TN Senate passes bill to allow death penalty for child rape

Republicans in the Tennessee Senate on Tuesday approved a measure allowing the death penalty for defendants convicted of raping a child — in an effort to challenge a 2008 U.S. Supreme Court ruling.

Senate Bill 1834 would allow capital punishment for adults convicted of raping a child, with certain aggravating factors. Companion legislation in the House will be taken up after the legislature passes a budget.

Senators approved the bill in a vote of 24 to 5 on Tuesday. Sen. Todd Gardenhire, R-chattanooga, was the lone Republican to vote against the bill. Sens. Mark Pody, R-lebanon and Kerry Roberts, R-springfield – though both in the Senate chamber – did not vote.

“We're not violating the constitution: we're challenging a ruling,” said Sen. Janice Bowling, R-tullahoma.

Only seven other states have passed similar laws permitting capital punishment for rape of a child under 12, which each chip away at Kennedy v. Louisiana. In that 2008 case, the U.S. Supreme Court struck down as unconstitutional a Louisiana law that allowed the death penalty in child rape cases that do not involve the victim's death, finding that it amounts to “cruel and unusual punishment.”

Tennessee is one of 27 states that allows capital punishment, and currently does not allow capital punishment for non-homicide crimes. No one has been executed in Tennessee for any crime other than first-degree murder since the 1950s.

Roberts, who serves as chair of the Senate Government Operations Committee, offered an amendment aimed at strengthening the state's standing to challenge the Supreme Court ruling. Fellow Republicans voted it down.

“I'm absolutely not against the death penalty for the rape of a child. But if we think for one minute that the bill in front of us can overturn Kennedy, the greater danger is that the bill in front of us will reaffirm Kennedy,” Roberts said.

Roberts said the bill as written is “blatantly unconstitutional,” and, as such, questioned whether Tennessee Attorney General Jonathan Skrmetti would defend it in the courts in the effort to bring the case to the U.S. Supreme Court.

On the other side, Democrats argued the effort could lead to less reporting of sexual offenses and fewer perpetrators being brought to justice because of heightened difficulties reporting and prosecuting capital cases.

“The greatest tragedy in the world of sexual abuse cases is how many of them don't come to light. How many people suffer in silence for years and decades without justice from institutions for families,” said Sen. Jeff Yarbro, D-nashville. “I believe that what we're doing here is potentially pushing further into the shadows.”

Vivian Jones covers state government and politics for The Tennessean. Reach her at vjones@tennessean.com or on X at @Vivian_e_jones.