The Supreme Court ruled out the death penalty for rape
The Supreme Court has held that the Eighth Amendment forbids the death penalty for raping an adult woman (Coker v. Georgia, 1977) and for raping a child where the crime did not result, and was not intended to result, in the victim's death (Kennedy v. Louisiana, 2008, 5-4). Both rulings rest on the idea that the death penalty is excessive for a crime against an individual in which no life is taken. That is why a pro-life speaker can say: the law will not execute even a rapist, so why should the child conceived in rape die for his father's crime?
What this settles
That under current constitutional law no state may execute a person for rape of an adult or child when the victim's life was not taken; and that the Court's reason is the moral difference between taking a life and not taking one ('The murderer kills; the rapist, if no more than that, does not').What it doesn't settle
Whether abortion is analogous to a 'death penalty' for the child. Opponents will say abortion is not a punishment at all. The cases establish what the law does to rapists, not the moral status of the unborn. Kennedy expressly left aside crimes against the State such as treason and terrorism.The record
Coker v. Georgia
What it held
A sentence of death for the rape of an adult woman is grossly disproportionate and excessive punishment, and therefore forbidden by the Eighth Amendment as cruel and unusual.
Why
Georgia was the only State still authorizing death for rape of an adult woman, and Georgia juries rarely imposed it, which showed contemporary judgment against it. The plurality's own judgment was that rape, though deserving serious punishment, does not compare with murder in moral depravity and injury because the rapist does not take human life.
Status
Good law. Extended to child rape by Kennedy v. Louisiana (2008).
In the Court's words
We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.Majority · 433 U.S. at 592
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.Majority · 433 U.S. at 598
We have the abiding conviction that the death penalty, which “is unique in its severity and irrevocability,” Gregg v. Georgia, 428 U. S., at 187, is an excessive penalty for the rapist who, as such, does not take human life.Majority · 433 U.S. at 598
The deliberate viciousness of the rapist may be greater than that of the murderer.Dissent · 433 U.S. at 603 (Powell, J., concurring in the judgment in part and dissenting in part)
I accept that the Eighth Amendment’s concept of disproportionality bars the death penalty for minor crimes. But rape is not a minor crime; hence the Cruel and Unusual Punishments Clause does not give the Members of this Court license to engraft their conceptions of proper public policy onto the considered legislative judgments of the States.Dissent · 433 U.S. at 604 (Burger, C.J., dissenting)
Coker had already been serving life sentences for murder, rape and other crimes when he escaped and raped another 16-year-old woman 'in the presence of her husband' (433 U.S. at 605, Burger, C.J., dissenting). Even so, the Court held death excessive for rape of an adult woman. The plurality's framing was limited to 'rape of an adult woman', which is why Kennedy v. Louisiana was needed for child rape.
Checked 2026-10-03: Read the official U.S. Reports scan (Library of Congress, usrep433584) and located each quote on its page; cross-checked against the Cornell LII text. Note: 'majority' here marks the plurality opinion announcing the judgment. Source
Kennedy v. Louisiana
What it held
The Eighth Amendment bars a State from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death. (Opinion modified October 1, 2008, on denial of rehearing.)
Why
Only six States authorized death for child rape and no one had been executed for rape of an adult or child since 1964, showing a national consensus against it. In its independent judgment the Court drew a line between intentional first-degree murder and 'nonhomicide crimes against individual persons, even including child rape', which may be devastating but cannot be compared to murder in 'severity and irrevocability'. It also cited the risk of unreliable child testimony, the risk of discouraging reporting, and the difficulty of limiting death to the worst cases.
Status
Good law as of 2026-10-03. Several states have since passed laws authorizing death for child rape in order to invite the Court to reconsider (see unverified).
In the Court's words
Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.Majority · 554 U.S. at 421
Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.Majority · 554 U.S. at 437
Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other.Majority · 554 U.S. at 438
The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.Dissent · 554 U.S. at 447 (Alito, J., dissenting)
The harm that is caused to the victims and to society at large by the worst child rapists is grave. It is the judgment of the Louisiana lawmakers and those in an increasing number of other States that these harms justify the death penalty. The Court provides no cogent explanation why this legislative judgment should be overridden.Dissent · 554 U.S. at 469 (Alito, J., dissenting)
Patrick Kennedy was sentenced to death for the aggravated rape of his 8-year-old stepdaughter. The Court held the Constitution forbids death for such a crime where the child does not die. Alito's dissent is the strongest statement of the other view and is quoted at full strength below.
Checked 2026-10-03: Read the official U.S. Reports volume text (Library of Congress, usrep554407) and located each quote on its page; also read the slip opinion and Alito dissent at Cornell LII (supct/html/07-343.ZO and .ZD). Source
What the other side argues
They say
The 'death penalty for the child' line is a false analogy: abortion is not a punishment of anyone. The woman is declining to continue a pregnancy she never consented to, not sentencing the child for the father's crime.
Judith Jarvis Thomson, 'A Defense of Abortion', Philosophy & Public Affairs 1(1):47-66 (1971), whose rape and 'violinist' cases frame the bodily-autonomy argument (see card E05).
Answer
True that abortion is not a legal punishment, and the line should be used as an illustration, not a legal argument. Its point is about who bears death: the law will not take the life of the guilty man even for a terrible crime against an individual, because 'the rapist ... does not take human life'; it is odd to accept the death of the one party who did nothing wrong. Whether ending a pregnancy is killing or 'declining to sustain' is the bodily-autonomy question, answered on its own terms (E05).
They say
The rulings are wrong and should be overturned: the worst child rapists deserve death, and the Court substituted its own moral views for the people's.
Kennedy v. Louisiana, 554 U.S. at 447, 469 (Alito, J., dissenting); Coker, 433 U.S. at 604 (Burger, C.J., dissenting).
Answer
This is a real debate, and some pro-lifers agree with the dissents. It does not weaken the card's point, which is only about current law: as of today no rapist can be executed in the United States for a rape in which the victim lived. Speakers should say 'the Supreme Court has ruled out the death penalty for rape', not 'it's against federal law'.
Practise with these cards
E06 What about rape and incest?