The Volokh Conspiracy - Does 18 U.S.C. § 242 Permit the Death Penalty for Child Rape?:

After reading about the Supreme Court's order seeking briefing on rehearing in Kennedy v. Louisiana, a reader e-mails in with a question: Is 18 U.S.C. § 242 another federal law that also permits the death penalty for child rape? I did some quick research into the matter. To my surprise, my tentative answer is "yes."

[UPDATE: Ah, the beauty of tentative answers is how easy they are to change! In the comment thread, Kent Scheidegger points out 18 U.S.C.A. § 3591, a statute that (as I presently understand it) appears to trump the language § 242. Under § 3591, the death penalty cannot be charged unless death results in a federal criminal case even if the statute itself appears to authorize it. So as I understand things, § 242 on its face appears to authorize the death penalty for crimes including child rape, for the reasons explored below, but such a prosecution could not be brought under § 3591. I apologize for the confusion, and thank Kent for the comment.]

To read the rest of this post, click here.

18 U.S.C. § 242 is a criminal statute that applies to government employees and others acting on behalf of the government. It makes it a crime for a government official acting in the course of their official duties to willfully deprive a person of their civil rights. The penalty provision of the statute provides for the death penalty in some egregious circumstances:

if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, [the defendant] shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

  The language permitting the death penalty in the statute was added in 1994, when Congress passed the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322. This was the massive Clinton-era law that expanded the federal death penalty, enacted the assault weapons ban, and enacted the Violence Against Women Act. (According to the Wikipedia page on the law, it is sometimes known as the Biden Crime law, as it was pushed by Delaware Senator and current VP nominee Joe Biden.)

    The term "aggravated sexual abuse" in 18 U.S.C. § 242 is not specifically defined, but courts have quite reasonably concluded that it refers to the federal crime of aggravated sexual abuse found in 18 U.S.C. § 2241. See United States v. Holly, 488 F.3d 1298, 130102 (10th Cir. 2007) ("Because aggravated sexual abuse is not defined in § 242, the statute necessarily requires reference to 18 U.S.C. § 2241 , the federal aggravated sexual abuse statute. . . . Thus, although [the defendant's] convictions on the challenged counts were pursuant to § 242, these convictions turn on whether his acts violated the substantive provisions of § 2241.")

  Section 2241 is a federal rape crime statute; it mostly applies on federal land such as park land and military bases. 18 U.S.C. § 2241(c) is the statutory rape section. It provides:

Whoever crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years, or in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or knowingly engages in a sexual act under the circumstances described in subsections (a) and (b) with another person who has attained the age of 12 years but has not attained the age of 16 years (and is at least 4 years younger than the person so engaging), or attempts to do so, shall be fined under this title and imprisoned for not less than 30 years or for life. If the defendant has previously been convicted of another Federal offense under this subsection, or of a State offense that would have been an offense under either such provision had the offense occurred in a Federal prison, unless the death penalty is imposed, the defendant shall be sentenced to life in prison.

  Putting Section 242 and Section 2241 together, it looks to me like Congress added the death penalty in 1994 for statutory rape of a minor under the age of 12 when the offense was committed by a government official acting under color of law. So, for example, if the state court judge in United States v. Lanier, 520 U.S. 259 (1997), had committed statutory rape of a minor under the age of 12 instead of committing sexual assaults on adults, he would have been eligible for the federal death penalty for child rape.

  If I'm right about this, I think it provides an even better argument for rethinking Kennedy v. Louisiana than the existence of the 2006 military rape statute that was discovered earlier. The legal question in Kennedy concerns how the enactment of law reflects "evolving standards of decency." As I explained in an earlier post, it's not clear that a military statute is particularly relevant to this. On the other hand, the 1994 Act was a very big deal. It was very high profile legislation expanding the scope of federal criminal law, not some kind of military law tucked into some other legislation that no one noticed.

  This post is long enough, but let me note one of the more interesting counterarguments. The counterargument is this: This law isn't relevant to evolving standards of decency because it's not entirely clear Congress intentionally added the death penalty for child rape. I don't have in mind the technical point that legislatures don't actually have "intents," although I think that is generally true. Rather, my quick look into the history of the language suggests the possibility that the death penalty for child rape may have been an accidental product of two different statutory amendments. If that's correct, then it at least raises the argument that the law is less relevant from the standpoint of determining "evolving standards of decency."

  Let me explain. Before 1994, the aggravated penalty provision in Section 242 was much less severe. It stated just that "if death results, [the defendant] shall be subject to imprisonment for any term of years or for life." That is, it allowed a life sentence when death resulted. When Congress enacted the 1994 Act, it amended this language in two different sections of the Act: § 60006(b) and § 320103(b). The first section, § 60006(b), entitled "DEATH PENALTY FOR CIVIL RIGHTS MURDERS," added the death penalty:

Section 242 of title 18, United States Code, is amended by striking the period at the end of the last sentence and inserting `, or may be sentenced to death.'.

This change alone would amend the last phrase of the statute to the following:

if death results, [the defendant] shall be subject to imprisonment for any term of years or for life, or may be sentenced to death.

The second section, § 320103(b), "INCREASED PENALTIES FOR CIVIL RIGHTS VIOLATIONS," added what seems to be a life sentence for certain types of crimes in which death did not necessarily result:

(3) by inserting `from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or' after `death results'; (4) by striking `shall be subject to imprisonment' and inserting `imprisoned'; and (5) by inserting `, or both' after `life'.

If you imagine that this second change had been the only change to the statute, that last phrase would have read as follows:

if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, [the defendant] shall be imprisoned for any term of years or for life or both.

  I haven't spent enough time with the statute to be sure, but I wonder if anyone on the Hill realized that these two different sections went into law at the same time. The 1994 Act was incredibly long; it has hundreds of sections. It's at least possible that one noticed the two different sections amending the same penalty provision: one added the death penalty, the other added more predicate offenses. I wonder, did anyone realize that the combined effect of the two sections was to create a statutory death penalty for rape, and through 2241(c), specifically for child rape? And if that's what happened, does that matter for purposes of the evolving standards of decency inquiry? Presumably only the Supreme Court can answer that, and only if the Supreme Court grants the petition for rehearing.

  Anyway, I should stress that my legal conclusions here are tentative. It's absolutely possible that I'm just missing something, and that I'm wrong about this. But it seemed like an important point if it's accurate.

  Thanks to reader Edmund Unnneland for the question.

	[Orin Kerr, September 11, 2008 at 5:35pm] Trackbacks Does 18 U.S.C. § 242 Permit the Death Penalty for Child Rape?: After reading about the Supreme Court's order seeking briefing on rehearing in Kennedy v. Louisiana, a reader e-mails in with a question: Is 18 U.S.C. § 242 another federal law that also permits the death penalty for child rape? I did some quick research into the matter. To my surprise, my tentative answer is "yes." [UPDATE: Ah, the beauty of tentative answers is how easy they are to change! In the comment thread, Kent Scheidegger points out 18 U.S.C.A. § 3591, a statute that (as I presently understand it) appears to trump the language § 242. Under § 3591, the death penalty cannot be charged unless death results in a federal criminal case even if the statute itself appears to authorize it. So as I understand things, § 242 on its face appears to authorize the death penalty for crimes including child rape, for the reasons explored below, but such a prosecution could not be brought under § 3591. I apologize for the confusion, and thank Kent for the comment.] To read the rest of this post, click here. 18 U.S.C. § 242 is a criminal statute that applies to government employees and others acting on behalf of the government. It makes it a crime for a government official acting in the course of their official duties to willfully deprive a person of their civil rights. The penalty provision of the statute provides for the death penalty in some egregious circumstances: if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, [the defendant] shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death. The language permitting the death penalty in the statute was added in 1994, when Congress passed the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322. This was the massive Clinton-era law that expanded the federal death penalty, enacted the assault weapons ban, and enacted the Violence Against Women Act. (According to the Wikipedia page on the law, it is sometimes known as the Biden Crime law, as it was pushed by Delaware Senator and current VP nominee Joe Biden.) The term "aggravated sexual abuse" in 18 U.S.C. § 242 is not specifically defined, but courts have quite reasonably concluded that it refers to the federal crime of aggravated sexual abuse found in 18 U.S.C. § 2241. See United States v. Holly, 488 F.3d 1298, 130102 (10th Cir. 2007) ("Because aggravated sexual abuse is not defined in § 242, the statute necessarily requires reference to 18 U.S.C. § 2241 , the federal aggravated sexual abuse statute. . . . Thus, although [the defendant's] convictions on the challenged counts were pursuant to § 242, these convictions turn on whether his acts violated the substantive provisions of § 2241.") Section 2241 is a federal rape crime statute; it mostly applies on federal land such as park land and military bases. 18 U.S.C. § 2241(c) is the statutory rape section. It provides: Whoever crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years, or in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or knowingly engages in a sexual act under the circumstances described in subsections (a) and (b) with another person who has attained the age of 12 years but has not attained the age of 16 years (and is at least 4 years younger than the person so engaging), or attempts to do so, shall be fined under this title and imprisoned for not less than 30 years or for life. If the defendant has previously been convicted of another Federal offense under this subsection, or of a State offense that would have been an offense under either such provision had the offense occurred in a Federal prison, unless the death penalty is imposed, the defendant shall be sentenced to life in prison. Putting Section 242 and Section 2241 together, it looks to me like Congress added the death penalty in 1994 for statutory rape of a minor under the age of 12 when the offense was committed by a government official acting under color of law. So, for example, if the state court judge in United States v. Lanier, 520 U.S. 259 (1997), had committed statutory rape of a minor under the age of 12 instead of committing sexual assaults on adults, he would have been eligible for the federal death penalty for child rape. If I'm right about this, I think it provides an even better argument for rethinking Kennedy v. Louisiana than the existence of the 2006 military rape statute that was discovered earlier. The legal question in Kennedy concerns how the enactment of law reflects "evolving standards of decency." As I explained in an earlier post, it's not clear that a military statute is particularly relevant to this. On the other hand, the 1994 Act was a very big deal. It was very high profile legislation expanding the scope of federal criminal law, not some kind of military law tucked into some other legislation that no one noticed. This post is long enough, but let me note one of the more interesting counterarguments. The counterargument is this: This law isn't relevant to evolving standards of decency because it's not entirely clear Congress intentionally added the death penalty for child rape. I don't have in mind the technical point that legislatures don't actually have "intents," although I think that is generally true. Rather, my quick look into the history of the language suggests the possibility that the death penalty for child rape may have been an accidental product of two different statutory amendments. If that's correct, then it at least raises the argument that the law is less relevant from the standpoint of determining "evolving standards of decency." Let me explain. Before 1994, the aggravated penalty provision in Section 242 was much less severe. It stated just that "if death results, [the defendant] shall be subject to imprisonment for any term of years or for life." That is, it allowed a life sentence when death resulted. When Congress enacted the 1994 Act, it amended this language in two different sections of the Act: § 60006(b) and § 320103(b). The first section, § 60006(b), entitled "DEATH PENALTY FOR CIVIL RIGHTS MURDERS," added the death penalty: Section 242 of title 18, United States Code, is amended by striking the period at the end of the last sentence and inserting `, or may be sentenced to death.'. This change alone would amend the last phrase of the statute to the following: if death results, [the defendant] shall be subject to imprisonment for any term of years or for life, or may be sentenced to death. The second section, § 320103(b), "INCREASED PENALTIES FOR CIVIL RIGHTS VIOLATIONS," added what seems to be a life sentence for certain types of crimes in which death did not necessarily result: (3) by inserting `from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or' after `death results'; (4) by striking `shall be subject to imprisonment' and inserting `imprisoned'; and (5) by inserting `, or both' after `life'. If you imagine that this second change had been the only change to the statute, that last phrase would have read as follows: if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, [the defendant] shall be imprisoned for any term of years or for life or both. I haven't spent enough time with the statute to be sure, but I wonder if anyone on the Hill realized that these two different sections went into law at the same time. The 1994 Act was incredibly long; it has hundreds of sections. It's at least possible that one noticed the two different sections amending the same penalty provision: one added the death penalty, the other added more predicate offenses. I wonder, did anyone realize that the combined effect of the two sections was to create a statutory death penalty for rape, and through 2241(c), specifically for child rape? And if that's what happened, does that matter for purposes of the evolving standards of decency inquiry? Presumably only the Supreme Court can answer that, and only if the Supreme Court grants the petition for rehearing. Anyway, I should stress that my legal conclusions here are tentative. It's absolutely possible that I'm just missing something, and that I'm wrong about this. But it seemed like an important point if it's accurate. Thanks to reader Edmund Unnneland for the question.