Rayburn 2004 Statutes

Title Information

Author: Corey Rayburn

Title: Better Dead than R(ap)ed?

Subtitle: The Patriarchal Rhetoric Driving Capital Rape Statutes

Journal: St. John's Law Review

Volume: 78

Issue: 4

Year: Fall 2004

Pages: 1119-1165

ISSN: 0036-2905 – Find a Library: WordCat

Language: English

Keywords: 20th Century | U.S. History | Prosecution: Laws

Full Text

Link: St. John's Law Scholarship Repository [Free Access]

Link: Social Science Research Network [Free Access]

Additional Information

Author: Corey Rayburn Yung, School of Law, University of Kansas


»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.« [Source: Social Science Research Network]


  Introduction (p. 1119)
  I. The History of Applying the Death Penalty to Rape (p. 1125)
    A. Early Death Penalty Rules in the West (p. 1126)
    B. Early American History (p. 1127)
    C. Proportionality and the Road to Coker (p. 1129)
    D. Coker v. Georgia (p. 1132)
    E. The Aftermath of Coker (p. 1135)
    F. Revival of the Death Penalty for Rape in Louisiana (p. 1136)
    G. Other States Following Louisiana's Lead (p. 1137)
    H. The Death Penalty Outside of the United States (p. 1140)
  II. The Rhetoric Behind the Reality (p. 1143)
    A. From Government Officials (p. 1145)
    B. The Media, Academia, and Activists Have Echoed Governments (p. 1146)
    C. The Culture Behind the Words (p. 1148)
  III. The Impact of Language and Policies (p. 1152)
    A. Messages to Those Who Have Been Raped (p. 1153)
      1. Why Live? (p. 1153)
      2. Fight Until Your Last Breath (p. 1156)
      3. The Ordeal of the Trial and Sentencing (p. 1157)
    B. Messages to Rapists (p. 1159)
    C. Other Messages and Other Audiences (p. 1162)
  Conclusions (p. 1163)

Added: October 26, 2013 | Last updated: November 9, 2013