Academic

Death Penalty For Child Rape: Rhetorical Games In Supreme Court Briefs

By Dan Filler

One ongoing issue in the debates over child sexual abuse is the tendency of certain advocates to play games with statistics.  In  Making the Case for Megan's Law: A Study in Legislative Rhetoric, I noted that advocates for sex offender notification often used data about widespread levels of child abuse and neglect to prove the existence of a child abduction crisis.  The actual number of stranger abductions - the sorts of cases Megan's Law is designed to combat - is quite small and advocates apparently felt they needed to puff up the problem to promote new laws.

Now it seems that the state amici in Kennedy v. Louisiana, the Supreme Court's upcoming child-rape death penalty case, are playing the same game.  In their brief, Attorneys General from Texas, Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina, and Washington argue that child rape has a devastating effect on society.  The crime is devastating for kids - no doubt.  But the following paragraph, which follows directly under this claim, looks an awful lot like the bolstering we saw in legislative debates over Megan's Law.  It conflates child rape with child neglect, emotinal abuse, physical abuse, prostitution, pornography, and other things, thereby producing very large numbers and a sense that a crisis is afoot:

The Court should also consider the lasting and devastating effects that child rape inevitably has on the victim and society. [cites omitted]   Studies show that ?child abuse and neglect have pervasive and long-lasting effects on children, their families, and the society.? Ching-Tung Wang & John Holton, Prevent Child Abuse Am., Chicago, Ill., Total Estimated Cost of ChildAbuse and Neglect in the United States, at http://www.preventchildabuse.org/about_us/media_releases/pcaa_pew_economic_impact_study_final.pdf [hereinafter Wang & Holton]. To get some sense of the magnitude ofthe problem of child abuse and neglect in the United States, it is estimated that the annual economic cost ofchild abuse and neglect in 2007 value is $103.8 billion. Id. In 2005, the U.S. government reported that ?an estimated 899,000 children in the 50 States, the District of Columbia, and Puerto Rico were determined to be victims of abuse or neglect.? U.S. Dep?t of Health & Human 24 Servs., Admin. for Children & Families, Admin. on Children, Youth & Families, Children?s Bureau, Child Maltreatment 2005, Summary, at xiv. Of these children, 9.3 percent suffered sexual abuse. Id., at xv. And these are just the reported cases; it is widely recognized that incidents of child abuse are largely under-reported. See, e.g., Advocates for Youth, Fact Sheet, Child Sexual Abuse I: An Overview, at http://www.advocatesforyouth.org/PUBLICATIONS/factsheet/fsabuse1.htm. (last visited Feb.14, 2008) [hereinafter Advocates for Youth, Fact Sheet,Child Sexual Abuse]; Report of the Indep. Expert for the United Nations Study on Violence Against Children, U.N., Gen. Assembly, Rights of the Child, at 8 (Aug. 29, 2006).

The one sexual abuse statistic the brief did cite (9.3% of child abuse cases involved sexual abuse) does not refer to child rape.  Rather, "sexual abuse" is defined in the cited report as : contacts for sexual purposes, molestation, statutory rape, prostitution, pornography, exposure, incest, or other sexually exploitative activities. 

Child rape is devastating to the victims.  But this case is about whether the death penalty is appropriate for particularly brutal child rapes - not whether child abuse, child porn, child prostitution, statutory rape, or other crimes are pervasive in society. 

Full post as published by The Faculty Lounge on April 15, 2008 (boomark / email).