Legalities

Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg

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A "Flaw" in the Child Rape Case?

July 02, 2008 11:12 AM

The controversial decision outlawing the death penalty for child rape has taken a bizarre turn. Today’s New York Times has a Page One story by Linda Greenhouse that the Court -- and the lawyers on both sides -- failed to realize the military recently began allowing executions for child rape. The error was first noted in a military law blog.

The omission seems noteworthy because the Court's decision turned on the relatively small number of states (six) that had allowed capital punishment for child rape. In striking down those laws last week, the Court concluded that since so few states allowed the death penalty for child rape, society had made a judgment that it violated "evolving standards of decency."

Now, as the NYT points out, there apparently is a 7th jurisdiction--the military—that also had allowed it. Lawyers for both sides said they had no idea, and their papers filed in Court did not mention it.

Congress amended the Uniform Code of Military Justice (UCMJ) in 2006 to make child rape specifically punishable by death, and the new provision took effect in October 2007. The change was part of a lengthy revision to the code’s provisions on sexual assault against children.

But it garnered no press attention, and the lawyers involved in the child rape case---who are among the top lawyers in the country---said they didn’t know about the change.

“It seems to have provoked essentially no public commentary,” said Ted Cruz, the former Texas Solicitor General who defended the laws. “Each of the states that adopted these laws did so after extended public debate, considerable press attention and coverage. When this was adopted, it did not provoke any such controversy.”

But as bizarre as this is--and people I talked to this morning can't remember anything similar--it's the kind of oddity that won't change the outcome of the case. There are lots of reasons for that---but perhaps the most important one is that the Court has not considered the military in its death penalty jurisprudence over the past 30 years.

In 1977, the Court struck down the death penalty for adult rape and had a lengthy discussion in its opinion about what states had allowed it. Although the military was one of the jurisdictions that, at the time, also had allowed the death penalty for rape, the Court didn’t mention the military or the Uniform Code of Military Justice in its decision. It only referred to the federal crime of rape by civilians on US territories or military installations.

The Court also didn’t discuss the military in subsequent rulings about the death penalty for juveniles or people with mental retardation.

"The UCMJ has not been a part of the Supreme Court's cruel and unusual punishment analysis in death penalty cases," said David Bruck, a law professor at Washington & Lee University who is an expert on the federal death penalty. "Taking this long-forgotten and inactive shred of military law into account in (the child rape case) would not have affected the result."

Moreover, the current military code still provides the death penalty for adult rape—despite the Court’s 1977 ruling that it was unconstitutional. Last year’s revisions to the Code simply make child rape specifically punishable by death---bringing that crime into line with adult rape.

At any rate, all this is to say it's not the kind of thing that is likely to cause any of the justices to change their minds about the case--after all, 44 states and the federal government (aside from the military) don't allow the punishment.

But the omission, as trivial as it may be, nonetheless has raised lots of questions. Some of the country's top lawyers today are asking themselves how they--and the nation's top judges and their very bright law clerks---didn't realize the military code had recently changed to specifically allow death for child rape.

July 2, 2008 | Permalink | User Comments (17)

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Democrat - unfortunately, rape isn't about the act itself, it's about power. As sick as it sounds, they'll just use an object if they are physically unable to "perform". I don't have a problem with castration, in fact I support it as a punishment, I just know it isn't much of a deterrant in and of itself. For instance, take aways a killers guns, he'll (or she) just use something else. I think the death penalty for child rape, while not a deterrent, at least removes the scum from the public's expenses. They don't deserve to live.

Posted by: Sherilynn | Jul 2, 2008 12:10:06 PM

Giving the death penalty to a child rapist only encourages the rapist to kill the child, so there'll be no witnesses, so the rapist could avoid the death penalty.

Oops.

Posted by: marie | Jul 2, 2008 12:21:19 PM

medical evidence proves rape, not the childs word. In most case the child does not have to testify, they use the medical evidence to convict, the same evidence that would be there if the child dies. So killing the child would not save you from the death penalty. It would just justify it to some folks.

Posted by: sara | Jul 2, 2008 12:58:23 PM

How could not killing child rapers be flawed? It would be inhumane to kill them! How could they go on practicing their love of children if they're dead?

Posted by: barf simpson | Jul 2, 2008 1:36:48 PM

I don't quite follow how quoting the Bible in regards to adultery, fornication, and homosexuality relates to the Supreme Court decision that the death penalty in child rape cases is illegal. Personally, if anyone raped my little girl, they wouldn't live long enough to go to court so it's a moot point for me.

Posted by: Shelly | Jul 2, 2008 2:49:20 PM

meant to say unconstitutional, not illegal...splitting hairs, I know.

Posted by: Shelly | Jul 2, 2008 2:51:31 PM

The reason the general public didn't know about the military dealth penatly rape statute is because Congress never had any hearings on it. Not one single Congressional committee has had any hearings on the Uniform Code of Military Justice in 25 years - since the Military Justice Act of 1983.

What occured was that the Pentagon, through former Department of Defense general counsel Jim Haynes proposed the rape death penatly statute to Congress. It was crafted by the Joint Service Committee on Military Justice and then passed onto Congress. It was then slipped into the National Defense Authorization Act with no Congressional hearings. That's why it was off of the radar.

In 2002, U.S. News & World Report in a cover story "Unequal Justice" reported that Congress has had a shocking lack of interest in America's own military justice system. Perhaps this is the reason that the Supreme Court chose to ignore the miltiary justice system. There aren't any checks and balances by the other branches of government pertaining to our own uniformed citizens. The executive branch and pretty much do as it sees fit unfettered without any oversight.

Posted by: Norbert Basil MacLean III | Jul 2, 2008 3:01:29 PM

Well here is my opinion of this articl as well ate SC ruling, I was molested (raped) from a very young age until I was 12, the man was sentenced to 20 yrs with 1 yrs being in actual jail, he got out in 6 yrs with good behavior, I was 18 when he got out, he remarried, the woman hd 3 kids, he raped another child and went back to jail, serving the remaining 10 yrs of his original sentence and another 20 yrs for the second child, for a total of 30 yrs, he would have gotten out in appr. 15 years had he not died in prison, these people will aways return to the life of hurting children.

They destroy our youth, they destroy our lives, and they get out to do it again. Castration wont stop them, the threat of the death penalty will increase the chances that they kill their victims. The only thing for these people is life without parole in solitary for their first offense.

Posted by: Get Real | Jul 2, 2008 3:11:05 PM

I still find it surprising that so many people think death is a worse punishment than prison. From what I know of prison life, death may be the lesser punishment, especially compared to a life sentence.

I realize many believe all prisons are like minimum security prisons; just summer camps with bars. The prisons where rapists go are grim places.

Posted by: MizFW | Jul 2, 2008 3:16:05 PM

For the people that think castration would deter child molesters:
Read what castration is --the penis is not removed just the scrotom. They can still get an erection.
Like someone else stated,"This is not about sex so much as about power."
they use fear so the child will not say anything.
Killing does not do any good for other molester. They figure they will not be caught.
What punishment whould they receive?
They say in prison inmates look down on child molesters--if this is true let the prisoners know the crime commited. I am sure that he will see what unwanted sexual activity is like and fear should he tell.

Posted by: Beverly | Jul 2, 2008 5:43:42 PM

Child rapists are repeatable offenders. This has been proven multiple times by the lienient court systems and various Judges who have let such people walk. Until the public DEMANDS that the courts change and remove these wacko Judges from their benches by their state and federal elected officials, these heinious actions against children will continue. Harder laws need to be implemented along with very harsh penalties for such individuals (even death). It is you as the taxpayer to demand that policies change else you will continue to pay (personally and/or finanically) for these types of crimes. If your eleced officials are not doing what you feel is necessary - vote the losers out of office. Don't threaten them, really do it. You are in control, remind them.

Posted by: Deputy Dawg | Jul 2, 2008 5:46:52 PM

Some folks seem to miss various points here. First, child rapists who kill their victims usually seem to do so for one or both of two reasons:

a. They actually enjoy the killing - either as an ultimate act of control or because they simply enjoy seeing the pain, suffering and terror in the victim.

b. They hope to conceal the entire fact of the crime by hiding or destroying the physical evidence (the body.)

Judging by the number of children who go missing and either are never found or are found dead only months or years later, one could surmise that eliminating physical evidence is at least a large part of the motivation for many perpetrators. In contrast, killers who truly enjoy degrading their victims very frequently "pose" the bodies to serve as an ultimate degradation - e.g. "trash". (DNA technology may have changed this behavior somewhat in recent years.)

If the absence of specific sociopathic enjoyment of killing, one might therefore infer that at least some perpetrators MAY also consider relative penalties in whether they do or do not murder the victim, and so MAY elect to spare a victim's life if it will keep a death penalty off the table. This would have to be balanced against the relative certainty of detection and conviction - but then, one must wonder how many child rapists are actually thinking rationally.

We should also consider what effect a death penalty has on friends and relatives of the rapist who might weigh that in deciding whether to tip police: they might elect to protect their friend or relative from a death sentence if the victim is still alive.

Probably the most important thing is simply to identify child rapists - and all forcible rapists - and get them off the streets more or less permanently. In this regard, we need to make it easier for people to rat out the perps and otherwise harder for the perps to hide their crimes. Then, the question of Life vs. Death may actually spare some rape victims' lives - and ultimately spare many others from rape itself.

As for the bible quoter, I would point out that most of the provisions quoted address adultery and fornication, not rape. Biblical adultery involves ONLY a married woman, and biblical fornication involves relations between individuals who cannot lawfully be married (e.g. incest and such.) Forcible rape is treated in one passage, and is always capital. However, the same passage makes the victim also liable for death if she does not "cry out"! There is no age of consent in scripture, and a male who "seduces" a virgin of whatever age is simply required to marry her (her option whether to accept) pay her dowery even if she refuses to marry, and can never divorce her.

In the end, applying O.T. biblical punishments in modern secular society very frankly does not work (and is prohibited for Christians anyway.) America is not the Afghan Taliban.

Posted by: Jordan | Jul 2, 2008 6:17:46 PM

does anyone ever do it for the benefit of the people? there is a victim. there are witnesses. there is questionable doubt about the "suspect". guilty is not the issue right now. someone did it and someone is "guilty". there's even an admission of guilt. that does not take back the "action" of the rape, the suggestion of the rape, the molestation, the violation of that poor person. who's rights are more important? it is a "deliberate and intentional" crime and the lives of the people hurt by it all should not have to live through it again!!

Posted by: augusta | Jul 2, 2008 11:45:53 PM

Back in the good old days, when all rapists were routinely executed within a year or so of their conviction, your little girl could walk to the corner store at midnight without fear.

Posted by: Fred Little | Jul 3, 2008 8:06:22 AM

1st degree murder
Rape
child molestation

take any of the three, prove with medical/DNA evidence, kill the criminal.

Posted by: X marks the spot | Jul 3, 2008 1:18:05 PM

Child rapists are not rational and do not care at the time of the crime whether they could get the death penalty. This type of predator is driven by their need to degrade. It would be more degrading for them, to imprisoned for life, then to put out of their misery for good.

Posted by: Victory | Jul 5, 2008 11:31:16 AM

I have worked the prison system folks and believe me the Child rapists are now a clan so to speak. They are in growing numbers and very little is done to them by others.
It is not like the days of the Chain gangs. This is not " Cool Hand Luke days folks it is the kinder gentler correction system. When 1 in every 100 adults in the USA has been incarcerated at one time in their life what do you think really happens inside the walls? It's apathy folks!
Look at all the programs about inside the walls, many hang together or
do petty infractions to be housed in Segregation.

Posted by: armynse | Jul 5, 2008 6:53:15 PM

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