In their 1977 opinion in the case of Coker v. Georgia, the United States Supreme Court struck down a portion of a Georgia statute authorizing the death penalty in certain rape cases. The four Justices compromising the plurality thought the death penalty "grossly disproportionate and excessive punishment for the crime of rape," and therefore violated the 8th Amendment outlawing cruel and unusual punishment. 433 U.S. 584, 598. While the plurality opinion did characterize rape as "the ultimate violation of self," it nonetheless found rape to be less heinous than homicide and concluded that rape "does not compare with murder ... in terms of moral depravity and ... the injury to the person and to the public." Id. at 597-98.

I strongly disagree. But my disagreement makes me wonder if I have a skewed sense of the external world.

The recent history of the criminal law seems to generally support the notion that murder and rape constitute the two most serious violations of self by another person (for the sake of argument, I will not consider this blanket statement in light of various categories of unintentional homicide or non-aggravated/statutory rape situations). I agree with the argument that murder has more serious empirical consequences. The victim is dead. You do not come back from death. End of story. I will also agree that you can make a strong argument that a perpetrator requires an extreme amount of moral depravity or an inability to think rationally in order to commit such a crime as murder. And I will agree that parties convicted of murder deserve very stringent punishments, generally leveraged closer to the maximum penalties our criminal justice system will permit.

But I have to disagree with the general theory that rape is a less serious offense than homicide in terms of a violation of the self and even in terms of moral depravity.

Empircally, the consequences of rape may seem less than those of murder. The victim becomes a survivor and has the opportunity to continue living his or her life and pursuing his or her goals. What the plurality opinion seems to neglect, even as it characterizes rape as the ultimate violation of self (and then immediately contradicts itself by saying an ultimate violation does not compare with the more heinous crime of murder, negating the descriptor "ultimate" entirely) is that while homicide is a strong violation of self, that violation may only last so long as the victim breathes away the remnants of his or her life. With rape, that infringement on the self of the victim lasts for the duration of his or her life; we apply the term "survivor" to them because we imagine they have already been to hell and back.

And back. Are we sure about this? Before making this assumption, we have a duty to consider the psychological impact of the violation on the survivor and those who will meet that survivor throughout the rest of his or her days. The violence of the violation committed in rape does not end when the commission of the rape ends and the bruises fade; it endures to the end of the survivor's days and beyond, carried on in the memories and nightmares of his or her family and friends.

The Court claims that rape does not compare to murder with respect to the injury to the person and to the public. But what do we consider as these injuries? With the commission of every murder, I would argue that a sense of fear seeps into the public consciousness, a fear of certain ethnic groups or neighborhoods or activities or whatever else you want to consider. Certainly this is an ill to the public, but perhaps an ill confined to the certain zones of fear in our head. Not to be racist, because I don't think I am, but when was the last time you were walking at night through an affluent white subarb and felt a small fear in the back of your mind that you or someone you loved might become a victim of murder? How about the last time you drove through the south side of Chicago, or East L.A. or Detroit? You have to admit that your state of mind is a little different in those two situations.

Now contrast this with rape. Allow me to throw at you some unresearched statistics that I remember generally from hearing them
previously. I know this is somewhat irresponsible, but I am on a tirade, so just let it go. (You should also take into account the fact that these statistics are based generally on reported cases of rape, and some theorists think that as many as 70% of rapes go unreported, which if true, greatly distorts the numbers into the realm of utter horror.) A woman is raped between every five and seven seconds in this country. The great majority of rape does not happen through violent assault or other incidents generally termed as aggravated rape, but between two people who previously knew each other.

Date rape, the use of alcohol or drugs to impair judgment, psychological pressures and fear of violence: these are more common tools of rapists, not guns and knives, though those certainly play a role in a number of rapes as well. Moreover, where do rapes frequently happen? College campuses, house parties, apartments, and on and on. Everyday places for a large number of us.

I hypothesized above that murder can create a fear of proximity in the public, that this fear is a great ill to the public sense of welfare and security. But rape, which can permeate the everyday situations of our lives, according to the Supreme Court, does not compare with homicide with respect to its injury to the public? What about the shattering of trust and the feeling of general safety we feel in our homes, with our friends, with people we meet at a party or a bar because they flashed a nice smile from across the room? What about the fact that we might fear the most basic of social situations because we cannot be positively sure of our own safety unless we are extremely cautious? What is the public cost of this caution, and how greatly do this caution restrict our enumerated basic right of the pursuit of happiness? Obviously I am dropping a great number of rhetorical questions here, but I nonetheless think I make the point that ill caused by rape is greater than an injury; it is a cancer feeding off itself and always growing. It metastisizes and pursues us into the most basic moments of our lives. It leaves us fearful of being alone with another person on suburban college campuses and makes us distrust dating, relationships, sex, love, emotional commitment, building a family, and on and on. I would consider these some of the most basic liberties that we have the right to pursue in this country, and the fear perpetuated by rape certainly can touch every one of these basic desires that seem simple enough goals for a great number of us to pursue.

And note that I have spent the great majority of the time talking about the ill to the public here. The difficulties a survivor of rape must endure are for the most part beyond my reach of discussion, for I have never raped anyone, nor am I a survivor of rape. Tragically, I have in my 23 years already met and come to know way too many survivors of rape to last an entire lifetime, and I shake my head in sorrow at the realization that I will meet more before my tenure on this Earth comes to an end. Nonetheless, I consider myself unsuited to try and explore how a rape affects the rest of a survivor's life. I can only assume the horror of it.

All that said, I have serious issues with the contention by the pluarilty of the Coker Court that rape does not compare with murder in terms of moral depravity and the injury to the person and to the public. I agree they do not directly compare, and as heinous as murder can be, I am of the opinion that rape is worse than murder. I agree with then Chief Justice Berger and Justice Rehnquist (and this is an extreme rarity that I agree with Rehnquist) in the observation that "the long-range effect [of rape] upon the victim's life and health is likely to be irreparable" and that "rape thus is not a crime 'light years' removed from murder in the degree of its heinousness." Id. at 611-12, 620. Personally I would rather be shot, execution style, in the back of the head, than raped. That may be the sickest thing I will ever write, but it's true.

And yet, at the end of all this discussion, though I disagree with the Court's reasoning, I do nonetheless agree with the plurality's ruling that capital punishment penalties should not be applied to felons convicted of rape.

I might more successfully articulate an explanation for that feeling if I knew how I felt in regard to the utility and fairness of capital punishment. I do not believe that the death penalty is unconstitutional as a violation of the 8th Amendment; under the right circumstances, I have no problem thinking you should die for killing someone else. In fact, I once rather strongly supported capital punishment and felt it an essential element to the criminal justice system. But little pieces of evidence have eroded that certainty. Questions of proof in capital cases, the fact that most death penalty cases end up costing more than life imprisonment due to the expense of appellate litigation, and the fact that the United States is the only Western country that has retained the death penalty. Furthermore, we could launch into the possibly racist nature of the death penalty as well, but I will not even explore the race question at this point. However, I recognize that there exist a multitude of racial arguments you could articulate to attack the legitimacy of the death penalty as well.

One of the major reasons I might still support capital punishment (and honestly, if I had to decide this moment one way or another, I do not know which side I would join) is the argument that no stronger deterrence exists than the risk of death. Currently, I am mulling through two rebuttals to that argument. For one, I am tempted to think that if you are morally depraved enough to intentionally murder (and I will say that I believe the death penalty should only apply in cases of intentional homicide), than how much of an added deterrent will the prospect of your own death over that of lifetime imprisonment be? Secondly, with the way the criminal justice system administers the death penalty, the actual punishment is so far out of the line of sight of the criminal, in that the average death row felon waits years before going to the gas chamber or for lethal injection, does it really make sense to claim the death penalty is a deterrent to a 20 year old; will he or she think that he might be executed at 35 because of his actions now? Additionally, I wonder if offering death to a felon is not conferring on him or her grace for killing. With life imprisonment, you must live out the rest of your days in dealing with the danger of prison.

But back to the point. If I were to come out in support of capital punishment, I would defend it in cases of intentional homicide, and yet I would have a hard time saying that it should apply to rape. Given my arguments above about the moral reprehensibility of rape, I would expect myself to argue differently. But I'm not.

Were I to decide that I supported capital punishment, would that make me as hypocritical as the Coker Court?

I would love any comments on this issue, so please, if you have any thoughts, leave them for me. This is a tough issue through which I am trying to work.