Posted by Eugene Volokh:
Justice Ginsburg and the Death Penalty for Rape:
http://volokh.com/archives/archive_2007_12_30-2008_01_05.shtml#1199560544
A [1]comment on the thread about the new Supreme Court
death-penalty-for-child-rape case wrote, "I think [Justice Ginsburg]
may be disturbed by some of the statements in the Coker decision about
rape not having any long term harm on women. As a woman, I am sure she
was not thrilled with 9 men deciding that." I should note that
[2]Coker says,
Ruth Bader Ginsburg, Melvin L. Wulf, Marjorie Mazen Smith, and
Nancy Stearns filed a brief for the American Civil Liberties Union
et al. as amici curiae urging reversal [of the death sentence].
The brief was filed on behalf of the American Civil Liberties Union,
the Center for Constitutional Rights, the National Organization for
Women Legal Defense and Education Fund, the Women's Law Project, the
Center for Women Policy Studies, the Women's Legal Defense Fund, and
Equal Rights Advocates, Inc.; here's the summary of the argument from
that brief:
The historical origin of the death penalty for rape lies in the
long standing view of rape as a crime of property where the
aggrieved was not the woman but her husband or father. In the
Southern states this view coalesced with a tradition which valued
white women according to their purity and chastity and assigned
them exclusively to white men.
As a result, a double standard of justice developed for weighing
and punishing rape by white and black men. This double standard of
justice was reflected in Georgia's penalty structure for rape
which, until the abolition of slavery, reserved the death penalty
exclusively for black men. Even since 1861, the death sentence has
rarely been imposed on white men.
The history of rape as a crime against man's property, not against
the woman herself, sheds light on the ambivalent treatment of the
victim who is viewed not simply as the virgin whose violation
inspires outrage but also as the temptress who threatens every man
with conviction. This latter perception, as well as the severe
penalties attached to a rape conviction, has led to special rules
requiring corroboration of the victim's testimony, permitting
evidence of the woman's prior sexual conduct or reputation for
chastity and authorizing cautionary jury instructions which impugn
the victim's credibility.
The death penalty for rape does not meet �contemporary standards
regarding the infliction of punishment,� Woodson v. North Carolina,
96 S. Ct. 2978 (1976), and hence runs afoul of the Eighth
Amendment. Jury repudiation of the penalty is apparent. Moreover,
overly severe penalties for rape, epitomized by the death penalty,
are counterproductive to the goal of affording maximum legal
protection to victims of rape since they have led to a conviction
rate for rape which is lower than that for any other major violent
crime.
Amici, interested in effective enforcement of laws against rape,
urge that the death penalty for rape be invalidated because it
stems from archaic notions which demean women and gross racial
injustice and does not serve the goal of convicting and subjecting
to criminal sanctions those who are in fact guilty of rape.
Now maybe there are parts of the language in Coker that Justice
Ginsburg disapproves of -- though I certainly wouldn't say that Coker
describes rape as "not having any long term harm on women," especially
given this passage from the Coker plurality:
We do not discount the seriousness of rape as a crime. It is highly
reprehensible, both in a moral sense and in its almost total
contempt for the personal integrity and autonomy of the female
victim and for the latter's privilege of choosing those with whom
intimate relationships are to be established. Short of homicide, it
is the "ultimate violation of self." It is also a violent crime
because it normally involves force, or the threat of force or
intimidation, to overcome the will and the capacity of the victim
to resist. Rape is very often accompanied by physical injury to the
female and can also inflict mental and psychological damage.
Because it undermines the community's sense of security, there is
public injury as well.
Rape is without doubt deserving of serious punishment; but in terms
of moral depravity and of the injury to the person and to the
public, it does not compare with murder, which does involve the
unjustified taking of human life. Although it may be accompanied by
another crime, rape by definition does not include the death of or
even the serious injury to another person. The murderer kills; the
rapist, if no more than that, does not. Life is over for the victim
of the murderer; 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. We have the abiding conviction that the death penalty,
which "is unique in its severity and irrevocability," is an
excessive penalty for the rapist who, as such, does not take human
life.
Likewise, it's possible that Justice Ginsburg has changed her views in
the last 30 years. Still, I wouldn't infer much from Justice
Ginsburg's sex or feminism about her views on the death penalty for
rape.
References
1. http://volokh.com/posts/1199487328.shtml#310318
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=433&invol=584
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
