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.

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.

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.

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 19, 2024