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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


Thursday, May. 31, 2007

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-convicted sex offender against Florida nine-year old 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-penalty laws are, in the end, a 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

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's need to be free from concern about 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's Ex Post Facto Clause, which only applies to 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

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

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