Historical and Modern Implications of Child Rape and the Death Penalty

Rebecca Duke

Arizona State University



Historical and Modern Implications of Child Rape and the Death Penalty

            Although several states have statutes supporting the death penalty for crimes other than homicide, sex offenses such as child rape require particular attention, specifically regarding issues with the Eighth Amendment as well as numerous social implications for sex offenders.  Policymakers and academics continue to analyze the potential effectiveness, as well as the implications, of the death penalty for sex crimes; however, most states claiming cruel and unusual punishment, have already barred the practice.

Historical Cases of Rape and the Death Penalty

            No state has executed an offender convicted of anything other than homicide since the United States reinstated the death penalty in 1976 (D'Avella, 2006).  However, some states sanctioned the death penalty for certain felonies such as aggravated kidnapping or child rape.  Legal cases such as Jackson v. State (1969) (Georgia) and State v. Wilson (1996) (Louisiana) bring questionable issues to the surface as to the efficacy of the current laws involving sex offenders.  Although both of these cases involve aggravated rape, the case of Jackson v. State (1969) centers on the rape of an adult woman, where on the contrary, State v. Wilson (1996) and State v. Bethley (1996) focus on child rape.  Circumstances including vulnerability, laws relating to age of consent, and aggravated conditions such as physical injury place additional considerations for punishment, including the death penalty.

            The case of Jackson v. The State (1969), describes the discretionary issues relating to imposing the death penalty on rape cases.  In this case, the jury convicted Jackson, a 21-year-old black man, of raping a married white woman in her home.  As segregation issues continued to trouble much of the South, the jury found the crime immoral and unacceptable and ultimately recommended the death penalty.  However, legal advocates, including Jackson’s lawyer, claimed that the death penalty was unconstitutional, citing cruel and unusual punishment as stated under the Eighth Amendment (Wolfgang & Riedel, 1975).  According to court documents and psychiatric testimony, Jackson did not commit rape with any aggravated circumstances, which would later be clarified and added to the state statute sanctioning the death penalty in rape cases(Jackson v. State, 1969). 

At the time, Georgia was the only state that authorized capital punishment for the rape of an adult woman (D'Avella, 2006).  According to Wolfgang and Riedel, the judges who ultimately declared the death penalty for Jackson’s and a similar case unconstitutional, claimed that the “…death penalty constitutes cruel and unusual punishment because it is imposed infrequently and under no clear standards” (1975, p. 658, para 2).  Although the judges asserted that the death penalty was being imposed so infrequently and lacked clarity in its legal guidelines, the judges failed to clarify, at the time, what crimes met the constitutional rules for capital punishment (Wolfgang & Riedel, 1975).  Soon after Furman v. Georgia (1969), several states would revise statutes to reflect new laws regarding capital punishment.  According to Wolfgang and Riedel (1975), states that outline the death penalty under guided discretion statutes, shall impose capital punishment if there is at least one aggravating circumstance related to armed robbery, kidnapping, rape or murder.  Subsequently, in Gregg v. Georgia (1976), Georgia implemented a statute that outlined the penalty for crimes such as rape, murder and robbery (Wolfgang & Riedel, 1975).

According to Miller, based on the statute enacted in 1995, “The Louisiana State Legislature has determined that the rape of a child under twelve is a crime that is proportionate to the punishment of death” (1997 p. 194, para 2).  In Louisiana, the cases State v. Wilson (1996) and State v. Bethley (1996), which centered on child rape, exhibited aggravated circumstances which motivated legal parties to seek the death penalty (Miller, 1997).  In the case of Anthony Wilson, Wilson was indicted for the rape of a five-year-old girl (Miller, 1997).  Patrick Bethley, knowing he was HIV positive, was indicted for the repeated rape of three girls aged five, seven, and nine (Miller, 1997).  In addition to meeting the aggravated circumstances requirement, both cases also met the social morality views that accepted the death penalty in child rape cases (Miller, 1997).  In Wilson v. State (1996), the court also considered the damages to the victim and noted that the harms caused by the crime are sufficient to meet the aggravated circumstances requirements of capital punishment (Miller, 1997).         

Reviving the Death Penalty?

The debate over its constitutionality continues, and although two death penalty cases have upheld in the State of Louisiana, the state still has not executed one individual for a sex crime.  The case of Patrick Kennedy, a child rapist, in 2003, is the first capital punishment case to close under a death sentence since the death penalty was reinstated in 1976 (D'Avella, 2006).  Miller explains that prior to the case Furman v. Georgia (1972), in which the court declared the death penalty unconstitutional for the cases therein, “…sixteen states allowed capital punishment for crimes of rape” (1997, p. 197).  However, following the hearing Furman v. George (1972), only three states sanctioned the death penalty for rape crimes.  In 1995, the State of Louisiana declared the death penalty for child rape constitutional; though its efficacy and morality motivated academics to examine its usefulness in society.

The United States criminal justice strives to prevent crime, not just manage crime after the fact.  As a result, the criminal justice system focuses on deterrence as a method to prevent crime, especially when discretionary capabilities are not present. D’Avella (2006) explains that the standards that deem a punishment cruel and unusual are steadily evolving.  D’Avella relays the opinions of the court in Trop v. Dulles (1958) that the evolving standards principle of decency suggests a maturing society; and therefore, those evolving standards are used to measure and review the social views of constitutionality and capital punishment (2006).  In other words, changes in societal opinions, in which society views child rape as horrendous as murder, the court may likely view it similarly. 

In the end, although the majority of people disapproved of capital punishment, the general consensus revealed that most people criticized the death penalty for anything other than homicide (D'Avella, 2006).  D’Avella explains, only five states currently have statutes that authorize capital punishment for child rape; although, three of those states placed additional restrictions on its use in non-homicide cases such as injury and multiple offenses (2006).

Policy and Social Implications

In Wilson v. State (1996), the court considered the potential damages to a victim of child rape and as Miller explains, “society also suffers when a child is raped and capital punishment is ‘an expression of society’s moral outrage at particularly offensive conduct’ ” (1997, p. 198).  Glazer asserts that rape is often referred to the most horrific crime, even going so far as claiming that it is a “fate worse than death” (1997, p. 86).  The reference displays the irreparable harm rape can cause, including both physical and emotional trauma; effects that one must learn to cope with for the rest of [her] life (Glazer, 1997). 

Nonetheless, academics continue the debate the issue of capital punishment and child rape; thus, questioning the effects of sexual abuse on society, the standards in determining who should be eligible for death, and the potential excessive nature of the death penalty versus non-homicide cases (Glazer, 1997).  Glazer relays court opinions about the long-lasting psychological harm on child victims of sexual abuse, which can affect multiple generations into the future.  Additionally, the effects of rape on society are numerous, including fear of sexual offenses, interpersonal relationships and the potential for the cycle of violence as well as family disruption and how sexual abuse affects families (Glazer, 1997).  

Policymakers, academics, and social advocate groups, both for and against capital punishment, continue to debate the factors that determine who should be eligible for death in child rape cases. Glazer makes two important points in determining eligibility, the potential excessiveness in capital punishment for one who does not take another life and mental intent (1997).  First, in instances, for example, when two people commit a sexual crime against a child and one person inflicts more injury on the child than the other, what should be the determining factors in death penalty eligibility?  Such controversial issues create imbalance in the system and tends to encourage people to rely on the concept that it is better to let a guilty man go free than to condemn an innocent man to death.  As previously mentioned, Patrick Bethley raped three young girls knowing he was infected with the HIV virus, are his actions deserving of the death penalty?  Second, similarly, is Bethley’s mental intent to deliberately risk the lives of the young girls by potentially infecting them with HIV worthy of eligibility?  Additionally, comparing the acts of Bethley with that of Wilson, in which Wilson committed similar acts against a child, his intent was not to place his victim at the risk that which Bethley’s actions resulted.  Considering these two cases, Bethley and Wilson, theoretically, treatment for sexual offending may benefit Wilson more than Bethley; therefore, imposing the death penalty on an individual who may benefit from treatment is highly controversial.

Although social views on severe sex offenses, such as child rape, remain stable, in support of long-term incarceration with rehabilitative opportunities, Glazer explains that capital punishment is not excessive in cases of child rape (1997).  However,  recidivism rates among sex offenders is very low and by imposing the death penalty without first identifying the potential for rehabilitation is detrimental not only to the offender but also to the trust that society puts into the criminal justice system.  In general, society hopes that criminals would cease their delinquent behaviors and become productive citizens; without that opportunity, society will quickly learn to distrust the efficacy of the criminal justice system.  At last, the debate then becomes whether the threat of capital punishment for child rape is enough of a deterrent to prevent offenders from engaging in the crime.  Also, if social standards of decency support harsher punishments and the punishments do not violate the Eighth Amendment, for the benefit of society, why should legislation avoid the issue of the death penalty for child rapists?


            The ultimate goal of the United States criminal justice system is to deter criminal behaviors, and the threat of capital punishment is a controversial issue, especially in cases of child rape.  Advocates of the death penalty for child rapists claim that capital punishment is not excessive because of the atrocious effects of the crime upon the victim. However, the controversy in determining who should be eligible for death creates such havoc that most states avoid reviewing the issue.  In the end, child rapists continue to cause irreparable damage to victims because of the reduced threat of legal sanctions in America’s criminal justice system.




D'Avella, J. H. (2006, November). Death Row for Child Rape- Cruel and Unusual Punishment under the Roper-Atkins Evolving Standards of Decency Framework. Cornell Law Review, 92(1), 129-156.

Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).

Glazer, Y. (1997). Child Rapists Beware the Death Penalty and Louisian's Amended Aggravated Rape Statute. American Journal of Criminal Law, 25, 70-114.

Jackson v. State, 171 S.E.2d 501, 225 Ga. 790 (1969).

Miller, A. L. (1997). Constitutional Law: Can a convicted rapist be sentenced to death for raping a child under twelve years of age. Washburn Law Journal, 37, 187-202.

Wolfgang, M. E., & Riedel, M. (1975). Rape, race, and the death penalty in Georgia. American Journal of Orthopsychiatry, 4, 658-668.