Death Penalty for Child Sexual Abuse that Does Not Result in Death | Death Penalty Information Center

Crimes Punishable By Death

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 8thAmendment’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 8th 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.

Tennessee

In January 2024, state Representative William Lamberth intro­duced a bill that would autho­rize the death penal­ty as pun­ish­ment for rape of a child, aggra­vat­ed rape of a child, or espe­cial­ly aggra­vat­ed rape of a child. These crimes autho­rize the death penal­ty despite the fact that no homicide occurred.

On May 9, 2024, Governor Bill Lee signed the bill, which took effect on July 1, 2024. Individuals con­vict­ed under this leg­is­la­tion could be sen­tenced to death, life impris­on­ment with­out parole, or life impris­on­ment with parole.

Idaho

On March 7, 2025, state Representative Bruce Skaug intro­duced a bill that would autho­rize the death penal­ty as pun­ish­ment for aggra­vat­ed lewd con­duct with a minor child under age 12. This leg­is­la­tion autho­rizes the death penal­ty despite the fact that no homicide occurred.

On March 26, 2025, Governor Brad Little signed the bill, which becomes effec­tive July 1, 2025. Individuals con­vict­ed under this leg­is­la­tion could be sen­tenced to death or life imprisonment.

Oklahoma 

On February 3, 2025, state Senator Warren Hamilton intro­duced a bill that would autho­rize pros­e­cu­tors to pur­sue a death sen­tence for the rape of a child under age 14 for first-time offens­es. State law already required an indi­vid­ual pre­vi­ous­ly con­vict­ed of this crime to be eli­gi­ble for the death penalty. 

On May 22, 2025, Governor Kevin Stitt signed the bill, which will go into effect on November 1, 2025. If found guilty of this offense, an indi­vid­ual can be sen­tenced to death or life impris­on­ment with­out the pos­si­bil­i­ty for parole. 

States with Proposed Legislation

2025

Alabama

Alabama state rep­re­sen­ta­tive Matt Simpson intro­duced leg­is­la­tion in January 2025 that would require any per­son aged 18 or old­er con­vict­ed of rape in the first degree or sodomy in the first degree of a vic­tim under age six be sen­tenced to death or life in prison with­out parole. If the con­vict­ed indi­vid­ual is under age 18, then they would be sen­tenced to life with­out parole or life.

Arkansas state rep­re­sen­ta­tive Matt Stone intro­duced leg­is­la­tion in March 2025 that would cre­ate the offense of cap­i­tal rape, which includes hav­ing sex with a per­son 13 years or younger. Under this law, those aged 18 or old­er con­vict­ed would face the death penal­ty or life in prison with­out parole. Individuals under age 18 would face life impris­on­ment with the pos­si­bil­i­ty for parole after 20 years.

Kentucky state rep­re­sen­ta­tives intro­duced leg­is­la­tion in January 2025 that would make rape in the first degree, sodomy in the first degree, and sex­u­al abuse in the first degree cap­i­tal offens­es when the vic­tim is under 12 years old. This cap­i­tal offense would be pun­ish­able by death, life impris­on­ment with­out parole, or life with parole after 25 years. 

Mississippi state rep­re­sen­ta­tive Jansen Owen intro­duced leg­is­la­tion that would make rape of a child under 12 years old that dam­aged the child’s sex­u­al organs a death-eli­gi­ble offense. Individuals 18 or old­er would face the death penal­ty or life in prison without parole.

Missouri state sen­a­tor Mike Moon intro­duced leg­is­la­tion that would make statu­to­ry rape in the first degree and sex­u­al traf­fick­ing of a child in the first degree death-eli­gi­ble crimes. If enact­ed, it would only apply prospec­tive­ly. Missouri state rep­re­sen­ta­tive Justin Sparks intro­duced leg­is­la­tion that would make sodomy in the first degree of a child under 12 years of age a death-eligible offense.

Virginia state rep­re­sen­ta­tive Timothy Griffin intro­duced leg­is­la­tion that would rein­state the death penal­ty for cap­i­tal mur­der and rape, forcible sodomy, and object sex­u­al pen­e­tra­tion when the vic­tim is a child under the age of 13 and the offend­er is over the age of 18 (and does not have intellectual disability).

2024

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.

An International Perspective

Death penal­ty for child sex­u­al abuse and mis­car­riages of jus­tice in Florida and Tennessee by Adriano Martins, Ensemble Contre Le Peine De Mort (ECPM) Board Member and for­mer senior offi­cial of the diplo­mat­ic ser­vice of the European Union, September 192024