When Criminals Deserve To Die II – Serial Rape?

Commenter Brooke brings up a great example that I think might serve to better define what I see as the limitations to the death penalty.

The death penalty for serial rapists would have the same benefits you cited for mass murderers: eliminating role models, deterring potential serial offenders, bringing closure to victims and women who fear they could be targeted next.

Brooke in the comments

My first contention would be that using the death penalty on a rapist is unconstitutional.  The Supreme Court held, “Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use… for crimes that take the life of a victim.” Kennedy v. Louisiana (2008). The decision extended upon the precedent in Roper barring the penalty for adult rape to the rape of children as well.

So that’s what the law is. Do I think that’s what the law should be?  Reluctantly, yes.

Arguments that rape is equivalent to murder in that it metaphorically kills the psyche of the victim, leaving a shell or an altered life in its wake, are very convincing.  Never having been the victim of a rape, I can’t speak to the accuracy of this notion.  I am willing to believe women and men who have been raped and feel exactly this way because the phenomenon is extremely common. Furthermore, Brooke adds:

[E]very time a woman walks alone to her car in a parking garage, down a dark street by herself, through a bad neighborhood, and dozens of other situations, the threat of rape is right there, and very real — in fact, between 1 in 12 to 1 in 4 rapes occurs in parking garages. This isn’t a fear that ever goes away. Women must go their entire lives knowing that they have a 25% chance of being raped or sexually assaulted.

more from Brooke

I think this is why rape may be different from murder in nearly every circumstance it has occurred. In my previous post I argued that the reason we can justify the death penalty for mass murders like the Oklahoma City bombings is that McVeigh had “created a specific and public anxiety and fear… flowing from [McVeigh] himself.”

If one man rapes a half-dozen women, he is contributing to the general fear of rape in the statistical sense, but he is not designing to create panic and paranoia in such a way that it undermines order.  The order is already undermined – women are already afraid to go outdoors at night.  Thus his crime isn’t unique enough to justify the most severe punishment available.  Keep in mind I’m not trying to downplay the significance of rape, only explaining why I think there is a difference of degree here and the extremely narrow application under which a death sentence is justified.

To be fair, I can imagine a scenario in which a serial rapist leaves behind ‘calling cards’ (I don’t want to go into grotesque details on this blog so leave those up to your imagination.  Or don’t.) in such a way that women in his community specifically fear rape by him, or rapes in the same manner as done by him. One example would be if they were all done in public restrooms on subways, this would create the specific fear of using the restroom near a subway, rather than contribute to the general fear of the act of rape itself late at night.

Rape is gruesome and deserves harsh punishment (automatic life sentence would be appropriate), but I don’t think killing the serial rapist, even if it did create public fear and paranoia in a particularly heinous way, is proportional to his crimes. The woman is not actually killed – it may take decades and she still may never be the same, but she can still potentially recover through therapy.  In the same way, we wouldn’t think the death penalty appropriate for a person who severely disfigures his victims without killing them.  Their lives are dramatically altered, but they still have lives.  The appropriate punishment would be to dramatically alter the rapist’s life by forcing him to live out his years in a maximum security penitentiary – but still allow him to keep his own life.  Until he steps over the line of intensely deliberated, indiscriminate murder in a way that directly constitutes an offense on the public, the people have no right to bring about his premature end through the machinations of government.

Finally, I essentially agree with the logic of Justice Kennedy’s opinion in Kennedy. If we allow the death penalty for rapes, we would open the philosophical floodgates to any sort of crime done on a mass scale in a heinous way.  Serial arsons, assaults, and torture without killing would not be a stretch from serial rape.  This would weaken the symbolic nature of the extremely limited application of the sentence I would advocate, risk punishing criminals disproportionately to their deeds, and open the door for mistaken executions.