The Volokh Conspiracy - Justice Ginsburg and the Death Penalty for Rape:

A comment on the thread about the new Supreme Court death-penalty-for-child-rape case wrote, "I think [Justice Ginsburg] may be disturbed by some of the statements in the Coker decision about rape not having any long term harm on women. As a woman, I am sure she was not thrilled with 9 men deciding that." I should note that Coker says,

Ruth Bader Ginsburg, Melvin L. Wulf, Marjorie Mazen Smith, and Nancy Stearns filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal [of the death sentence].

The brief was filed on behalf of the American Civil Liberties Union, the Center for Constitutional Rights, the National Organization for Women Legal Defense and Education Fund, the Women's Law Project, the Center for Women Policy Studies, the Women's Legal Defense Fund, and Equal Rights Advocates, Inc.; here's the summary of the argument from that brief:

The historical origin of the death penalty for rape lies in the long standing view of rape as a crime of property where the aggrieved was not the woman but her husband or father. In the Southern states this view coalesced with a tradition which valued white women according to their purity and chastity and assigned them exclusively to white men.

As a result, a double standard of justice developed for weighing and punishing rape by white and black men. This double standard of justice was reflected in Georgia's penalty structure for rape which, until the abolition of slavery, reserved the death penalty exclusively for black men. Even since 1861, the death sentence has rarely been imposed on white men.

The history of rape as a crime against man's property, not against the woman herself, sheds light on the ambivalent treatment of the victim who is viewed not simply as the virgin whose violation inspires outrage but also as the temptress who threatens every man with conviction. This latter perception, as well as the severe penalties attached to a rape conviction, has led to special rules requiring corroboration of the victim's testimony, permitting evidence of the woman's prior sexual conduct or reputation for chastity and authorizing cautionary jury instructions which impugn the victim's credibility.

The death penalty for rape does not meet "contemporary standards regarding the infliction of punishment," Woodson v. North Carolina, 96 S. Ct. 2978 (1976), and hence runs afoul of the Eighth Amendment. Jury repudiation of the penalty is apparent. Moreover, overly severe penalties for rape, epitomized by the death penalty, are counterproductive to the goal of affording maximum legal protection to victims of rape since they have led to a conviction rate for rape which is lower than that for any other major violent crime.

Amici, interested in effective enforcement of laws against rape, urge that the death penalty for rape be invalidated because it stems from archaic notions which demean women and gross racial injustice and does not serve the goal of convicting and subjecting to criminal sanctions those who are in fact guilty of rape.

Now maybe there are parts of the language in Coker that Justice Ginsburg disapproves of -- though I certainly wouldn't say that Coker describes rape as "not having any long term harm on women," especially given this passage from the Coker plurality:

We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the "ultimate violation of self." It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage. Because it undermines the community's sense of security, there is public injury as well.

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which "is unique in its severity and irrevocability," is an excessive penalty for the rapist who, as such, does not take human life.

Likewise, it's possible that Justice Ginsburg has changed her views in the last 30 years. Still, I wouldn't infer much from Justice Ginsburg's sex or feminism about her views on the death penalty for rape.

	[Eugene Volokh, January 5, 2008 at 2:15pm] Trackbacks Justice Ginsburg and the Death Penalty for Rape: A comment on the thread about the new Supreme Court death-penalty-for-child-rape case wrote, "I think [Justice Ginsburg] may be disturbed by some of the statements in the Coker decision about rape not having any long term harm on women. As a woman, I am sure she was not thrilled with 9 men deciding that." I should note that Coker says, Ruth Bader Ginsburg, Melvin L. Wulf, Marjorie Mazen Smith, and Nancy Stearns filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal [of the death sentence]. The brief was filed on behalf of the American Civil Liberties Union, the Center for Constitutional Rights, the National Organization for Women Legal Defense and Education Fund, the Women's Law Project, the Center for Women Policy Studies, the Women's Legal Defense Fund, and Equal Rights Advocates, Inc.; here's the summary of the argument from that brief: The historical origin of the death penalty for rape lies in the long standing view of rape as a crime of property where the aggrieved was not the woman but her husband or father. In the Southern states this view coalesced with a tradition which valued white women according to their purity and chastity and assigned them exclusively to white men. As a result, a double standard of justice developed for weighing and punishing rape by white and black men. This double standard of justice was reflected in Georgia's penalty structure for rape which, until the abolition of slavery, reserved the death penalty exclusively for black men. Even since 1861, the death sentence has rarely been imposed on white men. The history of rape as a crime against man's property, not against the woman herself, sheds light on the ambivalent treatment of the victim who is viewed not simply as the virgin whose violation inspires outrage but also as the temptress who threatens every man with conviction. This latter perception, as well as the severe penalties attached to a rape conviction, has led to special rules requiring corroboration of the victim's testimony, permitting evidence of the woman's prior sexual conduct or reputation for chastity and authorizing cautionary jury instructions which impugn the victim's credibility. The death penalty for rape does not meet "contemporary standards regarding the infliction of punishment," Woodson v. North Carolina, 96 S. Ct. 2978 (1976), and hence runs afoul of the Eighth Amendment. Jury repudiation of the penalty is apparent. Moreover, overly severe penalties for rape, epitomized by the death penalty, are counterproductive to the goal of affording maximum legal protection to victims of rape since they have led to a conviction rate for rape which is lower than that for any other major violent crime. Amici, interested in effective enforcement of laws against rape, urge that the death penalty for rape be invalidated because it stems from archaic notions which demean women and gross racial injustice and does not serve the goal of convicting and subjecting to criminal sanctions those who are in fact guilty of rape. Now maybe there are parts of the language in Coker that Justice Ginsburg disapproves of -- though I certainly wouldn't say that Coker describes rape as "not having any long term harm on women," especially given this passage from the Coker plurality: We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the "ultimate violation of self." It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage. Because it undermines the community's sense of security, there is public injury as well. Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which "is unique in its severity and irrevocability," is an excessive penalty for the rapist who, as such, does not take human life. Likewise, it's possible that Justice Ginsburg has changed her views in the last 30 years. Still, I wouldn't infer much from Justice Ginsburg's sex or feminism about her views on the death penalty for rape.