May 31, 2007
States Move to Enact Laws Allowing the Death Penalty for Pedophiles:
A Good Sign with Respect to Public Dedication to Protecting Children, But
Potentially Not the Most Effective Way to Do So
By MARCI HAMILTON, FindLaw
Last week, the Louisiana Supreme Court upheld the death penalty as applied
to a child abuser. Louisiana has led the way in passing laws to execute
pedophiles. However, Oklahoma, South Carolina, Georgia, and Montana also
have passed such laws, with Texas soon to follow when Gov. Rick Perry signs
such legislation.
A major impetus for the death penalty in child sex cases is the heinous
crime by a previously-convicte
Jessica Lunsford, who suffered horrific abuse, including burial alive in a
shallow grave, where she eventually suffocated.
If there is a way to measure the temperature of public opinion against child
abuse, this is it, and it bodes well for children, even if it is not the
most effective way of protecting children.
Concerns with the Death Penalty Legislation, and Priorities in the Fight
Against Child Abuse
Some have expressed concern that if the penalty for pedophilia is raised to
death, children may be deterred from reporting abuse, especially when it is
committed by a relative. Yet such a small percentage of child sex abuse
victims report their abuse at this point - estimates run about 10% -- that
one has to wonder about the marginal effect of the death penalty. Kids
already are terrified to report, usually because they are threatened by
their abusers, so this shift in the law would seem to make little
difference.
My concern, however, is that pedophile-death-
distraction from what needs to be done to truly protect the most children
possible, the most effectively. It's important to remember that the
difference between a pedophile in jail and one put to death, from a child's
perspective, is negligible - in either case, children are safe from that
perpetrator.
Moreover, the main problem we currently have when it comes to pedophilia
(and this is an element in the huge and powerful response to Jessica
Lunsford's death) is that we are not succeeding in identifying many of the
perpetrators that are out there.
As I discussed in a previous column, legislative reform for children is not
hitting at the heart of the problem - the anonymity of the predators, which
is guaranteed by overly short statutes of limitations. Megan's Law created
public lists of sex offenders, but those lists are woefully short, because
the statute of limitations in the vast majority of child sex abuse cases
runs long before the victim has the ability to come forward to anyone, and
without a criminal conviction, an offender cannot be placed on any
state-maintained Megan's List. The result is that thousands upon thousands
of predators are out there, unidentified to unsuspecting families and
children.
Why Abolishing Criminal and Civil Statutes of Limitation Will Protect Far
More Children than the Pedophile Death Penalty Will
Column continues below ↓
As I have argued more than once, the key is to abolish the statutes of
limitation on childhood sexual abuse - both criminal and civil. Most states
are moving in a forward direction in this respect, in that they are at least
extending the statutes of limitations on childhood sexual abuse, with a few,
like Alaska and Maine, abolishing them outright. This was the right
decision: Surely the interests of the victims and society as a whole are
more valuable than the perpetrator'
prosecution or litigation.
In this area, abolition will eventually happen, because it is the only just
solution to an intractable social problem. The question is just how quickly,
and how many additional victims will suffer due to the delay.
Because of the Supreme Court's unfortunate 5-4 decision in Stogner v.
California, no legislature can abolish the criminal statutes of limitations
retroactively. Rather, they may only abolish criminal limitations with
respect to future cases. Importantly, however - because this restriction
comes from the Constitution'
criminal penalties -- the same is not true for civil statutes of
limitations. In many states, civil statutes of limitations many be abolished
not only prospectively, but also retroactively. If a civil statute of
limitations is eliminated, even for a "window" of a year or so, the public
learns more than it would ever know otherwise about the identity of the
dangerous child abusers in our communities.
In 2003, California abolished the statute of limitations on childhood sexual
abuse claims. As a result, over 800 victims came forward, and at least 300
perpetrators were named, of whom the public had previously been ignorant.
Before then, those 300 perpetrators were comfortably relying on the statute
of limitations to keep their crimes secret - and likely preying on new
victims, thanks to a cloak of anonymity. Luckily for us, California had the
foresight to pass a law that should be a model for the country.
Additional Recent Proposals to Abolish the Child Abuse Statute of
Limitations Are A Welcome Development
The grassroots movement to abolish the statute of limitations in childhood
sexual abuse cases is swelling, and it cannot be turned back. Over the past
year, legislative proposals to this effect have been made in numerous
states, including Alaska, Maine, Maryland, Delaware, and Pennsylvania.
Hearings will be held on such legislation in Washington, DC this Friday,
June 1.
The story of statutes of limitation for childhood sexual abuse in the United
States is one of incremental, but constant reform. It is not unusual for a
given state to have amended its sex abuse statutes of limitation as often as
annually. The more we learn about how much we don't know about the predators
out there, the more legislators are persuaded that there must be more time
for victims to not only seek individual justice, but also bring this
information to the courts and the public.
Such reform should -- but doesn't always -- pass the first time around. That
is just the way the legislative process sometimes works, and fortunately,
given the fervor of those behind these reforms, they will be re-introduced
in those states where they have not yet been enacted. It is simply
inevitable.
Aiding abolition forces is the fact that their opposition has fast lost any
moral high ground it might have claimed- arguing in favor of those persons
and institutions who actively cover up child abuse and protect abusers, and
trumpeting the "rights" of the perpetrators to rest secure in the knowledge
that, after a certain amount of time has passed, they will never be
prosecuted.
On the other side of the issue, it's important to remember that this is an
area in which victims' delay in coming forward is profoundly understandable.
When a child suffers abuse, the profound psychological effects last a
lifetime. For a victim, coming forward typically means revisiting intense
pain, confronting misplaced but real feelings of shame, revealing a painful
incident to their families (including their own children), and having the
courage to confront their abuser - even though he or she was typically a
trusted adult, often an authority figure, and sometimes was freighted with
the intimidating religious authority a priest carries. No wonder it takes
years.
The only effect such reforms have, is on the date the victim may go to
court. They do not change the substantive law, nor the burdens of proof
borne by the defendants or victims. They literally do nothing but open the
previously locked courthouse door, telling victims that they should be
permitted their day in court, in order to prove to the world that they were
wronged in a most heinous way.
Perhaps there is one other effect - such laws are bound to make pedophiles
and all past or would-be child predators nervous. Couldn't happen to a nicer
group of people.
Before investing any more effort in choosing between prison and death for
known pedophiles, as a society we really need to focus on identifying the
silent and secret society of child predators that is now enjoying the
existing statutes of limitations. Revealing these existing predators is the
most effective way of protecting our children right now - before further
abuse occurs
---
Source : FindLaw (Professor Hamilton's book, God vs. the Gavel: Religion and
the Rule of Law (Cambridge University Press 2005), will appear in paperback
in June 2007, and her next book, How to Deliver Us from Evil (Cambridge
University Press 2008) will appear in January 2008. Her email is
hamilton02@aol.
http://writ.
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