By: Corey Rayburn
“It is true rape is a most detestable crime, and therefore
ought severely and impartially to be punished with death; but it
must be remembered, that it is an accusation easily to be made and
hard to be proved, and harder to be defended by the party accused,
tho never so innocent.” Sir Matthew Hale, 1676
Hale’s oft-cited words are more famous for their bearing on the
procedural aspects of rape law, but it is the first part of the
quote that relates to this article. While little has changed
since Hale’s time in how a rape trial proceeds, the application of
the death penalty to rapists that he so vehemently supported fell
into disfavor during the 1970’s in America and abroad. The
last time a person in the United States was executed for rape was
forty years ago in Mississippi. The movement in the United
States against the death penalty for rape culminated in 1978 with
the Supreme Court’s decision in Coker v. Georgia.
After the Court held that executions for rape were cruel and
unusual punishment in violation of the Eighth Amendment of the
Constitution, there was little left to be debated about the
issue.
Or so we thought. Efforts to revive the death penalty for
the crime of rape in the United States gained a foothold in
Louisiana in 1995. On June 17 of that year, Governor Edwin
Edwards signed into law provisions that allowed capital punishment
for those convicted of raping a child. The passage of a child
rape death penalty statute in Louisiana set off a series of debates
in state legislatures throughout America. Those deliberations
coincided with similar reviews of criminal penalties for rape
around the world. The fervor that has erupted regarding child
molestation is not new, but the desire to apply the death penalty
to these crimes has gained momentum in recent years. Calls
for law and order and the salient belief that child molesters
cannot be rehabilitated have made the death penalty an attractive
solution to a “tough on crime” public in the United States.
That these laws may conflict with the Court’s holding in
Coker is not generally a consideration for those seeking
swift “justice.” Then again, that is not the concern of this
article either.
While it is certainly important to speculate on what the Supreme
Court would decide in a hypothetical case concerning the death
penalty as applied to child rape, it is also critical to examine
the legal effects these policies will have on womyn, children, and
rapists. Primarily, careful scrutiny must be applied to the
proposition offered by some observers that “death sentences under
the new statutes would not be vulnerable to arguments . . . that
they are vestiges of viewing rape victims as male property.”
Many believe that because the new laws target child molesters, the
issue of gender is irrelevant to the discussion. Despite the
abundance of material connecting feminist criticism to rape, some
commentators act as though the Louisiana statute—and others like
it—can escape these critiques by merely changing the “protected”
group targeted by the law from womyn to children.
. . . .
Section I of this article will examine the history of the death
penalty’s application in rape cases with emphasis on Western legal
systems. Section II will speak to the rhetoric underlying the
legislative and judicial moves toward reviving the death penalty
for rape. Section III will analyze the policy and legal
effects caused by the new statutes and the language supporting
them. Section IV will offer some conclusions and a few
observations about the direction rape law is taking under these new
statutory regimes.
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