“Child Rape and the Death Penalty”
The title of this post is the title of this new paper authored by Rosemary Ardman now available via SSRN. Here is its abstract:
In May 2023, Florida authorized the death penalty for the sexual battery of a child under twelve. The law, which passed with overwhelming bipartisan support, challenges the Supreme Court to overrule Kennedy v. Louisiana, the controversial 2008 decision holding that the Eighth Amendment prohibits capital punishment for the rape of the child. Tennessee followed suit with its own capital rape law in May 2024, and six other states have considered similar expansions to the scope of the death penalty in the past year.
This surge of legislative interest in capitalizing child rape has received limited attention, but it suggests the reemergence of an old frontier in Eighth Amendment jurisprudence. There is a need to reexamine Kennedy in this light and, more broadly, to interrogate the paradoxical role that sex crimes against children occupy in American law and culture.
This Article provides that analysis and makes three scholarly contributions. First, the Article provides a thick descriptive account of the dissonance of the criminal system’s response to child sexual abuse — a blend of apathy and outrage, horror and indifference. Second, the Article uses the concept of disgust to reconcile these seemingly contradictory narratives. Though most often associated with food and bodily waste, disgust can attach equally to social violations. Scholars have employed disgust to explain anti-sodomy laws, incest prohibitions, and domestic violence judgments, and this Article extends the analysis to child rape. Third, the Article argues that understanding these prosecutions through the lens of disgust reveals the constitutional infirmities of the death penalty for child rape. Ultimately, the Article suggests that capital child rape laws act as a symbol of revulsion at the expense of the broader system of punishment, an expression that reflects our own unsettled view of the crime.