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Better Dead than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes


Corey Rayburn Yung


University of Kansas School of Law


St. Johns Law Review, Vol. 78, No. 4, p. 1119, Fall 2004

Abstract:     
Beginning with the passage of the death penalty for rapists of children in Louisiana in 1995, a series of similar statutes have been proposed and passed in state legislatures across the country. The Louisiana Supreme Court subsequently upheld the statute despite the United States Supreme Court holding in Coker v. Georgia that capital punishment was unconstitutional for rape. The supporters of the new statute have argued that Coker does not apply to the rape of children. As a result, the political forces in favor of increasing punishment of child molestors have pushed the death penalty as a solution.

The United States has not been alone in pursuing this course. Even as the global trend has been away from using capital punishment, more countries are applying it the crime of rape. This is true even in countries where the death penalty is not allowed for murder.

This article argues that the source of this movement in the United States and around the globe is a revival of Victorian notions that someone is better off dead than raped. The elevation of chastity and purity has led activists, governments, and media to increasingly believe rape is a crime worse than murder. The article cites a range of speakers and writers who have argued that rape is indeed a crime worse than death.

Unfortunately, this trend serves to set back feminism in many ways. The emphasis on virginity and the invoking of Saint Maria Goretti has undermined efforts to help people recover from rape. After all, if it is better to be dead, then suicide is a logical option for many who have been raped. Further, the policy goals of these new statutes are often self-defeating. The end result of capital rape statutes is that criminals have an increased incentive to kill their victims so there will be no witnesses to their crime.

Because of the rhetoric driving these statutes, it is important that the fight against this statues not be confined to the legislatures and courtrooms. The cultural norms underlying these efforts must be attacked and awareness must be raised. Otherwise, the attitudes of patriarchy supporting the capital rape statutes will continue to undermine the goals of feminism in America and around the world.

Number of Pages in PDF File: 47

Keywords: Gender, criminal law, death penalty, capital punishment, rape, child molestation, feminism, coker, women

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Date posted: April 1, 2005  

Suggested Citation

Yung, Corey Rayburn, Better Dead than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes. St. Johns Law Review, Vol. 78, No. 4, p. 1119, Fall 2004. Available at SSRN: http://ssrn.com/abstract=683252

Contact Information

Corey Rayburn Yung (Contact Author)
University of Kansas School of Law ( email )
Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States
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