WHEN WE think of the death penalty, most of us think capital punishment is only used in a very limited range, against those who have taken another human life. Yet that is not entirely true. In recent years, several states have been sentencing to death those accused of raping children and today, according to an article in The Washington Post ("Child Rape Tests Limit of Death Penalty," April 14) the Supreme Court will be considering whether this is a legal application of the death penalty. If they eventually decide in the affirmative, the United States will join a small minority of countries, including Saudi Arabia, China and Egypt, in allowing the death penalty for crimes other than murder. Worse than that though, the decision could very well turn out to be harmful to the very people it is trying to protect.
Currently seven different states, including Louisiana, where the appeal has come through to the Supreme Court, allow the death penalty as an option for child rapists. In the 1977 case Coker v. Georgia, the Supreme Court ruled that the death penalty was not an acceptable punishment for the rape.However, in the case, the court also specified that the victim in question -- a 16 year old -- still qualified as an adult woman.This left open the possibility that the death penalty could still be applied to child rape.
However, applying the death penalty to child rape could potentially prove harmful to the very children it would be trying to protect. The first reason for this would be that the majority of child rapes are perpetrated by a family member or friend of the family. If the family feared the death penalty as a possible punishment, there might be an increased reluctance to report those who have committed rapes.
The second reason applying the death penalty could actually be harmful is that it would remove the distinction between rape and murder. In many cases, removing this distinction could be very destructive. If, for example, a child was abducted and raped, there would be almost no incentive for the kidnapper to keep a child alive if he or she had reason to suspect that he or she would be tried for the death penalty when he or she returned. In such a case, it would be much more advantageous simply to kill the child and thus remove any witnesses.
There also doesn't really seem to be any constitutional basis for allowing rape to merit the death penalty. Over the years, various decisions by the Supreme Court have made the definition for what crimes merit the death penalty very strict. Historically it wasn't always that way. The first person executed in the United States was Captain George Kendall, who was shot by a firing squad in Jamestown after being accused of sowing discontent and mutiny.The next execution was Daniel Frank, who was executed in 1622 for theft. Up until the 1977 case, capital punishment was a viable penalty for rape.
In the decision on the 1977 case, according to the Post, Justice Byron R. White wrote: "We have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life." The court did note in the decision that the victim qualified as a woman, not as a child. However, it seems from the write up that the overall rationale of the court was that the death penalty was such a severe punishment, it was only merited by those who themselves had taken a life. Life in prison would be a much more appropriate punishment for those who raped children.
Additionally, if the decision were made that the death penalty could be issued for raping a child, that would mark a distinction between crimes committed against children and crimes committed against adults, a distinction which is unprecedented in our legal system. If we instituted such a law for rape, how could we apply it across the board? Would there be harsher punishments for kidnapping children, for murdering children, for attacking a child than attacking an adult?
There is no doubt about it, rape is a horrendous crime. The idea of the rape of a child, the members of the society we are supposed to protect, seems almost inconceivable. However, this does not mean it merits the punishment of death. No matter how horrible, in our gut, a crime may seem, we still have to think logically about what punishment would most deter someone from committing a crime and would also bring justice to the victim and their family, while at the same time still abiding by the standards of justice laid out by the constitution and the legal system as it is in place today.
Margaret Sessa-Hawkins's column appears Wednesdays in The Cavalier Daily. She can be reached at msessahawkins@cavalierdaily.com.
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