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June 25, 2008

The first thing we do, let's kill all the rapists

As far as I know, Barack Obama doesn't generally support the death penalty for rape. So, why does he support capital punishment for child rapists, specifically?

Democrat Barack Obama says he disagrees with the Supreme Court's decision outlawing executions of people convicted of raping a child.

Obama told reporters Wednesday that he thinks the rape of a child, ages six or eight, is a heinous crime. He said if a state makes a decision, then the death penalty is potentially applicable. [AP News]

Rape is a heinous crime. The United Nations recently acknowledged rape as a weapon of war.

If we're going to have a death penalty, and if the death penalty is reserved for the most heinous crimes, then rape should be punishable by death.

Does Obama think that the rapists who sodomized prisoners at Abu Ghraib with chemical lights should be put to death? Given his views on child rape, I should hope so. Consistency requires him to call for the executions of the American soldiers who committed these crimes. If he's not serious about putting all rapists to death, he is trivializing rape by calling for the death penalty only for those who rape children.

If you're going to support the death penalty for child rape alone, you need to explain why child rapes are so morally special compared to the rapes of adult human beings.

The only morally consistent "law and order" position for Obama would be to assert that rape should be punishable by death, across the  board.

Wouldn't that make the wingnuts' heads explode? If violent rape were punishable by death, then date rape without lethal force should be at least comparable to bank robbery.

Why is child rape morally special compared to woman rape, or man rape?

If he thinks its the rape of the defenseless that deserves special punishment, Obama should call for the death penalty for the American soldiers and contractors who participated in the rapes of Abu Ghraib detainees, because those men were as helpless as free seven-year-old children.

Let's have Democrats ask John McCain whether he favors the death penalty for all violent rapists. You can bet the Republicans will choke before the Democrats on this one.

Now, I'm a death penalty abolitionist across the board, but I figure if we're going to have the death penalty at all, violent rapists are as deserving as murderers. Why let Republicans off the hook on this one?

[HT: Digby.]


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Easy sell. Many of the adult cases have some contributory aspect. Drug Dealer LaShawn kills Drug Dealer Julio. I worked with a man who killed his wife and the joke that came out was which one was going to die first. He had numerous scars from her actions.

With kids, we assume that the actor was totally at fault. We therefore assign all punishment to them. Not to forget that Obama is an actual father and might truly want to end a malefactor.

I work with kids and the longer I do, the more likely I am to have little remorse in executing those that harm children.

Lindsay, are you saying that Lee didn't present any argument?

So far, I haven't heard any argument about why child rape should be a special category that's singled out for a dramatically harsher punishment than adult rape.

I think you've heard a number of reasons. They're just reasons you disagree with. You seem to be arguing two things: (1) Rape is rape, and so no rapes should be distinguished and (2) the adult/child distinction is unjustified. If you really believe in (1), there's no reason to argue about (2), since then no legal distinctions can be made convincing. I was addressing (1) before, but let me assume that you don't really believe in (1) and address (2).

I see a number of reasons to treat child rape differently than adult rape. There are a number of distinctions between the two that I would expect to occur, on average:

A) In the vast majority of child rapes, the adult has some custodial role over the child. This makes our societal level of moral outrage greater and

B) Makes us suspect that, in all likelihood, there were a large number of rapes committed over a long period of time, and that the state is going to be unable to figure out and prosecute them all separately and

C) The aforementioned custodial role means that it's going to be even more difficult for charges to be brought, and to get the victim to testify, and so a given level of deterrence requires greater penalties at the end of the process.

D) A further difficulty with charges being brought is that many children may not even realize that a crime has been committed, or have any idea of the legal recourses available to them. So again, equal deterrence requires greater penalties.

E) Because children are unable to protect themselves, it makes sense for the law to offer them a greater level of protection than to adults.

F) Because by our standards, a child is unable to meaningfully consent to sex, when an adult has sex with a someone he/she knows to be a child, we immediately know without any doubt (which is stronger than "without a reasonable doubt"), by definition, that the child did not consent, and the adult knows that the child did not. With adult-adult rape, even if these issues are decided beyond a "reasonable doubt," there still may be some residual doubt about these issues.

I think, in total, these reasons make a pretty strong case for distinguishing child rape from adult rape. Some are stronger than others (I'll admit that (F) is a fairly weak point), but (E) alone seems strong enough to justify the distinction.

Now you can (and have) pointed out that the justifications above are only justifications on average, and so in specific cases, the child/adult distinction will point in the wrong direction. A 12-year old who knows karate may be be able to physically protect themselves better than an adult paralyzed from the neck down, and so (D) fails. A father who rapes his daughter once and only once fails to meet (B). A caregiver-invalid or guard-prisoner relationship may have a custodial role equivalent to that in (A). In all these cases, the child/adult distinction points in the wrong direction. That's unfortunate, but it's true of all the distinctions in our legal system. Arguing that motivations for distinctions may fail in specific cases is not an argument against the end distinction. Every distinction is based on ideas about what distinctions are moral and/or effective, on average. In practice, a specific battery case may actually strike me as much more vile than a specific murder case. To write legislation that would correctly and precisely distinguish all individual cases would be impossible to write, and even if possible, would place impossible burdens on the judicial system in attempting to prove beyond a reasonable doublt the fine distinctions necessary to determine each case.

LB, your arguments are separate from arguments about the death penalty. You're, in essence, against the possibility of making principled legal distinctions within a specific class of crimes.

Whew, long post.

I'm hearing arguments about why child rape is bad, but people aren't explaining why it should be placed in a special legal category that is always categorically more severely punished than adult rape.

I agree that there rapes often have aggravating features, however, that would argue for putting all rapes with similar aggravating features in a special category, not just child rapes. So, if a custodian rapes a charge, that's an aggravating factor--whether that custodian is a parent or a caregiver or a police officer and whether the charge is a dependent adult or a child.

I'm very disturbed by the suggestion that child rape deserves to be punished more severely because kids can be assumed to be innocent, whereas adult victims are always at least possibly contributors to their own rape.

I can think of one argument for a difference: child rape has all the force and sexual violation of rape, *plus* the fact that the child isn't even a sexual being yet. For the adult, it's "I don't want to have sex now/with you", for the child it's "what the hell is sex?" Sex is a proper function for the adult body, which the adult would like to control; it's not a proper function for the child, so the violation is that much greater. So a difference in punishment is saying "if you're going to rape, at least rape someone whose body and mind aren't completely unprepared for it." And maybe there's even more physical damage, from smaller holes/cavities? I don't know how those body parts develop.

Countering all that, for death penalty purposes, is the fact that sex crimes on children is a subject particularly prone to error and community hysteria. Plus what people mentioned here and elsewhere (one a molestation victim himself) that a prospect of "I killed mommy" is even less likely to get kids to testify than "I sent mommy to jail". (The victim said he'd been molested by his mother, thus my example.)

Kids are sexual beings. Maybe it's worse for a victim to be raped if they don't know what sex is, but I'm not sure that's true across the board. In fact, it might even be worse to be raped if you grasp the significance of what's happening to you. The sexual violation adds another level of shame and horror, over and above the trauma of the physical assault. It probably varies by individual and the circumstances of the crime. I wouldn't want the law to presuppose an answer for all victims.

There's something extra tragic about having one's first experience with sex be non-consensual. But we shouldn't set aside extra harsh penalties for rapists who prey on adult virgins compared to more sexually experienced victims. That's the kind of double standard that has infected our rape laws for far too long.

I'm not minimizing the horror of child rape, I'm just saying that any violent rape is equally bad. Imagine you're a full-grown adult who is kidnapped and sexually tortured, is that morally less serious than doing the exact same thing to a child?

I agree that there rapes often have aggravating features, however, that would argue for putting all rapes with similar aggravating features in a special category, not just child rapes. So, if a custodian rapes a charge, that's an aggravating factor--whether that custodian is a parent or a caregiver or a police officer and whether the charge is a dependent adult or a child.

What about your previous comment "rape is rape," apparently as an argument that all rapes should be punished identically? Is it that you didn't really mean that, or that all these people, none of whom is you believe is presenting arguments about why child rape should be punished differently, has convinced you that your original claim that "rape is rape" was wrong?

And I ask again: don't you think Lee made an argument about why the rape of a child could be considered a more heinous crime than the rape of an adult, and therefore might merit the death penalty even in the absence of the death penalty for other instances of rape?

Finally your claim that the question is "why [child rape] should be placed in a special legal category that is always categorically more severely punished than adult rape" mist-states the issue treated by the court. The law did not require that all cases of child rape be punished with the death penalty; it made that an option in cases of child rape while not allowing that option for adult rape.


One problem with a discussion like this is that an attempt to parse and analyze the issues can come across as unfeeling and insensitive concerning some horrible crimes. So I'll do the best I can to contribute to an understanding for all of us.

>>> So far, I haven't heard any argument about why child rape should be a special category that's singled out for a dramatically harsher punishment than adult rape. <<<

Arson committed at night carries harsher penalties than arson committed during daylight. Regarding the act of arson, itself, they are exactly the same crimes. The reasoning for the differential punishment is that arson at night has a greater potential for loss of life and property than arson during the day. For example, arson at night is more likely to go undetected for a longer period of time.

I agree with you that the death penalty for rape makes no sense when compared to the final irrevocable consequences for a capital crime. I don't think you are arguing for a comparable death penalty for rape of an adult if rape of a child is punishable by death. You are arguing against a diminishing of the horror of adult rape in the eyes of the public and in our laws. At the risk of overstating the issue, we don't want to say to adult rape victims, "You can handle it, but the children can't."

The unfortunate case of Polly Klaas could be instructive. A sociopath broke into a house at night and abducted Polly from her bed. She was raped and then murdered. Parsing out the murder, this abduction and rape is hardly distinguishable from the abduction and rape of an adult. If this is your view, then I would agree with you. However, most child rape is done in the context of ongoing sexual and physical abuse by pedophiles who are likely to be family members or known to the child victim. It is a very different crime, and I want to emphasize the word DIFFERENT. This does not diminish the horror for an adult victim, nor should it mitigate the severity of punishment for raping an adult.

The consequences for a child victim can be profound and deeply disturbing for a lifetime, even when the victim is at a very young age [not that the same couldn't be true for an adult victim.] We used to think that infants and toddlers did not have the psychological development necessary to register the damage and the evil perpetrated on them. It was as if they had a fortuitous innocence that could not decipher the evil that adults can do. That turns out not to be the case and we have some idea of the neurological processes involved.

As to the death penalty for a child rapist, I have discussed this above. My focus was on the consequences to the child and adult survivor of child sexual abuse if parents and siblings are routinely executed. It's an untenable paradox for sure.


>>> I'm very disturbed by the suggestion that child rape deserves to be punished more severely because kids can be assumed to be innocent, whereas adult victims are always at least possibly contributors to their own rape. <<<

I'm very disturbed by this as well. It was suggested several times in this discussion. Nothing could be further from the truth.

I can't wait to hear the right cry about their need to kill accused date rapists vigilante style!


No? Why not?

Lee's claim is that child rape is morally worse because children are more malleable. I'm not entirely sure what that means, or what moral conclusion we should draw from it. It's not a fully developed argument. He's just saying that children's brains are different from adults, which somehow makes it morally worse to rape them. If he wants to argue that children suffer greater harm as a result of rape than adults do, that's an empirical case he's going to have to bolster with evidence.

I'm saying that rape is rape, irrespective of the age of the victim. I'm not saying that every instance of rape should be punished identically. There are aggravating factors, as in any crime. For example, I agree that a physically brutal rape should be punished even more severely than a less violent assault. Rape in custody should be punished extra severely, whether the custodian is a parent, a caregiver, a jailer, a superior officer, or what have you.

I don't see why there should be the option of death for someone who rapes a 6- year-old child but not her 96-year-old grandmother. It also doesn't make sense to me that there should be the option to punish child rape more severely than second-degree murder or non-sexual torture.

I don't think Lee made a specific claim about the morality of various types of rape. He/she speculated that one point of difference that might be recognized by establishing variant penalties is the effect of a traumatic act on a child versus an adult.

He/she acknowledged he/she could not make an empirical case, but put forward a claim that strikes me as reasonable: Children, particularly when they are very young, unquestionably have much higher neuroplasticity than adults. Their brains are in a much greater state of flux than the average adult brain, even though it's now acknowledged that adult brains also exhibit substantial plasticity via neurogenesis and the subsequent creation of new synaptic connections. This greater degree of neuroplasticity is probably why, on balance, children are more adept than adults at learning new skills, such as language for instance.

Are you challenging this particular claim, or just questioning its relevance to the issue at hand?

Finally, you now revise your original claim to say that "rape is rape, irrespective of the age of the victim." But, as several posters have already pointed out, that is not currently the case, legally, in the US. If a 30 year old has sex with a 30 year old, the act is not rape absent other salient factors. If a 30 year old has sex with a 10 year old, it is rape, regardless of any other factors. It seems inconsistent to claim that age can be a factor in determining whether an act was rape, but it cannot be a factor in determining the appropriate punishment for the act. In fact, it's quite common in statutory rape laws to have one level of punishment for an adult who has sex with a 16-year-old and another level for one who has sex with a 9-year-old. Do you oppose such distinctions in sentencing based on the age of the victim?

On neuroplasticity in children:

The role of "neuroplasticity" as it may bear on a young child's response and accommodation to sexual trauma, as discussed here, is highly speculative. I don't think there are any applicable generalizations that can be offered for the topic under discussion. My suggestion is find other factors that may support different arguments and stay away from the concept of "neuroplasticity."

Norman Costa, is your experience that there has been research into neuroplasticity and childhood trauma but results are not definitive or that this area has not been researched?

The problem with Obama's position is that it provides a rationale for expanding the death penalty to any offense the State deems "heinous."

What's next, the death penalty for drug dealing because to the awful consequences of addiction? What about the death penalty for prostitution where there is an AIDs infection? Or maybe its heinous enough that food manufacturers makers hype unnutritious meals for kids which will cause them severe illness later in life. What about the heinous consequences of peddling cigarettes?

I am a death penalty opponent, pure and simple. It's a penalty that can be undone, and it cheapens the value of life. Obama once believed this, but has moved further to the right on the death penalty, and now he appears to have gone further to the right on this issue than Bill Clinton (though Clinton actually had carried out executions as governor, making it clear he was willing to kill for political advantage).

Its unfortunate that Obama is willing to play games with an issue like this.

I'm floored that someone as thoughful and caring as Lindsay is still debating this point.

This thread has been about legal and moral distinctions. So put aside the bullshit arguments about capital punishment and gun-or-no-gun scenarios and "resiliency" and "malleability," and the sexuality of children. They are just evasions of the question.

Child-rape is morally and legally distinct because children are more vulnerable. In fact, we can remove "child" from the equation, and make it simply a matter of vulnerability.

Will you deny that people who choose to brutalize those LEAST able to defend themselves and LEAST able to understand their assault are a worse sort of predator than ones who attempt to victimize people who stand a better chance of defending themselves?

Lindsay, your righteous furor over adult-rape has backed you into a corner where you're afraid that making a child-adult distinction is somehow "making excuses" or "letting off the hook" adult-rapists. And it's just not so.

Imagine that it was your responsibility to choose the most just punishment for the rape of an adult, and that this most just punishment would become the mandatory sentence. You would be completely justified in making the rape sentence as harsh as your conscience would allow. Now imagine that it subsequently became your responsibilty to choose the punishment for rapists who deliberately chose the MOST vulnerable as their victim. You would be completely justified in in making the sentence for this class of rapist even harsher. If you would be unable to hand down the higher degree of punishment, it is not because the two crimes are equivalent. It is because of the limit (or strength) of your own conscience. It is because a harsher punishment would include the torture and/or death of the worse criminal, and you see such a punishment as a crime in itself.

You can choose to LEGALLY treat the two classes of crime eqivalently, while acknowledging the moral distinction between child- vs. adult-rape. It is not that the crimes are equivalent (they're not- one is much worse) but rather that you choose to enforce a system of law that has (admirable) limits, and will not punish any being past a certain level.

Neuroplasticity irrelevant to the issue at hand, absent some further argument.

When it comes to the death penalty for rape, we're comparing cases where the victim said "no" and the rapist assaulted them anyway. We're asking whether the moral value of an adult's "no" is comparable to the moral value of a child's "no"--I'm saying that the two "nos" are morally equivalent. It's just as wrong to disregard a woman's no as it is to disregard a child's no. Statutory rape has to do with cases where a victim said "yes" but their consent is presumed to count for less because they aren't fully developed agents. It's perfectly coherent to say take age into account when judging capacity for consent without saying that sex without consent is equally wrong regardless of the age of the victim.

At least in New York law as I understand it, statutory rape is not restricted to cases where the victim said yes--the law presumes that the victim is incapable of consent and therefore whether they said yes or no is not an issue in the case. I'm pretty sure that a case or forcible rape of a 12-year-old and a case of sex between as 12-year-old and adult where no force is alleged are tried under the same statute.

This sort of faux logic is just pathetic - you might as well argue that murder is just violent crime, so all crimes of violence deserve the death penalty if any does.

This sort of artless hypocrisy is beneath you, and beneath the normal standard of your writing and judgement.

What makes child-rape 'morally special', to use your infelicitous phrase, is obviously that it is the rape of innocence, not just of defencelessness.

Not that I support capital punishment for this or any other crime - but that's on practical grounds, not because I don't think there's any moral justice to execution.

Actually, "rape is rape, period" is not untrue. It is merely without meaning.

What is true is that any and all rape is horrible and unacceptable. Some rapes are WORSE than horrible and deserve more severe punishment (barring torture and execution, if that is the line you choose to draw)

The "no" of a woman is NOT morally equivalent to the "no" of a child. Both are morally SUFFICIENT but they are not morally equivalent. [How dare you suggest a child has the experience and knowledge to fully comprehend and formulate a "no!"]

So, adult rape victims are less "innocent" than child rape victims? That's disgusting. It's just as wrong to rape a grown woman as it is to rape a child. It's just incoherent to say otherwise. The question is whether child rape so dramatically worse than adult rape that it deserves a whole separate legal category of punishment. As bad as child rapes are, I don't see anything that sets them apart from the worst adult rapes. The Supreme Court ruled a long time ago that the death penalty for non-lethal rape was cruel and unusual, the question this time was whether child rape should be considered an entirely different category.

It's easy to get worked up over victims who are cute and conspicuously defenseless. Likewise, it's easier to get worked up over cruelty to a cute animal than an ugly one. But just because certain kinds of victims tug more at our heart strings doesn't mean that their suffering is in a categorically different moral category than that of less emotionally compelling victims.

My point is that when it comes to sex against a person's will, it's just as wrong to touch a grown woman who says "no" as it is to touch a child who says "no. That's the only moral equivalence I'm alluding to.

Nobody doubts that a child can meaningfully refuse sex with an adult. There's good reason to doubt that children have the capacity to meaningfully consent to sex with an adult, hence statutory rape protections. The capacity to refuse and th capacity to consent aren't necessarily symmetrical.

Good philosophical question, Lindsay. In the abstract: "Can one action be worse than another because of who the victim is, even if the two actions do the same amount of harm?"

Just to take a bit of the emotional overload associated with rape and capital punishment, consider a different case.

Suppose my evil hobby is walking up to random strangers and slapping them in the face, just hard enough to hurt. Is it any worse if I do this to a child, than if I do this to an adult?

Lets stipulate that I don't cause any more pain to a child than to an adult, and that the associated emotional suffering is no worse either. (The adult has a bad day but gets over it, as does the child.)

From a purely utilitarian perspective, one action is no worse than the other. And I'm a utilitarian, so I think that's right. (IIRC, you espoused utilitarianism at some point, so perhaps you're agreeing here.)

But, I think there's something to the intuition that a habitual child-slapper is a worse person than a habitual adult-slapper. Utilitarianism has nothing to say about whether one person is worse than another; it's only a theory of what makes an action better or worse than another.

I'm afraid I don't have a succinct theory of what makes one person a better person than another. All I have is a muddle of conflicting intuitions.

Furthermore, utilitarianism is not a theory of desert. One might think that if action A is no worse than action B, action A is no more deserving of punishment than action B. Maybe, but that's an extension of utilitarianism, not utilitarianism itself.

(A rather implausible extension, I might add. Someone who kills two strangers to save a loved one is less deserving of punishment than someone who kills one stranger just for fun, although the net badness of the action is the same: two dead, one living. Motives play heavily into whether an action is deserving of punishment, as well as evaluating people as good or bad, but they play no role in the utilitarian calculus.)

Of course, if utilitarianism is correct, whether someone deserves a particular punishment is completely irrelevant to whether the person should be punished. That's a conclusion that doesn't sit well with many, but it's a bullet I'm willing to bite.

Lindsay, according to the New York State Penal Code Article 130, an adult who has sex with a 15-year-old who agrees to the act is guilty of a more serious crime than an adult who has sex with another adult without their consent.

Lindsay, your it's your rebuttals which are getting more and more disgusting.

To suggest that our defense of children is merely because we are overwhelmed by "cuteness" is wholly reprehensible.

What difference does it make to you? As long as the punishment is just, what difference does it make to you if some punishments are more severe? What difference does it make to you if the rape of a child, or a ninety-six year old grandmother, or a mentally-retarded twenty-seven year old parapalegic, is put in a seperate legal category from your own rape. As long as the punishment for your own rape is just, why can you not concede that there is a difference between bad and worse?

You don't want torture and executions? Fine. But don't pretend that all rapes are equivalent, and that some rapes are not more deserving of torture and execution [even if , for the sake of your own soul and society's you will not allow such punishments.]

And it's just slimy of you to try and adhere to an idea of moral equivalency and then slip something like this in:

"As bad as child rapes are, I don't see anything that sets them apart from the worst adult rapes."

As if all child-rapes are just uniformly bad, but adult-rapes can vary in degree from bad to worst.

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