NASHVILLE, Tenn. — Tennessee lawmakers are considering a bill that would allow prosecutors to pursue the death penalty against people charged and convicted of child rape.
The bill, SB 1834, was introduced by Sen. Jack Johnson (R - Franklin) and would specifically allow the death penalty for cases involving the aggravated rape of a child. Lawmakers in the Senate voted to pass it on April 9, after narrowly passing the Senate Judiciary Committee.
In Tennessee, people can face the death penalty for homicide as well as for federal offenses like treason, or "drug kingpin activity." The bill would add child rape to the list of charges that people can die for.
Currently, people facing child rape charges may serve up to 40 years in prison, according to Stephen Crump from the District Attorney General's Office. The bill said defendants with intellectual disabilities would not face the death penalty, and neither would juvenile defendants.
Sen. London Lamar (D - Memphis) proposed an amendment during a committee meeting after she heard from advocates of children who were raped. It would have required that when a person is sentenced to death, the child survivor would need to be provided with mental health care throughout the process.
"Knowing that the person that they are accusing is going to die, that's a lot of pressure we're putting on children. In order for them to speak up about the violations they experienced, they know that someone is going to die. One, it may dissuade the children from coming up forth, in the first place," she said. "Let's do our part to give them the appropriate mental health counseling when they are brave enough to come up and make it be known that they have been raped."
Sen. Ken Yager (R -Kingston), who presented the bill during the March 26 meeting of the Senate Judiciary Committee, said he disagreed with Lamar and said he believed the amendment would have confused the issue. He said he would be open to supporting a bill during the next legislative session that guarantees child survivors of rape get mental healthcare, but did not want it to be included in his bill.
"The mental health of the child is damaged at the time of the rape, not during the trial," he said.
Lamar's amendment was tabled during the committee meeting.
After the amendment failed, Crump spoke in support of the bill. He said that a previous Supreme Court case, Kennedy vs. Louisiana, found the bill would be unconstitutional. However, he said the court's members have changed drastically since the decision, now having six justices that lean favorably to the death penalty.
"We believe the time has come. We believe this is a good bill," he said.
The bill's fiscal note said it could result in more expenses for the Public Defenders Conference, Office of the Post-Conviction Defender and Indigent Defense Fund. However, it could not reasonably estimate those increases.
"The bill that I want to be voting on is the bill that says if I catch someone doing this to a child, I am protected against any civil action and I am protected against any criminal indictment or charges," said Sen. Kerry Roberts (R - Springfield). "If I catch someone fingering my 12-year-old daughter and I kill them, what am I subject to?"
A spokesperson for the District Attorney's Office said if the senator had caught someone in the act and killed them, then it may be considered self-defense and he would not be charged.
Roberts also said he saw some issues with the bill that he wanted to change, such as implmenting stricter thresholds before prosecutors can pursue the death penalty, and also wanted to reach out to Governor Bill Lee to learn if the state was planning on resuming executions.
Following his questions, Lamar asked Crump if perpetrators may be incentivized to kill children they rape, since rapist may believe they would die anyway for the crime.
"I don't think there's any way to know that," Crump said. "Deterrence is a two-measure thing. It's not just based on the penalty, it's also based on the likelihood of being caught. Those two things can't be separated ... The death penalty is kinda like a lighthouse. We don't know how many ships see the lighthouse and turn away. We only see the ones that don't."
An attorney for a nonprofit working to reform Tennessee's death penalty also spoke and said the death penalty carries the inherent risk of executing an innocent person. She said 197 people have been exonerated from death row, including three from Tennessee. She also said children could be coerced into making false accusations, especially in cases such as custody disputes or those involving caregivers with mental health issues.
She also said that death penalties do not have a deterrent effect, and said it could incentivize perpetrators to kill children after raping them. She also said testing the law would be costly to the state, possibly having to spend money prosecuting a decades-long case only to find that the law is unconstitutional.
Other attorneys warned that a child's testimony may not stand up to examination in court, and may not be enough evidence to reliably convict a person. A total of four people spoke against the bill during the March 26 committee meeting.
Yager said his bill was meant to give prosecutors another tool to prosecute people charged with raping children.
The House version was placed behind the budget on Feb. 7.
