The death penalty for rape of a child.

Five states have authorized the death penalty for the rape of a child:

In 1977, the Supreme Court ruled that the death penalty could not be imposed for the rape of an adult woman. The penalty was, the court ruled, disproportionate to the crime and therefore forbidden as cruel and unusual punishment under the Eighth Amendment.

"Life is over for the victim of the murderer," Justice Byron R. White wrote for the majority. "For the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair."

The defendant in that case, Ehrlich Coker, escaped from a state prison in Georgia where he was serving time for a murder and two rapes. He soon raped another woman in front of her husband. He was sentenced to death for that last crime.

Dissenting from the majority decision to overturn Mr. Coker's death sentence, Chief Justice Warren E. Burger wrote that the ruling "prevents the state from imposing any effective punishment upon Coker for his latest rape."

... In recent decisions barring the execution of juvenile offenders and the mentally retarded, the court took careful stock of state laws and trends in state legislatures to evaluate whether a societal consensus existed to permit or bar capital punishment in given classes of cases.

Trey Walker, chief executive assistant to Attorney General Henry McMaster of South Carolina, said in an interview yesterday that "there will be more and more" laws making sex crimes against children capital offenses.

"This is something the Supreme Court takes into account," Mr. Walker said. "There is not much doubt that this law would be upheld and found constitutional."

In Coker, Georgia was the only state with the death penalty for the rape of an adult. The case largely preceded the very intense political activity aimed at making people take rape much more seriously than they had before. Here's Justice White's description of the rape:

Coker then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him. Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed.

Mrs. Carver was unharmed. How many law professors have read that line sarcastically in class? I know I have. I can't imagine White writing like that 10 years later, after all the discussion of rape that took place in that time. Brownmiller's "Against Our Will" was published in 1975 and the author was one of a collection of women who were named Time magazine's "Persons of the Year" in 1975, two years before Coker, so I still have to say that the Court, at the very least, had a tin ear. Even when you're striking down the death penalty, the convention is to show great respect for the suffering of the victim. But Mrs. Carver was unharmed. Really, that belongs on the list of worst sentences ever written by a Supreme Court Justice.

So Georgia's anomalous law made it easier to strike down the death penalty for rape of an adult. What happens now as more and more states adopt the death penalty for the rape of a child? The public understanding of the harm to children has grown over the years, as has the conviction that persons who commit this crime are hopeless and even inhuman. You may say that you think the Constitution should not be interpreted to take account of the current understanding of what is "cruel and unusual," but the Justices who agree with you can be counted on to accept what the states are doing now. What should the Justices who go by "the evolving standards of decency that mark the progress of a maturing society" say about the death penalty for child rape?

Consider the unintended consequence: authorizing the death penalty will stimulate sympathy for child rapists. Death penalty opponents will be motivated to paint a strong picture of the rapist as a pitiable creature with a terrible mental health problem.