The Ethical Debate over the Death Penalty for Child Rapists

James Crawford

CMRJ500, D001

Fall 10

Stephanie Myers-Hunziker
 Introduction

The problem of child rape is a serious problem in the United States today. The lost

innocence resulting from the rape of a child is situation that moves the heart of the nation. Many

call out for the execution of rapists who prey upon the youth in this country. Society has become

so distraught and infuriated by the rape of children that it is willing to re-classify rape of children

as a death row offense, a punishment otherwise reserved for loss of life or treason. A question

of ethics arises from this issue: should capital punishment be used as a deterrent and punishment

for a crime which does not result in loss of life. The courtroom workgroup of judges and

attorneys have reviewed and challenged existing laws. Society continues to debate the issue over

whether capital punishment is the correct response for the crime.

I. Introducing the Death Penalty

Historically, the propensity to use capital punishment as a form of punishment has been

high. Mankind has always been driven to counter acts of aggression against them or their

families with the mindset of retaliation. While the age old retributivist philosophy of “eye for an

eye” is the basis of law and punishment, it was also devised in a more uncivilized and barbaric

time. Society has evolved as an ethical and moral people to the point where there are alternatives

to taking of a person’s life in order to seek justice. As mans’ sensibility evolved along with his

genome, so did the thought that not all wrongs committed against another deserved the

punishment of death.
 One of the earliest recorded retributivists, Babylonian ruler Hammurabi (1750 B.C.),

addressed the death penalty as punishment for offenses.1 He was considered “the great law

giver” due to the twenty-five rules governing which offenses constituted capital punishment. In

this time period the threat of losing one’s life for wronging another kept the people in check.

Hammurabi’s Laws were very strict utilizing capital punishment for many offenses. The

enforced of these laws was strict in order to keep the peace. This resulted in innocent people

sometimes receiving death for crimes that today would be considered misdemeanors. Capital

punishment was even addressed in the Hebrew Bible within the Book of Leviticus,” If a man

takes the life of any human being, he shall surely be put to death.”2 While these laws and

guidelines were laid out thousands of years ago for a more barbarous time, they are not ethically

applicable in the modern United States of America.

II. Arguments Against Capital Punishment

Capital punishment began losing its foothold as an ethical response to crime control. New

York abolished the death penalty as an acceptable form of punishment in 1835. This was

followed by Michigan in 1841.3 David Savage (2008) noted even though the death penalty had

been restored as a form of capital punishment for murder in 1976, the U.S. Supreme Court stated

in 1977 that utilization of capital punishment for rape was both cruel and unusual. Savage also

mentions the case of Kennedy v. Louisiana (2008) which involves Patrick Kennedy being

sentenced to die for the rape of his 8-year old stepdaughter. This case sparked much outrage

from the public against Kennedy and insisted the courts respond with the harshest sentence:

death. However, the U.S. Supreme Court stepped in and reversed the decision when it agreed

1
L.W. King, translator. Exploring Ancient World Cultures: An Introduction to Ancient World Cultures on the
World-Wide Web. “Near East: Hammurabi’s Code of Laws.”
http://eawc.evansville.edu/anthology/hammurabi.htm.
2
Leviticus 24:17-20
3
Friedman, Lawrence M. Crime and Punishment in American History. New York: Basic Books, 1993
with Kennedy’s lawyers that the death penalty was in violation of the Eight Amendment’s cruel

and unusual punishment restriction.4 Morally, by allowing offenders to receive the death penalty

society is lowering its level to that of any other murderer. The only difference is that society

says it is dealing out the death penalty as a form of deterrence and retribution. An ethically and

morally evolved people should be able to find alternative forms of punishment.

Clair Finkelstein (2002) points to Kant’s moral equivalence approach as the basis for a more

modern humane approach to addressing the issue. There is simple elegance in the statement she

makes that “We simply are not prepared to rape the rapist and assault the assailant.” This

approach is attractive to embrace as it removes “the same harm or evil as a form of punishment”

and replaces it with a form of punishment that is morally commensurate. These punishments

include registering with a Sex Offender database, monitoring the offender’s movements with

monitoring devices such as those used with parolees and those confined to their homes, removal

of computers to decrease opportunities to locate possible child victims, and continuous therapy

sessions with a counselor. This takes us away from the “eye for an eye” approach since society

is saying it no longer believes the punishable actions committed by offenders need to be revisited

back upon them in order to seek justice. With that being said, there is a caveat to this line of

thought.

III. Arguments for Capital Punishment

Ideally, the only time a person should be put to death is if, and only if, their crime is so

heinous in the eyes of society and the law or the offender is so unremorseful of their action

against others within society that the only logical course of action is death. This should

especially be the case with the offender fully acknowledges their lack of remorse and makes

4
Savage, D., (2008). Death for Rape, an Echo of the Past. ABA Journal, 94, 24-25. Retrieved January 7, 2007, from
Criminal Justice Periodicals. (Document ID: 1462413451).
statements to the fact that they may kill again. This also applies to cases dealing with repeat

child rapists. Tom Sorell (2002) statement speaks volumes: “[B]ecause [the death penalty] is as

severe as it is, it should not be applied to murder of all kinds, but only to murder without

extenuating circumstances.”5 In this regard, it would be ethically and morally correct to remove

any financial and custodial burden of containing this individual through incarceration.

Sandra Grover (2009) argued against the Courts reversal in Kennedy by saying “child rape is

a form of torture and meets the criteria for a crime against humanity even when committed by a

private individual if part of a pattern within the State…. It is contended further that the latter

[U.S. Supreme Court] faulty analysis creates a diminution of the factual reality of child rape and

undermines respect for the human dignity of the child.”6 Grover’s statement matches the

attitudes of much of society. Alan Watson (1977) is quoted saying “every demand for law

reform is a recognition that law has come to diverge from society.” This can be seen in what is

occurring in the United States today. The U. S. Supreme Court is seen by many in society as

becoming divergent for morally down-playing harsher punishments such as the capital

punishment for offenders of child rape. Watson also is stated saying that “laws should revolve

around society’s needs and opinions, not the other way around.”

IV. Conclusion

5
Sorell, T., (2002). Two ideals and the death penalty. Criminal Justice Ethics, 21(2), 27-35. Retrieved January 3,
2011, from Research Library. (Document ID: 290768121).
6
Grover, S., (2009). Child rape as a crime against humanity: challenging the United States Supreme Court reasoning
in Kennedy v. Louisiana. The International Journal of Human Rights, 13(5), 668. Retrieved November 10,
2010, from ProQuest Military Collection. (Document ID: 1947025561).
Finkelstein, C., (2002). Death and retribution. Criminal Justice Ethics, 21(2), 12-21. Retrieved

January 3, 2011, from Criminal Justice Periodicals. (Document ID: 290768061).

Friedman, Lawrence M. Crime and Punishment in American History. New York: Basic Books,

1993

Grover, S., (2009). Child rape as a crime against humanity: challenging the United States

Supreme Court reasoning in Kennedy v. Louisiana. The International Journal of Human

Rights, 13(5), 668. Retrieved November 10, 2010, from ProQuest Military Collection.

(Document ID: 1947025561).

King, L. translator. Exploring Ancient World Cultures: An Introduction to Ancient World

Cultures on the World-Wide Web. “Near East: Hammurabi’s Code of Laws.”

http://eawc.evansville.edu/anthology/hammurabi.htm.

Savage, D., (2008). Death for Rape, an Echo of the Past. ABA Journal, 94, 24-25. Retrieved

January 7, 2007, from Criminal Justice Periodicals. (Document ID: 1462413451).

Sorell, T., (2002). Two ideals and the death penalty. Criminal Justice Ethics, 21(2), 27-35.

Retrieved January 3, 2011, from Research Library. (Document ID: 290768121).

Watson, A., (1977). Society and Legal Change. Edinburgh: Scottish Press