Race, Rape, and the Death Penalty

The Historically Discriminatory Use of the Death Penalty for Rape

Perhaps more than any oth­er crime, the his­tor­i­cal use of the death penal­ty for rape demon­strates the racial­ly dis­crim­i­na­to­ry nature of cap­i­tal pun­ish­ment in the United States and its overt­ly racist under­pin­nings as an out­growth of slav­ery and lynch­ing. This his­to­ry is set out in detail in the ami­cus brief filed joint­ly by the American Civil Liberties Union, the ACLU of Louisiana, and the NAACP Legal Defense and Educational Fund in Kennedy v. Louisiana, the 2008 case in which the U.S. Supreme Court ruled that the death penal­ty was uncon­sti­tu­tion­al for any crime in which the vic­tim was not killed, includ­ing the rape of a child. 

Historically, the use of the death penal­ty for rape has been a Southern phe­nom­e­non that has been applied over­whelm­ing­ly against black defen­dants, and over­whelm­ing­ly in cas­es involv­ing charges of rap­ing a white woman or child. DPIC is not aware of any case in the United States in which a white man has been exe­cut­ed for rap­ing, but not killing, a black woman or child. While the rape of a white woman was a cap­i­tal offense in all of the Slave States, no whites con­vict­ed of rape are known to have been exe­cut­ed under these statutes. In most Slave States, the attempt­ed rape of a white woman also was a cap­i­tal offense for blacks, but not whites. A slave own­er had the legal right to com­pel sex with his slaves, and the rape of an enslaved black woman or girl by those who were not her mas­ter was con­sid­ered a prop­er­ty crime. The ACLU/​NAACP Legal Defense Fund ami­cus brief notes that the 1816 Georgia penal code ​“express­ly pro­vid­ed that rape com­mit­ted by a white man would be pun­ished by a term of impris­on­ment of not more than twen­ty years, and attempt­ed rape by not more than five years, but that slaves and ​‘free per­sons of col­or’ were to be put to death for the crimes of rape or attempt­ed rape of a free white female.”

Following the Civil War and eman­ci­pa­tion, extra­ju­di­cial exe­cu­tions — lynch­ings — were com­mon. The Equal Justice Initiative’s report, Lynching in America, ​“doc­u­ment­ed 4075 racial ter­ror lynch­ings in twelve Southern states between the end of Reconstruction in 1877 and 1950,” near­ly one quar­ter of which were based on charges of sex­u­al assault. Hundreds more blacks were lynched for minor social trans­gres­sions includ­ing unin­ten­tion­al­ly bump­ing into a white woman.

Judicial exe­cu­tions for rape in the 20^th Century reflect the con­tin­u­ing link to race and the lega­cy of slav­ery and lynch­ing. According to sta­tis­tics com­piled by the fed­er­al gov­ern­ment, 455 peo­ple were exe­cut­ed for rape in the United States between 1930 and the Supreme Court’s deci­sion over­turn­ing exist­ing death penal­ty statutes in 1972. 405 (89.1%) were black. The use of the death penal­ty for rape remained almost exclu­sive­ly a Southern phe­nom­e­non: 443 of the exe­cu­tions for rape (97.4%) occurred in for­mer Confederate states.