Inspired by this Pit thread in which the OP is outraged by the presence of a convicted and paroled rapist of a child in his workplace.
In the above-linked thread, several people express dismay that we as a nation have a double-standard when it comes to sex crimes (specifically rape and child molestation). We’ll eventually release offenders (and not after sentences so long that the ex-cons are so enfeebled that no one’s worried about them), but place every obstacle in their path to reintegrate into society. Others agree, and opine that such people should be quickly executed.
Well, why don’t we? According to Wikipedia only Louisiana specifically executes child rapists, and Florida executes for “capital sexual battery”. Four other states execute for aggrevated kidnapping, and I can only assume the rape is an aggrevating factor. No one has been executed for anything other than murder since 1964, although Lousiana has one child molestor on death row. Why such a low rate?
It seems clear to me that most people believe that rape, especially when a child is involved, to be the foulest of crimes, and often as bad or worse than murder. Hell, even a bleeping heart liberal like me has no trouble treating rapists and murderers the same. In addition, to be cynical for a moment, it seems to me that there’s political points to be made in volunteering (as some did in the Pit) to kill rapists. But there hasn’t been a successful movement to execute such criminals. This seems odd to me, although I admit that my judgement may be clouded by my belief that the death penalty is never justified (a position I’m not trying to debate right now, if you don’t mind).
Why don’t we execute rapists more often? Is it that the current level of horror at such crimes is so new that the law hasn’t caught up yet? Is it that the (factually dubious) meme that sex offenders have a tremoundously high rate of recidivism is too recent or too weak to have an effect on the legislatures? Or do the death penalty proponents have a more consistent stance that only murder deserves the death penalty than I give them credit for.
A quick Lexus-Nexus search shows 74 studies since '04 for high recidivism; and 6 that say ‘low’ (that is a source listing not an article listing, there are THOUSANDS of each in articles, but not in studies/sources). 74-6 in the last 2 years seems a pretty far cry for ‘dubious’.
That said, it is hard to get capital punishment for any crime, and anything short of death; is near impossible. There are PLENTY of people on death row who killed their rape victoms (including children). There are very few on death row for murder (percentage wise). I’m not sure the situation is decoupled.
One reason might be that increasing the penalty for rape to execution makes rape-murders more likely. If a rapist thinks that leaving a living witness (the victim) makes him more likely to face the needle, chair, or gas chamber, he may well decide to kill his victim once he’s done with him/her.
The Supreme Court ruled in Coker v Georgia in 1977 that the death penalty for rapists is unconstitutional, because the punishment is excessive relative to the crime.
I love when the Supreme court finds something unusal as ‘unjust’ simply because it is ‘unusual’ (wrt b), there are not many captial laws for rape, because it was found unconsitutional because there weren’t many capital laws for rape, perfect (circular) logic.
Huh. Didn’t realize that there was such a cut-and-dried answer. Thanks.
Nevertheless, I remain curious as to why there wasn’t a stronger tradition of execution for rape in 1977, and why there haven’t been challenges to the ruling since then.
I heard one counter-argument from a conservative source regarding forcible rape (not of a child) and the death penalty.
Let’s say that “all” a (male) perp has done so far is rape an adult, probably a woman victim. He may now be inclined to take her life; for one thing, she is probably the only witness against him. He cannot be deterred from murdering her as well if he is already eligible for death.
Yes, I know, that gets into the whole question of deterrence, which would get into the likelihood of being apprehended, tried, found guilty, and so on, on the one hand.
It gets into the perp’s likely frame of mind as well. (Many cases are “crimes of passion” rather than well-planned crimes, for one thing.)
And you said that you didn’t want to get into the whole death penalty debate.
And that ruling, IMNSHO, was totally and completely wrong.
A murderer kills his victim. A rapist, however, leaves a living victim who suffers from the crime for a long, long time afterward. I really couldn’t tell you which is worse. I advocate the needle for both.
Not necessarily. If there were a movement across the states to execute rapists, and state after state passed new laws in favor of it, the Supreme Court would be forced to conclude that it’s no longer “unusual.” So I don’t think it’s neccesarily a circular argument.
You mean after they have already deemed it unconstitutional? I’m not sure how many states would be willing (or able) to pass legislation that has already be overturned by the SC (But maybe i’m wrong, it happens from time to time)
Yes, but it’s hard to quantify suffering in a criminal context. Does a rape victim suffer more than a shooting victim who has been paralyzed, or a swindled retiree who lost all their money? When you decide on whether or not capital punishment is appropriate for th ose crimes, where do you draw the line? Every crime victim suffers, to some extent, so it’s hardly fair to use that suffering to support a certain punishment for some crimes but not others.
as between deterring crime per se and providing a graduated scale of punishment to deter the escalation of a crime in progress, once we have established a top most penalty for the top most crime, it is sensible to have lower pegs along the way.
I don’t believe in the death penalty, but the same reasoning would apply if the punishment for murder were life w/out parole–we would still want the punishment for child rape to be less, because we want the criminal to have an incentive to stay his hand. Particularly where the tesitmonly of the victim is likely to be his greatest risk of conviction.
may I conclude from your post that as a parent, you would prefer that your 12 year old daughter be killed after being raped, because living with the memories of the rape will make her life a living hell?
I’ve expressed my opinion in the other thread; that is, that the punishment is disproportional to the crime. In general, US and European laws, although there have been exceptions, seem to tend toward the idea that crimes which do not result in death of the victim are not considered death-penalty offenses.
If I am to buy this argument, it seems to me I must advocate “the needle” for any US government official who has tortured, or caused to be tortured, any of the foreign nationals incarcerated for years in Afghanistan or Guantanamo. After all, certainly at least some of the persons subjected to mistreatment in those places were innocent, and there is little question that they will suffer from the crime of their imprisonment for a long time afterward.
I know it makes you feel good to say this, but from a conduct guidance perspective, in terms of the social aims of criminal law, you run afoul of all sorts of good policy aims.
Just an observation: It never ceases to amaze me how emotional people get when the words “sex” and “crime” are linked. There is just this visceral reaction that shuts down the brain and brings the cave people to the fore. Part of it is the uniqueness of the sex act itself, and part of it is the puritanical “sex as sin” streak that runs deeply through the American psyche. And discussions like this ALWAYS devolve quickly to “child rape,” as if there was an epidemic of it snuffing out the childhoods of defenseless babies across the nation.
Seriously, people, if I had a 12-year-old daughter (I don’t) and a bad man attacked her, it frankly does not matter one whit whether he forced his penis into her vagina or beat her in the head with a club. Either way, he has spilled a child’s blood. The crimes are equally serious.
Yes, I do believe that there should be special treatment (with emphasis on “treat”) for people who harm children. Any children. Any harm. Crimes against children should be a separate catagory, just like crimes committed by children.
(I do part company somewhat with my liberal fellow travelers when it comes to crimes of violence committed by very young people. Children need to be taught that hurt feelings are inevitable in a society driven by material gain and creature comfort, but “evening the score” with violence isn’t acceptable, and it needs to have harsh consequences.)
But the crime of rape shouldn’t be given greater status than any other assault that leaves the victim alive, regardless of the condition. It doesn’t matter whether the victim is penetrated with a body organ or with a knife blade, both are humiliating, crushing violations of the human body and both should be dealt with harshly.