Death Penalty for Child Sexual Abuse that Does Not Result in Death

The United States Supreme Court previously held that the death penalty for non-homicide crimes such as rape of an adult woman or the sexual assault of a child are disproportionate to the crime and violate the 8^thAmendment’s prohibition against cruel and unusual punishment.

In 2023, the Florida legislature passed a law that provides for the death penalty for child sexual abuse in defiance of Supreme Court precedent.  Several other state legislatures are considering similar legislation.  

Kennedy v. Louisiana (2008)

In January 2008, the United States Supreme Court agreed to hear the appeal of a man in Louisiana who had a been sentenced to death for the rape of a child who did not die. Patrick Kennedy was convicted and sentenced to death in 2004 for the rape of his 8-year-old stepdaughter. Mr. Kennedy challenged his sentence as a violation of the Eighth Amendment based on the rarity of a death sentence for a non-homicide crime. The Court had last considered a related issue in 1977 when it prohibited capital punishment for the rape of an adult woman in Coker v. Georgia. While Coker did not specifically address the rape of a minor under the age of 12, many viewed the decision as effectively limiting the death penalty to the crime of murder. In addition to Louisiana, five states in 2008 allowed the death penalty for sexual assault against a minor, though no one had been sentenced to death in those states (Montana, South Carolina, Oklahoma, Georgia, and Texas).

In a 5-4 decision, the Supreme Court struck down Louisiana’s statute, ruling that a death sentence was disproportionate to the crime and unconstitutional under the 8^th Amendment. The Court held that all such laws were contrary to the national consensus restricting the death penalty to the worst offenses, which has been defined as murder. Consequently, both Mr. Kennedy and the only other man, Richard Davis, sentenced to death for this crime were resentenced to life in prison without the possibility of parole.

In its analysis, the Court noted that making a death sentence a possibility for these crimes was embraced by just six of the fifty states, a minority view. Justice Anthony Kennedy, writing for the majority, stated, “Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, unconstitutional under the Eighth and Fourteenth Amendments… “The Court held that whether the death penalty is disproportionate to the crime depends on the standards elaborated by controlling precedents and on the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.

Post-Kennedy Legislation

Florida

In April 2023, the Florida Legislature passed a bill allowing the death penalty for sexual battery of a child under the age of 12, after the urging of Governor Ron DeSantis in January 2023. At a news conference, Gov. DeSantis criticized the Supreme Court’s decision in Kennedy, telling reporters he “believe[s] that that precedent was wrong. We do not believe the Supreme Court in its current iteration would uphold it. And so, we are going to be exploring ways to facilitate some capitals trials if you have the worst of the worst.” In May 2023, Gov. DeSantis signed legislation that expands death penalty eligibility to those convicted of sex crimes against children. According to language in the bill, lawmakers echoed Gov. DeSantis’ belief that the Court’s ruling in Kennedy was “wrongly decided and that such cases are an egregious infringement of the states’ power to punish the most heinous crimes.” The bill’s sponsor and former prosecutor Senator Jonathan Martin told his colleagues that “the most serious crime like sexual battery on a child needs the most serious punishment and the most serious penalty and the most serious deterrent.”

Gov. DeSantis believes the U.S. Supreme Court will uphold Florida’s new child sexual battery law. “This bill sets up a procedure to be able to challenge that precedent and to be able to say that in Florida we think that the worst of the worst crimes deserve the worst of the worst punishment,” said Gov. DeSantis. The legislation went into effect on October 1, 2023, and allows the state of Florida to seek a death sentence when an adult is convicted of sexual battery of a child under the age 12.

On December 14, 2023, Lake County, Florida prosecutors announced they would seek the first death sentence for a man accused of committing sexual battery of a minor under the age of twelve. A statement from the office of State Attorney William Gladson said the decision reflects the “severity of the crime and its impact on the community.” In February 2024, the defendant pled guilty and was sentenced to life in prison without the possibility of parole.

States with Proposed Legislation

Arizona state senators introduced a bill in January 2024 that would add sexual conduct with a minor as an offense that can be punishable by death. The bill’s sponsor has since filed an amendment to her own bill, eliminating the death penalty as a possible punishment. This amendment came after the bill was approved by committee and may change the bill’s language

Idaho state representatives introduced legislation in January 2024 that would allow a capital sentence for lewd conduct with a minor under 12 if there are aggravating circumstances.

Missouri state Senator Mike Moon introduced legislation in December 2023 and January 2024 that would allow the death penalty for the offenses of statutory rape in the first degree and sexual trafficking of a child in the first degree.

Republican state representatives in New Mexico introduced a bill in January 2024 that would make aggravated criminal sexual penetration and criminal sexual penetration of a child punishable by death.

South Carolina state representatives introduced legislation in both December 2023 and January 2024 that would allow the death penalty for persons who commit criminal sexual conduct with a victim under eleven years of age.

South Dakota state representatives introduced legislation in January 2024 that would allow the death penalty for the rape of a child aged twelve and under.

Tennessee state Representative William Lamberth introduced a bill in January 2024 that would authorize the death penalty as a punishment for rape of a child, aggravated rape of a child, or especially aggravated rape of a child.