sustaining the constitutionality of the state law before us would not “extend” or “expand” the death penalty; (5) this Court has previously rejected the proposition that the Eighth Amendment is a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems; (6) the worst child rapists exhibit the epitome of moral depravity; and (7) child rape inflicts grievous injury on victims and on society in general. [/QUOTE] Who can argue with that? How is he wrong? ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [June 26, 2008, 12:51am UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/29 "2008-06-26T00:51:13Z")
[QUOTE=jtgain] From Alito’s dissent: > [@](#): > > (4) sustaining the constitutionality of > the state law before us would not “extend” or “expand” the > death penalty; Who can argue with that? How is he wrong? [/QUOTE] Would not adding a new capital crime “extend” or “expand” the death penalty? ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 26, 2008, 1:08am UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/30 "2008-06-26T01:08:04Z")
I’m against the death penalty without any exceptions. Citing trends is a bizarre line of reasoning, and I’m not sure about pointing to the strain of making a child testify makes sense either. I’m not sure this court was going to do any better, and I agree that the punishment is just not proportional to the crime here. But I understand the reservations people have here. That aside - the court ruled decades ago that death was not a Constitutional punishment for rape. By what logical standard are are people asserting that raping a child is worse than raping an adult? That just doesn’t make any sense to me. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2008, 1:17am UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/31 "2008-06-26T01:17:04Z")
[QUOTE=Marley23] That aside - the court ruled decades ago that death was not a Constitutional punishment for rape. By what logical standard are are people asserting that raping a child is worse than raping an adult? That just doesn’t make any sense to me. [/QUOTE] The court ruled in Coker that raping an ADULT woman was not sufficient grounds for the DP. The thinking is that an adult, while feeling horrific pain at being raped, would have the mental capacity to understand the wrong being perpetrated on her, while a child would grow up with conflicted and irrational beliefs regarding sexuality. And to Frank, I think Alito is saying that this is not expanding the DP as historically rapists have been subject to capital punishment. It is only overreaching decisions by the Court that try to limit it.. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 26, 2008, 1:32am UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/32 "2008-06-26T01:32:47Z")
[QUOTE=jtgain] The thinking is that an adult, while feeling horrific pain at being raped, would have the mental capacity to understand the wrong being perpetrated on her, while a child would grow up with conflicted and irrational beliefs regarding sexuality. [/QUOTE] I figured that was the reasoning, more or less. I’m not sure I find it compelling here, but it’s an academic question for me anyway. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [June 26, 2008, 2:10am UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/33 "2008-06-26T02:10:15Z")
[QUOTE=Drain Bead] What I wonder about is the deterrent value that the death penalty would have on the victims (and the adults responsible for them) to report the crime in cases of incest. The stakes get a lot higher when you know Uncle Bob’s going to fry for what he did instead of just go to prison. [/QUOTE] That’s a very good argument for the _legislature_ to repeal a law, but not for a court to strike it down. It’s not a judge’s place to stike a law down just because it’s bad policy. ---
**Author:** ![Two\_and\_a\_Half\_Inches\_of\_Fun](https://avatars.discourse-cdn.com/v4/letter/t/ea666f/32.png) [@Two\_and\_a\_Half\_Inches\_of\_Fun](https://boards.straightdope.com/u/Two_and_a_Half_Inches_of_Fun)\ **Post date:** [June 26, 2008, 2:39am UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/34 "2008-06-26T02:39:07Z")
According to the TV show _Rome_, the Romans used to train baboons to rape Roman women as form of punishment. That seems that a good punishment for a child rapist. Is it cruel and unusual? ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 26, 2008, 2:40am UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/35 "2008-06-26T02:40:10Z")
…well, it’s I’m sure as shit it’s unusual… ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [June 26, 2008, 6:50pm UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/36 "2008-06-26T18:50:17Z")
I’m against the death penalty for _any_ crime, so I’m pleased with the ruling. I’m also generally in favor of the idea that “cruel and unusual” is a phrase whose meaning inherently depends on societal standards of “cruelty”, and so should be treated as evolving over time. I’m curious: Does the fact that many child rapists were molested/raped as children themselves(\*) factor into people’s feelings on this issue? I’m not saying that in any way excuses their actions, but if their behavior ultimately stems from severe untreated abuse when they were in their formative years, it might justify treating them more compassionately, no? (\*) Someone’s going to ask for a cite on that, and I don’t have one, it’s just my impression from conversations with my wife, who studied Social Work under a leading authority on child molestation. But I suppose it’s possible I’m misinterpreting things she’s said. ---
**Author:** ![Baldwin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/baldwin/32/7264_2.png) [@Baldwin](https://boards.straightdope.com/u/Baldwin)\ **Post date:** [June 26, 2008, 6:52pm UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/37 "2008-06-26T18:52:12Z")
[QUOTE=Drain Bead] What I wonder about is the deterrent value that the death penalty would have on the victims (and the adults responsible for them) to report the crime in cases of incest. The stakes get a lot higher when you know Uncle Bob’s going to fry for what he did instead of just go to prison. [/QUOTE] Having the death penalty might also result in more killings in the (fortunately pretty rare) case of a stranger abducting and raping a child. I haven’t read the opinion or dissents. I’ve always been against the DP for any crime, but think it’s debatable on constitutional grounds. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 26, 2008, 6:56pm UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/38 "2008-06-26T18:56:08Z")
[QUOTE=jtgain] Who can argue with that? How is he wrong? [/QUOTE] [QUOTE=Alito] (1) This holding is not supported by the original meaning of the Eighth Amendment [/QUOTE] I think Alito misinterprets the Eighth. I think it was intended from its inception to be an evolving, fluid concept. Now, I think Kennedy is probably wrong in his application of that view to this case, but I think it could easily be argued that the original meaning of the Eighth was to include decisions such as this. ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [June 26, 2008, 6:58pm UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/39 "2008-06-26T18:58:00Z")
[QUOTE=tim314] I’m curious: Does the fact that many child rapists were molested/raped as children themselves(\*) factor into people’s feelings on this issue? I’m not saying that in any way excuses their actions, but if their behavior ultimately stems from severe untreated abuse when they were in their formative years, it might justify treating them more compassionately, no? (\*) Someone’s going to ask for a cite on that, and I don’t have one, it’s just my impression from conversations with my wife, who studied Social Work under a leading authority on child molestation. But I suppose it’s possible I’m misinterpreting things she’s said. [/QUOTE] Why not take it further and declare a death penalty on the victims, too, since they will inevitably turn into rapists themselves? ---
**Author:** ![The\_Man\_In\_Black](https://avatars.discourse-cdn.com/v4/letter/t/bcef8e/32.png) [@The\_Man\_In\_Black](https://boards.straightdope.com/u/The_Man_In_Black)\ **Post date:** [June 26, 2008, 7:28pm UTC](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204/40 "2008-06-26T19:28:38Z")
[QUOTE=Ludovic] Why not take it further and declare a death penalty on the victims, too, since they will inevitably turn into rapists themselves? [/QUOTE] Because that just dosn’t make since. Why don’t we just kill ourselvs now because we will die someday. Your argument is very flawed. [Previous page](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204.md?page=1) [Next page](https://boards.straightdope.com/t/scotus-death-penalty-for-child-rape-unconstitutional/454204.md?page=3)