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Child Rape, the Death Penalty, and the Military

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Louisiana's rehearing petition in the Supreme Court case continues to prompt much discussion. Our post on the original decision is here. SCOTUSblog has the petition for rehearing here. Doug Berman's latest SL&P post, with a link to the prior one, is here. The main point of the rehearing petition is that the parties failed to brief, and therefore the Court was unaware, that Congress has provided for the death penalty for rape of a child in the Uniform Code of Military Justice. The "consensus" analysis of the opinion is therefore not entirely accurate.

I do not believe this will make a difference. The military is unique, and the fact that Congress thought this penalty is necessary in a military context says little about its appropriateness for the general population. The crime of rape by soldiers is one that particularly inflames the local citizenry against the military, and the damage may go far beyond the individual victim to an impairment of the mission. We have seen this in Iraq.

Indeed, it is an open question whether the entire Furman v. Georgia regime even applies to the military. In Loving v. United States, 517 U.S. 748, 755 (1996), the Court applied this line of precedent in a military case but noted it was assuming rather than deciding that question. The Government had not challenged the applicability of Furman. The ASG writing the brief wanted to but couldn't. It was the Clinton Administration. The issue was raised by a certain wascally amicus, but the Court took its usual position of limiting its decision to the issues raised by the parties.

So, I expect the most we will get from this rehearing petition is a minor modification of the opinion.

1 Comment

But isn't the imposition of death for a crime which is not uniquely military a moral question? And if that's the case, Congress has weighed in on the moral question of whether executing child rapists is permissible in a civilized society such as ours. Put another way, I don't see how the status of the offender as a military member has any bearing on the moral question of whether capital punishment is acceptable for child rape. Congress has said that it is, and I don't see how that has any limiting principle.

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