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April 8, 2007

Reading on capital child rape for April 11 and 12

Jordan and Brett are in command this week, addressing the very interesting and very timely topic of whether child rape can and should be a capital offense.  Here is their reading list (with links I found):

I have lots of thoughts about categorical rules concerning the application of the death penalty that I will try to (briefly?) set out to begin our discussion.

April 8, 2007 in Student-assigned readings | Permalink

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Comments

I know it seems like a lot of reading, so I just wanted to note for everyone that we will be going over Coker and quite a bit of the D'Avella article pretty thoroughly in class. So if you can all find it in your hearts to read as best you can and at least thoughtfully skim Coker and D'Avella, it would be greatly appreciated.

Posted by: Brett T. | Apr 8, 2007 9:48:05 PM

I just wanted to follow up on today's conversation by pointing out the unnerving frequency with which children are sexually abused. I think that the theory that sexual abuse predicts a poor outcome for an individual's life is misplaced. I think that it has a significant impact, especially without being given the tools to move past the significant psychological fallout. But more damaging in the development of a child is the impact of numerous challenges (poverty, abuse) coupled with a lack of strengths (trustworthy adults) that more directly predict negative outcomes as an adult, rather than just one challenge, even one as large as being sexually abused.

This link is to a study from 1997 (a little dated, but applicable):
http://www.cmwf.org/publications/publications_show.htm?doc_id=221230

I copied the pertinent part here. "Older" means high school aged, "younger" means middle school aged.

"Of these older girls,12 percent said they had been sexually abused, and 17 percent said they had been physically abused. Younger girls also reported significant rates of abuse: 7 percent responded "yes" when questioned whether they had been sexually abused, and 9 percent said they had been physically abused. Although boys were far less likely to report sexual abuse (4 percent),their physical abuse rates were high: 12 percent of older boys and 8 percent of younger boys said they had been physically abused."

The point of all of this is that as horrible as being sexually assaulted is, it is not the same as death. I agree with the point made today, that by equating it to death, we are unwittingly negatively impacting the survivors.

Posted by: Kristin | Apr 12, 2007 4:34:14 PM

We talked a little in class on Wednesday about the constitutional arguments that might come up in a child rapist death penalty case, and it seemed like the consensus was that allowing the death penalty for these cases would not pass the Roper test of evolving standards of decency.

I am against the death penalty for child rapists, but I think that with regards to the "international opinion" prong of Roper, a skilful lawyer in favor of capital punishment for child rapists might be able to argue that this prong of the test shouldn't even apply to this issue. Whereas most of the international community has recognized for quite some time that young people don't have the same mental capacity as adults (and therefore shouldn't be held to the same standards as adults), my sense is that only relatively recently have we recognized the impact that rape has on child victims. A skillful lawyer could perhaps argue that the rest of the world hasn't caught up with us in dealing with this taboo subject, and so therefore it wouldn't be appropriate to use the "international opinion" standard. Rather than the argument that "it must be a bad idea to execute child rapists because no one else is doing it", that lawyer might argue "it's a great idea that's just starting to catch on as we understand more about the devastating impact that rape has on child victims"

And I think Brett already pointed this out, but that lawyer could also argue that it shouldn't matter that only a small minority of states even have these laws on their books, because those states may be under the (incorrect?) assumption that capital punishment for child rapists is not allowed after Coker.

Posted by: Katherine L | Apr 15, 2007 1:59:14 PM

Very interesting point, Katherine. Such an argument creatively blends the Court's new idea about national concensus (the idea that the direction and degree of the change in attitude is relevant to national concensus) with the international opinion prong.

Of course, if the Court were so inclined, it could just fall back on the idea that international opinion is merely persuasive, and the "true" foundations for any decision in this area are national.

Posted by: Brett T. | Apr 17, 2007 1:33:48 PM

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