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June 26, 2008

Sacre bleu!

Whilst idly munching the remains of a leftover croissant this morning, the Editorial Staff happened to glance into the bottom of our nearly empty coffee cup. Much to our surprise, there amongst the French pressed grounds swirling snarkily back up at us, we espied a new penumbral right!

But is this not the wonderful thing about a Living, Breathing Constitution? Contrary to the staid, stale prescriptions of heartless conservatives, a Living Text is free to change; free to respond to the real, human beings it is meant to serve. It protects the powerless, breathes life and compassion into the law:

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

It protects the downtrodden. This may be the defining difference between liberal and conservative views of law. A just process is not so important as ensuring equality of outcome. And of course, law should protect those who have no voice. And above all, the law must have empathy. Let's not forget that.

Except when it doesn't seem to do any of these things terribly well:

"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," Obama said at a news conference. "I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."

Oh dear, Senator. The majority (whose numbers Senator Obama, if he is elected, wishes to increase) beg to disagree with you. Their logic is compelling, n'est pas? They cite, as precedent, a previous case (Coker v. Georgia) involving a serial rapist (alert readers may care to note that in the jaded judicial judgment of Court sophisticates, a 16 year old rape victim was deemed both "adult" and "unharmed" by her assailant, prompting this furious dissent by Justice Rehnquist, well-known unfeeling conservative and enemy of women everywhere:

A rapist not only violates a victim's privacy and personal integrity, but inevitably causes serious psychological, as well as physical, harm in the process. The long-range effect upon the victim's life and health is likely to be irreparable; it is impossible to measure the harm which results. Volumes have been written by victims, physicians, and psychiatric specialists on the lasting injury suffered by rape victims. Rape is not a mere physical attack -- it is destructive of the human personality. The remainder of the victim's life may be gravely affected, and this, in turn, may have a serious detrimental effect upon her husband and any children she may have. I therefore wholly agree with MR. JUSTICE WHITE's conclusion as far as it goes -- that, "[s]hort of homicide, [rape] is the ultimate violation of self.'" Victims may recover from the physical damage of knife or bullet wounds, or a beating with fists or a club, but recovery from such a gross assault on the human personality is not healed by medicine or surgery. To speak blandly, as the plurality does, of rape victims who are "unharmed," or to classify the human outrage of rape, as does MR. JUSTICE POWELL, in terms of "excessively brutal," versus "moderately brutal," takes too little account of the profound suffering the crime imposes upon the victims and their loved ones.

But (yawn!) the suffering of rape victims is insignificant when balanced against the crushing weight of statistics:

In reaching our conclusion we find significant the number of executions that would be allowed under respondent’s approach. The crime of child rape, considering its reported incidents, occurs more often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005; this is almost twice the total incidents of intentional murder for victims of all ages (3,405) reported during the same period.

Hmmm. Rape is a serious crime. Especially so when a 300 pound man rapes an 8 year old child. And even more so when twice the number of child rapes occur, as first degree murders. So depressing.

But be that as it may, the Court cannot bear to think of all those dreary executions. Or perhaps it's the workload. And if that isn't enough, there's the question of evolving standards.

You see, ever since the Court struck down capital punishment statutes for rape in Coker, they've noticed a funny trend: states seem strangely reluctant to impose the death penalty for rape! This, mes amis, is what's called an evolving standard of decency, and it springs up like Venus from a clam shell, fully formed and (mirabile dictu!) without the slightest interference from the Berobed Nine Five!

Never mind that in his Coker dissent, Justice Rehnquist had already noted the Court's recent 8th Amendment jurisprudence was discouraging state legislatures from passing criminal statutes imposing the death sentence in such cases:

...it is myopic to base sweeping constitutional principles upon the narrow experience of the past five years. Considerable uncertainty was introduced into this area of the law by this Court's Furman decision. A large number of States found their death penalty statutes invalidated; legislatures were left in serious doubt by the expressions vacillating between discretionary and mandatory death penalties, as to whether this Court would sustain any statute imposing death as a criminal sanction. [Footnote 3/9] Failure of more States to enact statutes imposing death for rape of an adult woman may thus reflect hasty legislative compromise occasioned by time pressures following Furman, a desire to wait on the experience of those States which did enact such statutes, or simply an accurate forecast of today's holding

In any case, when considered in light of the experience since the turn of this century, where more than one-third of American jurisdictions have consistently provided the death penalty for rape, the plurality's focus on the experience of the immediate past must be viewed as truly disingenuous. Having in mind the swift changes in positions of some Members of this Court in the short span of five years, can it rationally be considered a relevant indicator of what our society deems "cruel and unusual" to look solely to what legislatures have refrained from doing under conditions of great uncertainty arising from our less than lucid holdings on the Eighth Amendment? Far more representative of societal mores of the 20th century is the accepted practice in a substantial number of jurisdictions preceding the Furman decision. "[The] problem . . . is the suddenness of the Court's perception of progress in the human attitude since decisions of only a short while ago." Furman v. Georgia,(BLACKMUN, J., dissenting).

... The Court has repeatedly pointed to the reserve strength of our federal system, which allows state legislatures, within broad limits, to experiment with laws, both criminal and civil, in the effort to achieve socially desirable results. Various provisions of the Constitution, including the Eighth Amendment and the Due Process Clause, of course, place substantive limitations on the type of experimentation a State may undertake. However, as the plurality admits, the crime of rape is second perhaps only to murder in its gravity. It follows then that Georgia did not approach such substantive constraints by enacting the statute here in question.

The beauty of being Justice Kennedy is that one can find all the necessary justification for one's judicial pronouncements at the bottom of a coffee cup, in the hallowed precincts of The Hague, or perhaps in the crumbs of yesterday's croissant.

If only we could believe the 8 year old victim in this case was "unharmed". But I suspect our standards of decency will have to evolve considerably before most of us will be able to face that conclusion without feeling heartily sick to our stomachs.

Posted by Cassandra at June 26, 2008 07:04 AM

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Comments

I WOULD like to point out, at least back in 1992, the UCMJ provided for the death penalty for rape (and it did NOT specify the age of the victim as a requirement). I personally have no problem with that.

Posted by: MikeD at June 26, 2008 09:49 AM

I agree with the outrage against the plurality opinion but I fear the law of unintended consequences. The death penalty for rape (of a child or an adult) may only result in all rapes becoming murders for there will be no incentive for the rapist to leave his victim alive to identify her assailent.

Posted by: Terentia at June 26, 2008 12:23 PM

Another interesting consequence: Someone falsely accused of rape will now -- potentially -- face the death penalty.

When the accuser is found to be lying, can she now be charged with attempted murder?

Posted by: BillT at June 26, 2008 12:31 PM

I fear the law of unintended consequences. The death penalty for rape (of a child or an adult) may only result in all rapes becoming murders for there will be no incentive for the rapist to leave his victim alive to identify her assailent.

Well, I'm not sure that the historical record bears this out. As Justice Rehnquist pointed out, prior to Furman, the death penalty was in fairly widespread use for rape cases:

...when considered in light of the experience since the turn of this century, where more than one-third of American jurisdictions have consistently provided the death penalty for rape, the plurality's focus on the experience of the immediate past must be viewed as truly disingenuous.

Posted by: Cass at June 26, 2008 12:36 PM

Given the fact that a great deal of child rapists already kill their victims, I don't really see the possibility of a death sentance really entering into it. I am reminded of that scum Couey who buried that little girl alive in Florida then tried to hide out here in Augusta where he was caught. There was no death penalty for child rape in Florida, so why did he kill her? Because he was afraid of getting caught. The death penalty wasn't on the table till he DID kill her, so I don't buy that it would increase the murder rate.

Posted by: MikeD at June 26, 2008 12:38 PM

That's the kind of question that can only be answered with data, Terentia.

And the interesting thing here is this: contrary to a lot of the hype about rape, adult women (statistically speaking) have little to fear from adult men. It is, on the contrary, young girls who have a great deal to fear, and statistically speaking even then rape is a crime of opportunity.

IOW, murder is not so likely to happen when the rapist is a father, an uncle, a brother, or theri mother's boyfriend or stepfather. These men count on their crimes never being found out, because many, many of these girls are so afraid and ashamed that they never tell anyone, and even more horrifying is the fact that their own mothers have at times been complicit in covering up the crime.

Posted by: Cass at June 26, 2008 12:39 PM

Most rape victims are under the age of 16. That's a chilling fact I doubt most Americans are aware of.

Posted by: Cass at June 26, 2008 12:40 PM

The Thunder Run has linked to this post in the - Web Reconnaissance for 06/26/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.

Posted by: David M at June 26, 2008 12:50 PM

"The beauty of being Justice Kennedy is that one can find all the necessary justification for one's judicial pronouncements at the bottom of a coffee cup..."

And here I was suffering under the mistaken notion that tea leaves were used for such things.

But seriously...I used to be romantically involved with a troubled young woman who had been sexually abused by her family and their friends; she never did resolve her mental health and self esteem problems stemming from that, and eventually took her own life.

I like to hope there are degrees in Hell sufficient to avenge such victims. If it seems as though I feel very strongly about this, well, that's rather an understatement...

Posted by: camojack at June 27, 2008 01:40 AM

And here I was suffering under the mistaken notion that tea leaves were used for such things.

Personally, I tend to think they take women and children, take a ritual sacrificial knife, gut and eviscerate the sacrifice from chin to crotch, and then read the entrails for necessary legal justifications.

Are you trying to tell me that they don't do these things?

Personally, I think it'd be a very entertaining program if you could execute rapists by putting them in a cage with citizens and non-criminals that know how to use the tools of violence. There's nothing like seeing a predator get slaughtered by a real predator to keep the blood up.

When a lion realizes he's just a jackal that has encroached upon the cape buffalo, it's a nice piece of entertainment if not satisfaction.

An adult man has a lot of power over little boys and girls. It'd be interesting to see how they handle a bare handed duel to the death against someone with just as much power over them.

The Great Circle of Justice, in my view, should be exercised if it is to remain in effect.

Posted by: Ymarsakar at June 27, 2008 12:09 PM

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