Death Penalty For Child Rape: Rhetorical Games In Supreme Court Briefs

One ongoing issue in the debates over child sexual abuse is the tendency of certain advocates to play games with statistics.  In  Making the Case for Megan's Law: A Study in Legislative Rhetoric, I noted that advocates for sex offender notification often used data about widespread levels of child abuse and neglect to prove the existence of a child abduction crisis.  The actual number of stranger abductions - the sorts of cases Megan's Law is designed to combat - is quite small and advocates apparently felt they needed to puff up the problem to promote new laws.

Now it seems that the state amici in Kennedy v. Louisiana, the Supreme Court's upcoming child-rape death penalty case, are playing the same game.  In their brief, Attorneys General from Texas, Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina, and Washington argue that child rape has a devastating effect on society.  The crime is devastating for kids - no doubt.  But the following paragraph, which follows directly under this claim, looks an awful lot like the bolstering we saw in legislative debates over Megan's Law.  It conflates child rape with child neglect, emotinal abuse, physical abuse, prostitution, pornography, and other things, thereby producing very large numbers and a sense that a crisis is afoot:

The Court should also consider the lasting and devastating effects that child rape inevitably has on the victim and society. [cites omitted]   Studies show that “child abuse and neglect have pervasive and long-lasting effects on children, their families, and the society.” Ching-Tung Wang & John Holton, Prevent Child Abuse Am., Chicago, Ill., Total Estimated Cost of ChildAbuse and Neglect in the United States, at http://www.preventchildabuse.org/about_us/media_releases/pcaa_pew_economic_impact_study_final.pdf [hereinafter Wang & Holton]. To get some sense of the magnitude ofthe problem of child abuse and neglect in the United States, it is estimated that the annual economic cost ofchild abuse and neglect in 2007 value is $103.8 billion. Id. In 2005, the U.S. government reported that “an estimated 899,000 children in the 50 States, the District of Columbia, and Puerto Rico were determined to be victims of abuse or neglect.” U.S. Dep’t of Health & Human 24 Servs., Admin. for Children & Families, Admin. on Children, Youth & Families, Children’s Bureau, Child Maltreatment 2005, Summary, at xiv. Of these children, 9.3 percent suffered sexual abuse. Id., at xv. And these are just the reported cases; it is widely recognized that incidents of child abuse are largely under-reported. See, e.g., Advocates for Youth, Fact Sheet, Child Sexual Abuse I: An Overview, at http://www.advocatesforyouth.org/PUBLICATIONS/factsheet/fsabuse1.htm. (last visited Feb.14, 2008) [hereinafter Advocates for Youth, Fact Sheet,Child Sexual Abuse]; Report of the Indep. Expert for the United Nations Study on Violence Against Children, U.N., Gen. Assembly, Rights of the Child, at 8 (Aug. 29, 2006).

The one sexual abuse statistic the brief did cite (9.3% of child abuse cases involved sexual abuse) does not refer to child rape.  Rather, "sexual abuse" is defined in the cited report as : contacts for sexual purposes, molestation, statutory rape, prostitution, pornography, exposure, incest, or other sexually exploitative activities. 

Child rape is devastating to the victims.  But this case is about whether the death penalty is appropriate for particularly brutal child rapes - not whether child abuse, child porn, child prostitution, statutory rape, or other crimes are pervasive in society. 

Comments

[Ann Bartow]

I may be misunderstanding your point, but are you suggesting that when children are protituted or forced to perform in pornography, this is not rape?

According to this DOJ site: http://www.justice.gov/criminal/ceos/prostitution.html

Among children and teens living on the streets in the United States, involvement in commercial sex activity is a problem of epidemic proportion. Approximately 55% of street girls engage in formal prostitution. Estes Report, Executive Summary at 7. Of the girls engaged in formal prostitution, about 75% worked for a pimp. Id. Pimp-controlled commercial sexual exploitation of children is linked to escort and massage services, private dancing, drinking and photographic clubs, major sporting and recreational events, major cultural events, conventions, and tourist destinations. Id. About one-fifth of these children become entangled in nationally organized crime networks and are trafficked nationally. Id. at 8. They are transported around the United States by a variety of means – cars, buses, vans, trucks or planes, Id., and are often provided counterfeit identification to use in the event of arrest. Id. The average age at which girls first become victims of prostitution is 12-14. Estes Report at 92. It is not only the girls on the streets that are affected -- for boys and transgender youth, the average age of entry into prostitution is 11-13. Id.

NB: I'm a death penalty opponent, without exceptions.

[Dan Filler]

Some of these cases certainly are rape, though others might be crimes short of rape. (Consensuality may not be an issue for young kids, but it may be for teens. It seems to me that that's why we treat statutory rape differently from rape. I understand that "consent" is a complicated concept, in many of the ways that it may be in the context of adult prostitution and porn as well.) In any case, I feel confident that you would not see legislatures suggesting death - or even life without parole - for most of these things, in large part because we do think they're different than what we understand to be included in the term rape. In that sense, the briefwriters are conflating concerns for the purpose of amping up statistical data supporting death.

[Steve]

"“child abuse and neglect have pervasive and long-lasting effects on children"

This is actually debatable. The empirical research so far has not supported the contention that child sex abuse invariably leads to psychopathology later in life.

That was what the Rind, at al. study was all about (and confirmed by others).

http://en.wikipedia.org/wiki/Rind_et_al._%281998%29

See also: \">http://www.crimeandconsequences.com/2007/02/cycling_sexual_violence.html">\

[Joe]

Ann,

I see what you're getting at, but the report says "Among children and teens living on the streets in the United States, involvement in commercial sex activity is a problem of epidemic proportion." But how many children in this country are really living on the streets? To call something an epidemic means that there is a high risk to the population. Now, I know that the DOJ report is saying it's epidemic to children living on the streets, but they are also, I think, trying to imply that commercial sex activity is an epidemic in general - a false statement.

Frankly, many of the DOJ studies are weak and their conclusions overly broad.

[Ann Bartow]

Well Joe, if you clicked through the link in my previous comment, you'd have seen an estimate for how many children:

"Although comprehensive research to document the number of children engaged in prostitution in the United States is lacking, it is estimated that about 293,000 American youth are currently at risk of becoming victims of commercial sexual exploitation. Richard J. Estes and Neil Alan Weiner, Commercial Sexual Exploitation of Children in the U.S, Canada and Mexico, University of Pennsylvania, Executive Summary at 11-12 (2001) (available at http://caster.ssw.upenn.edu/~restes/CSEC.htm); see also Mia Spangenberg, Prostituted Youth in New York City: An Overview (available at http://www.ecpatusa.org/child_prosti_us.asp). The majority of American victims of commercial sexual exploitation tend to be runaway or thrown away youth who live on the streets who become victims of prostitution. Id. at 11-12. These children generally come from homes where they have been abused, or from families that have abandoned them, Richard J. Estes and Neil Alan Weiner, Commercial Sexual Exploitation of Children in the U.S, Canada and Mexico, University of Pennsylvania, at 3 (2001) [hereinafter Estes Report], and often become involved in prostitution as a way to support themselves financially or to get the things they want or need. Id.

If you know of studies you consider more reliable, by all means post some links or reference data.

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recently my wife and I have supected one of our grown daughters were rape as a child. An attorney called me the other day to ask me some questions about
a former pastor
who sexually abused some. all my girls deny anything happen to them
but my gut tells me something different. How do I get the truth ? I know they will have to over guilt,shame and a host of other things. I want to help with this burden without hurting or causing more
hurt.
dural walrun

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