September 24, 2013 By Stephen Klarich

In a case that shocked the nation, Ariel Castro of Cleveland, Ohio was convicted in July of the brutal and repeated rape of three women he had held captive in his home for a decade. If the Ohio legislature approves a new bill, the state will expand the use of the death penalty to sex offenses that don’t result in the death of the victim under certain circumstances.

Ohio State Representative John Becker recently introduced legislation that would allow for the death penalty in cases of aggravated rape, aggravated sexual battery and aggravated unlawful sexual conduct with a minor. A defendant must have a previous qualifying sex crime conviction and there must be aggravating circumstances in order for prosecutors to seek the death penalty.

The Ariel Castro Case

Death Penalty to Sex Offenses
Legislation in Ohio could expand the use of the death penalty to sex offenses. If you are charged with a sex crime, contact an experienced criminal defense attorney immediately.

“There’s always cases out there about rapists and child molesters. I’ve always had this opinion that for some of those people there is no cure. They just need to be put to death,” says Rep. Becker, seeking justification for proposing the ultimate penalty for a crime other than first-degree murder or treason. (Associated Press, Aug. 17, 2013)

The prosecution in this case originally wanted to seek the death penalty against Castro because he allegedly forced one of the women to miscarry after he got her pregnant. The resulting death of the fetus was essentially murder, according to prosecutors, justifying the death penalty. However, that sentence was taken off the table when Castro agreed to plea guilty to his crimes.

Castro was sentenced on Aug. 1 to life in prison plus 1,000 years on his guilty plea to 937 counts, including kidnapping and rape. Castro, 52, was found hanging by a bed sheet – an apparent suicide – Sept. 3.

“Prosecutors would be able to use the death penalty threat as a tool for plea bargain negotiations,” Becker said. (Associated Press, Aug. 17, 2013) Because Castro did not have a previous, qualifying sex offense conviction, he would not have faced the death penalty under Rep. Becker’s new legislation, should it become law.

 Expanding the Death Penalty to Sex Offenses

Rep. Becker’s proposed changes to the Ohio Revised Code (that state’s version of the Penal Code) authorizes the death penalty for crimes other than first-degree murder. The new legislation would include the following crimes as being death penalty eligible:

  • Aggravated rape
  • Aggravated rape of a child
  • Aggravated sexual battery
  • Aggravated sexual battery of a child
  • Aggravated unlawful sexual conduct with a minor

If approved by the Legislature and signed into law by Ohio Governor John R. Kasich, these new provisions to the Ohio Revised Code are scheduled to take effect on Jan. 1, 2014.

However, any law that allows prosecutors to seek the death penalty in criminal offenses that do not result in the death of the victim will almost assuredly be challenged as an unconstitutional violation of the 8th Amendment, as the United States Supreme Court has previously ruled.

Can the Death Penalty be Imposed for a Rape Crime?

In a 2008 Supreme Court decision, Kennedy v. Louisiana 554 U.S. 407 (2008), the United States Supreme Court ruled that the death penalty could not be imposed on a child rapist if the child did not die as a result of the crime. Defendant Patrick Kennedy was accused of raping his 8-year-old stepdaughter. Due to the aggravating circumstances of the crime, Kennedy was convicted and sentenced to death. At the time, Louisiana law, along with six other states, authorized the death penalty for anyone convicted of raping a child under 12. That sentence was overruled by the Supreme Court.

Why Did the Supreme Court Prohibit the Death Penalty for Child Rape?

The Supreme Court decided that, though the crime of raping a child is “devastating” in the harm done to the victim, this did not justify the same punishment as first-degree murder. The 8th Amendment prohibits any punishment that is excessively “cruel and unusual,” and which is “grossly disproportionate” to the crime. The Supreme Court held that the death penalty could not be applied to crimes that did not result in the death of the victim, unless that crime was committed against the state (such as treason or espionage).

Can California Impose the Death Penalty for a Sex Crime?

California cannot impose the death penalty for a sex crime. However, in 2010, Chelsea’s Law went into effect in California which mandates that adult defendants convicted of certain aggravated sexual offenses against children are subject to life in prison without the possibility of parole. Juveniles under the age of 18 who are convicted under Chelsea’s law face 25 years to life in prison.

The law was named for 17-year-old Chelsea King, who was murdered by registered sex offender John Gardner III. Gardner also admitted to killing 14-year-old Amber Dubois. The “one-strike” provision applies to forcible sex crimes against minors that include aggravating factors, such as the victim’s age or whether the victim was bound or drugged (CNN, Sept. 10, 2010).

John Gardner pled guilty to three murders in 2010, receiving three consecutive life sentences. By agreeing to a plea bargain, Gardner was able to avoid the death penalty. Assembly Bill 1844 (“Chelsea’s Law”) was quickly approved by the California Legislature and signed into law in September 2010 by Governor Arnold Schwarzenegger in response to public outrage to Gardner’s crimes.

Chelsea’s Law applies to anyone convicted of forcible sexual assault of a child under the age of 14 with special circumstances. Violent sexual predators are also subject to involuntary civil commitment to the California State Department of Mental Health upon their release from prison. Additionally, Chelsea’s Law requires lifetime parole for certain violent sexual predators, assuming they ever get released from a civil commitment.

How the Sex Crimes Attorneys at Wallin & Klarich Can Help You

Anyone charged with an unlawful sex crime such as rape, sexual battery or unlawful sexual conduct with a minor needs to hire an experienced sex crimes defense attorney right away. At Wallin & Klarich, our attorneys have over 30 years of experience successfully representing our clients facing charges of a sex offense.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, we have a location near you where we can help. Without a doubt, the attorneys at Wallin & Klarich will work tirelessly to get you the best possible result in your case.

Call us today at (877) 466-5245 for a free telephone consultation. We will get through this together.

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