Abstract
The act of rape on an eight-year-old body is a matter of the needle giving because the camel can’t. The child gives, because the body can, and the mind of the violator cannot.
- Maya Angelou
In May 2023, Florida authorized the death penalty for the sexual battery of a child under twelve. This policy quickly sparked a wave of similar legislation. Tennessee capitalized child rape in May 2024, followed by Idaho in March 2025. These laws—passed with strong bipartisan support in each state—challenge the Supreme Court to overrule Kennedy v. Louisiana, a controversial 2008 decision holding that the Eighth Amendment prohibits capital punishment for the rape of a child.
This surge of legislative interest in capitalizing child rape heralds the reemergence of an old frontier in Eighth Amendment jurisprudence. It also highlights a deeper dysfunction in the way that we criminalize child sexual abuse. There is a need to reexamine Kennedy in this light and, more broadly, to interrogate the paradoxical role that sex crimes against children occupy in American law and culture. This Article provides that analysis and makes three scholarly contributions.
First, the Article provides a thick descriptive account of the dissonance in the criminal system’s response to child sexual abuse—a blend of apathy and outrage, horror and indifference. Second, the Article uses the emotion of disgust to reconcile these seemingly contradictory narratives. Though most often associated with food and bodily waste, disgust can attach equally to social violations. Scholars have employed disgust to explain anti-sodomy laws, incest prohibitions, and domestic violence judgments, and this Article extends the analysis to sex crimes against children. Third, the Article links this analysis to the concept of epistemic violence and uses that framework to illuminate the constitutional infirmities of capital child rape laws.
Ultimately, the Article proposes that capitalizing child rape acts as a symbol of revulsion at the expense of the broader system of punishment, an expression of our own unsettled view of the crime.
Recommended Citation
ROSEMARY ARDMAN,
CHILD RAPE AND THE DEATH PENALTY,
61
Idaho L. Rev.
(2025).
Available at:
https://digitalcommons.law.uidaho.edu/idaho-law-review/vol61/iss2/1