Friday, June 27, 2008

US Supreme Court Rejects Death For Child Rape

From the NY Times:

In a 5-4 vote, the court said the Louisiana law allowing the death penalty to be imposed in such cases violates the Constitution's ban on cruel and unusual punishment.

''The death penalty is not a proportional punishment for the rape of a child,'' Justice Anthony Kennedy wrote in his majority opinion. His four liberal colleagues joined him, while the four more conservative justices dissented.

I'm thrilled to see this ruling since I believe the death penalty for child rape provides an incentive for child rapists to consider murdering their victims when they might not have considered it otherwise.

Besides considering how the death penalty could impact the behavior of rapists, this ruling removes a lever which rapists and those who are trying to protect rapists could use to pressure child rape victims into silence or into recanting.

Unfortunately, Barack Obama doesn't agree.

Democrat Barack Obama said Wednesday he disagrees with the Supreme Court's decision outlawing executions of child rapists.[...]

"While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes - mass murder, the rape and murder of a child - so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment," he wrote in his book "The Audacity of Hope."

If the death penalty doesn't deter crime and it has the potential to cause some child rapists to commit murder there is no practical reason to support the death penalty for child rapists.

It also looks like John McCain doesn't agree, but I haven't seen any specifics of his position.

For those who haven't thought about how the death penalty could adversely impact children who have disclosed rape, the reality of the pressure applied to children is described in the Rochester Post Bulletin:

"It's no fun to make an accusation of sexual abuse," [Victor] Vieth [director of the National Child Protection Training Center at Winona State University] said. They know others will know they made the accusations and they could be teased about it, he said. They also know they might have to be examined in a hospital and testify in court in front of others, including the media. "When exactly does it start being fun for those kids?" he said.

Children also come under heavy pressure to recant, he said. Most find living with a lie if they recant is easier than living with abuse if they do testify. In fact, say those working with children, the opposite is closer to the truth -- children tend to underreport abuse.

Lying is rare, said Nancy Reuvers, supervisor of child/family services for Dodge County. "If anything, they will protect their parents," she said.

The reality is that most child rapists know their victims so children's feeling of responsibility for what happens to their rapist is a significant issue. The pressure to recant would be far greater if not recanting might result in the rapist's death.

Unfortunately, parents and other guardians/relatives can be as brutal as the worst strangers.

Beyond the overall view of the impact of the death penalty on public safety one of the big flaws in having a death penalty for child rape is the inequities in who gets that sentence and who doesn't. If the SCOTUS ruling had gone the other way most child rapists -- even some who left their victims with permanent physical injuries -- wouldn't be sentenced to death.

Two people who commit identical crimes are likely to have very different outcomes based on a mix of random luck over how good the local criminal justice system is and over socioeconomic and racial statuses. Many states including Florida are cutting the number of public defenders while the number of defendants who qualify to have a lawyer provided for them is not dropping.

Lastly, I am bothered by those who claim that this SCOTUS ruling is pro-rapist. Kennedy, who is the convicted child rapist in this ruling, will not be set free tomorrow. Yet from some of the posts I've scanned you would think that's what's going to happen. And it isn't just the bloggers who are putting forth this dangerous fallacy, it is politicians.

"Anybody in the country who cares about children should be outraged that we have a Supreme Court that would issue a decision like this," said Alabama Attorney General Troy King, a Republican. The justices, he said, are "creating a situation where the country is a less safe place to grow up."

This is nonsense and it substitutes spin for logic.

Life in prison with no chance of parole is not more dangerous to children than giving rapists the death penalty. At least unless a politician like Mike Huckabee advocates for a sympathetic rapist who shouldn't be locked up who then goes on to rape and murder. But such problems in the system exist with or without the death penalty.

I don't want politicians to sound hard on crime, I want politicians who are working for effective solutions even if part of that solution sounds soft on criminals.

For me the death penalty should exist for public safety reasons only. That means I support the death penalty for the prison inmate who raped and murdered a prison guard in Daytona Beach, Florida because this person demonstrated an ongoing danger despite incarceration. The inmate who they believe committed this crime was serving two life sentences for sexual battery with a weapon and kidnapping.

Other violent offenders, including serial rapists such as Richard Gillmore, respond to the controlled prison environment by being model prisoners even though psychologists consider them too dangerous to be paroled even with supervision. This man is eligible for parole because when he committed his other rapes the statute of limitation was only 3 years and had expired by the time he was caught.

Rather than all the focus on the death penalty for child rape, I want those politicians to fix the system so that a woman who was raped at 13 doesn't have to file a lawsuit to keep her rapist from being paroled after a hearing she wasn't notified about. I want the statutes of limitations eliminated for rape so that people like Gillmore can be given sentences in line with all of the crimes they committed.

I wonder how many of those who regularly mock the majority of rape victims/survivors and who regularly excuse all but the most monstrous rapists will rant against the majority opinion in this ruling in order to prove that they are genuinely anti-rape. It likely won't take these people long before they go back to attacking all those who they mock as having cried rape.

Shouting, "Child rapists must die!" is easy, supporting more comprehensive solutions and being willing to fund these solutions is harder. Some people are only against child rape when it is easy.

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posted by Marcella Chester @ 12:07 AM   4 comments links to this post


At June 27, 2008 6:28 AM, Anonymous Anonymous said...

As a caucasian male, I say a more fitting punishment for a child rapist would be not just life without parole but also requiring that child rapist to work washing bed linens for a pediatric hospital.

What MIGHT justify the death penalty in the conviction of a child rapist is swlf defense, a serial offender who has raped over and over, finally killing a child. I can imagine a scenario in which allowing a child rapist/murderer to live would risk allowing that scum to rape and kill again.

At June 27, 2008 9:41 AM, OpenID rmott62 said...

I am deeply against the death penalty. I do think if child rapists know they may be executed, they could think why not murder.
I have survive horrific sexual violence as a child, teenager and young woman - but I still feel very strongly that the death penalty is wrong.
I would personally think solitary confinement would be a better punishment.

At June 27, 2008 10:06 AM, Anonymous Anonymous said...

I would like to leave a second comment. I just came from reading about the Jessica Lunsford tragedy and the reaction to Massachusetts' Jessica's law by Massachusetts legislator James Fagan.

To review, one John Couey viciously abducted, sexually assaulted 9 year old Jessica Lunsford then stuffed her into a couple of plastic bags, buried her alive and left her to die. He was a convicted sex offender at the time, out on parole. He has been sentenced to die and, in my humble opinion, his death sentence would be an act of self defense by the state to protect helpless female children.

Jessica's laws mandate severe sentencing for offenders like John Couey. James Phagan, a former defense attorney opposes Massachusetts' version of Jessica's law. He argues, if defending someone like John Couey charged with raping a little girl, because of something like a Jessica's law, he would have to put the victim on the stand and then do everything he can to intimidate the victim in order to get the defendant off, even if he knows the defendant is guilty, even if he will leave the victim psychologically intimidated for life.

The role of a prosecutor is not to prove a defendant guilty but to administer justice. A prosecutor fails in his/her duty if that prosecutor knows of evidence which exonerates a defendant but either ignores that evidence or suppresses that evidence.

The role of a defense attorney is not to get his/her client off but to see that justice is done, to see that the law is upheld, that legal requirements and safeguards are upheld, e.g. that the prosecutor does not comment on the defendant's opting not to testify. No legal ethic requires a defense attorney to torture any witness, especially a child rape victim, on the stand in order to help a defendant he knows is guilty, especially a child rapist, avoid punishment.

Maybe the Massachusetts legislature ought to question whether or not James Phagan is fit to serve,

At June 27, 2008 10:39 AM, Blogger Beth Fehlbaum, Author said...

Thought-provoking, well-spoken post, Marcella. Thank you.

Beth Fehlbaum, author
Courage in Patience, a story of hope for those who have endured abuse
Chapter 1 is online


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