Thursday, June 26, 2008

The Worst Thing You Can Do to a Child Short of Murder

Andrew Koppelman

There are a number of puzzling aspects of the Supreme Court’s decision yesterday in Kennedy v. Louisiana invalidating the death penalty for child rape, not least that, as Eric Posner observes, it appears to bar states from innovating in this area. I’m not going to offer any opinion here about the soundness of the result that the Court reached. What puzzles me particularly is the view reflected in these statutes, that the most heinous thing one can do to a child short of murder – an act that uniquely deserves a punishment equivalent to that for murder - is to rape him or her. That is a very strange idea.

I have three kids of my own, and I obsess about dangers to children as much as any parent does. So I hope it’s not misinterpreted as callousness to children when I say that the logic of the Louisiana law seems to me to reflect misplaced priorities.

The Louisiana Supreme Court, in a sentence quoted in the U.S. Supreme Court decision, declared that “short of first-degree murder, we can think of no other non-homicide crime more deserving [of capital punishment].” To find worse crimes, even in the narrow area of child abuse, it’s not necessary to look beyond the U.S. Reports. DeShaney v. Winnebago County is a 1989 case in which a father beat his four-year-old son, Joshua, so severely that the boy suffered severe brain damage and remains profoundly retarded. His father received a sentence of two to four years in prison. He is now out of jail, while Joshua lives, partly paralyzed, in an adult care facility, which he will never leave. Wouldn’t it have been better for young Joshua if he had been raped? By what logic is the harm in the Kennedy case (which concededly is pretty awful) worse than that in DeShaney?

I suspect that what’s going on here is the familiar American obsession with the purity of children, particularly in relation to matters involving sex. Sex is perceived as contaminating to children in a particularly horrible way. That’s why we tolerate children’s exposure to remarkably violent entertainment, while shrinking from exposing them to anything sexual. This obsession with sex produces pathologies that I’ve discussed before, here and here. The peculiar priorities of the Louisiana law are another example.


first off, i agree that the description of child rape as the worst thing you can do short of murder does offer an insight into the thinking of the LA legislature and presumably the fact that this was popular legislation.

second, i would like to point out that LA's governor, Bobby Jindal, signed legislation today giving judges the discretion to impose castration on first time offenders and making castration mandatory on a second offense. apparently the legislation offers the offender the option of physical or chemical castration.

if you watch Jindal's Fox News interview, he frequently calls sex offenders monsters. i disagree. while the crimes themselves are monstrous, the perpetrators are often sad cases more in need of mental help than incarceration in a violent environment. you have your occassional moosebruegger, but for the most part these are sad people in need of help.

it's a terrible crime, and perhaps castration has a role to play in treatment, but i am very reluctant to sanction any government sterilization.

what kind of country do we want to live in?

that's a thought provoking and thoughtful post mr. sullivan ..

Obviously, as someone who is opposed to the death penalty in all circumstances, I have to be moderately happy with the Supreme Court decision.

At least it will further reduce the absurd situation where if an accused is wealthy enough to get to Europe (or, I think, Canada also) before trial, he will only be extraditable on terms that the state commits not to enforce the death penalty, while a less affluent accused who cannot manage the travel has no such advantage.

I also agree with the proposition that rape is not by any means necessarily the most heinous thing which can be done to a child short of murder.

There is, undoubtedly a deep societal obsession with the preservation of virginity in the female child. It stems from the feudal view of the female child as property with the virgin daughter as a highly marketable asset and the non-virgin as “damaged goods”. Thus in the English offence of High Treason, having sex with the King’s eldest unmarried daughter was treason, while if she was married it was merely adultery – a quite blatant recognition of the virgin daughter as a negotiable asset in the game of state alliances.

To this day, you get old biddies at English weddings, muttering to each other at the back of the Church that the bride should not be wearing white, a throwback to the custom that only virgin brides were entitled to do so, this in a society where the bride is actually pregnant at about half of all weddings.

As for child molestation, there is much evidence that this is a pathology which is incredibly difficult to treat, which is why I am against the sort of laws which give the public access to details of sex offenders in the community since it increases the risk of offenders going underground, but I do favour conditions of parole which may include requiring offenders to live at approved addresses, requiring they not frequent places where they may be tempted, tagging, and the taking of medication to suppress the libido.

I do not think any Court in the 21st Century should have the power to order any form of irreversible physical mutilation, such as castration.

This has nothing to do with the purities of sex and virginity. What a load of liberal hogwash? To suggest that it is based on the value of virginity is shallow and shortsighted.
Aside from the psychological problems that will result and complicate future relationships there is definite physical harm. Even if the rapist didn’t beat, brain damage, amputates, or permanently paralyzes their victim. They could transmit an STD and depending on the child age cause internal organ damage to the point of sterilization.
In addition, the author does not even consider the deep physiological need to protect a child from harm. While liberals joyfully advocate the murder of 2 million fetuses so the mother isn’t “inconvenienced” by her pregnancy, the balk at the thought of a child rapist being put to death. As long as liberals and progressives support convenient abortions, they have no moral ground to stand on when they object to capital punishment or gun control especially when it is “to save the children.”

I do not think that the Louisiana court had any "obsession with the purity of children" in mind when it declared child rape to be so heinous. There are severe psychological scars left by such crimes, particularly when, as in this case, the perpetrator was someone the child had known, trusted, and even loved.

It's not so much that now the child is no longer a virgin; it's that she (or he) will likely have to deal with the specter of that crime for the rest of her life in every single interpersonal relationship. Rape is traumatic enough for adult victims; how much more so for children with little to no understanding of why this could be happening? That is probably what the court was thinking of--the immense damage done to the child's emotional (and, as previous posters have pointed out, possibly long-term physical) well-being.

That being said, the harm done to Joshua DeShaney was horrible. And while I don't mean to sound callous, I have to wonder if now, in his brain-damaged state, he realizes what has happened to him. Does he mourn the loss of his former self? Or is he somehow able to lead a happy, if extremely limited life?

I began my previous post by saying that I am against ALL capital punishment. As you will all know, that is the law in all member states of the Council of Europe. Therefore I am not saying that a particular rape is necessarily less heinous that a particular murder.

Indeed in our courts as, I believe, in yours there are some cases where murder is the reaction to years of abuse and one is left with the feeling that the appropriate sentence is a non-custodial one, others where the Court has to say that "life" should mean whole of life.

The same is true of every other crime. While all sexual abuse of children is criminal, the impact on the victim can vary very considerably.

In some cases, even those where there has been rape, the evidence from the experts to the Court, experts appointed in the interests of the child, sometimes conclude that more long-term harm will be done to the child if she is wholly separated from the parent who has done wrong.

Execution could result in a child in later years blaming herself for being the cause of her father's death.

Sentencing in all such cases is an incredibly difficult process and a
"one size fits all" approach to sentencing very often does not serve the interests of the victims or of justice.

So the fact that Louisiana legislators made child rape punishable by death. but not severe battery of a child, shows they had an unhealthy obsession with the sexual purity of children? Really? We can't think of other reasons? Like how hard it might in practice to separate out beatings so severe as to deserve death from other horrible but not as destructive violent acts against children? Or the fact that the intent to cause specific injuries during beatings is often murky, while a rapist is far more likely to know the kind of harm he is committing? Or the fact that beyond a prudish, retrograde obsession with the sexual purity of children (rednecks!), the legislators might think that the rape of children is likely to poison their capacity for intimacy well into adulthood. Maybe we could try actually imagining sympathetically what might have motivated the legislators instead of writing them off as dumb yahoos driven by their own hangups.

Rd wrote:-
“Maybe we could try actually imagining sympathetically what might have motivated the legislators instead of writing them off as dumb yahoos driven by their own hangups.

How can one legitimately ascertain the intent of a legislative body? Assume 60 of 100 legislators vote for a proposal and 40 against. Who knows what the intent of each of the 60 might be? Many may have given no consideration at all to the issues and simply have voted in accordance with the recommendation of the party whips. Others may have voted as part of a legislative trade off - ” you vote for me on clause x” and I will vote for you on clause y”. Intent can only be inferred and it is a perilous process – which is why originalism is a heretical form of constitutional interpretation.

The words of the statute control – one has to look at it objectively. To impose the death penalty for the crime of rape means that (i) the legislators thought the death penalty a permissible punishment and (ii) child rape was at least as heinous as murder.

It therefore follows that the “contemporary standards of decency” which motivate the legislators of Louisiana are not those which motivate the legislators of the 47 member states of the Council of Europe totalling 800 million human beings. No COE country approves the death penalty for any offence. No country imprisons so high a percentage of its population as the USA does.

Whether that makes the legislators of Europe any more “wise, humane and well intentioned” towards children than those of Louisiana is not a matter for me to judge.

What I do know is that historically Louisiana has not exactly been at the forefront on issues such as the civil rights of its non-white citizens. I should be interested to learn more about the percentage of GDP Louisiana spends on services for the protection of children in comparison with the average spend in Europe.

Remember, the courts and lawyers can only try to pick up the pieces after the damage is done.

I tend to the view that imposing the death penalty for rape is rather like making sheep stealing a capital offence (which it once was in England). It is substituting retribution “in terrorem” as a substitute for prevention.

Either you take a view that here is an international norm beneath which no society should fall: eg genital mutilation of females is always wrong, torture of prisoners is always wrong, judicial murder is always wrong, or you proceed along lines that each separate society should proceed at its own speed and catch up with the rest as and when it sees fit.

Argue how you wish, but, please, don’t give me too much by way of bulls**t on the noble intent of the Louisiana legislators.

All child abuse, sexual or not, is vile, repugnant, and despicable. As I read the decision, I was reminded of Aristotle's distributive justice, in which proportionalism is intrinsic to justice, or else, errors commit an injustice.

I am not a fan of the death penalty, except for serious cases in which crimes against humanity (not merely a single crime) have been committed. In the same vein, I do not believe in lex talionis, at least not at the first bar, but on a repeat offense of sexual violence, I support castration, assuming rehabilitation did not, or cannot, succeed.

Yet, proponents of the LA law prefer the death penalty to castration? Again, lack of proportionality seems to be a character flaw in our national psyche.

The post we're commenting on argues that Louisiana's decision to punish child rape by death and not the severe beating of a child is likely explained by an unhealthy obsession with the sexual purity of children. I argued that there were numerous rational reasons why they might have made that particular choice. Your comment is utterly unresponsive to that, and is concerned mainly with the general evil of the death penalty and the superiority of European mores.

I argued that its best to try understand sympathetically why the legislature might have acted as it did. Your stance is to write them off a priori as bigoted yahoos. So spare me the bulls**t of your own lazy prejudices.

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