Child Advocates Warn This Death Penalty Bill Could Silence Victims

Last updated 2 hours ago. Our resources are updated regularly but please keep in mind that links, programs, policies, and contact information do change.

For every 1,000 sexual assaults committed in the United States, roughly 50 to 57 reports lead to an arrest, depending on the source and methodology used. Not convictions. Arrests. The gap between what happens to children and what the legal system ever learns about it is not a small crack. It is a massive divide.

Supporters of capital punishment for child sex offenses argue that the bill sends a clear moral signal and permanently removes the worst offenders from society. They also argue it shows a social commitment that shapes norms, and that even a rarely-used punishment still reaches the offenders it does convict. Critics argue that a punishment harsh enough to stop victims from reporting may lower overall child safety by pushing abuse further underground.

A bill circulated in Wisconsin in late February 2026 by State Rep. Elijah Behnke of Oconto County and State Sen. Chris Kapenga of Waukesha County sits at the center of that tension. Their proposal would bring back capital punishment in Wisconsin for certain child sex offenses, making it the first execution-eligible crime in the state since 1853. The bill’s moral logic is not hard to follow: these are among the worst things one human being can do to another. The law should say so in the strongest possible terms.

But a group of child safety advocates, social workers, and trauma researchers has raised a specific, evidence-based objection that is harder to dismiss than it might first appear. They argue that a law meant to protect children could, in practice, make children less safe by giving them one more reason not to tell anyone what happened to them.

This is not a fringe position. It was central to the U.S. Supreme Court’s reasoning in Kennedy v. Louisiana, the 2008 decision that currently makes this bill unable to be enforced as written. And it has become more urgent as Wisconsin joins at least five other states since 2023 in passing or advancing similar legislation. Each one is betting that the legal ground has shifted enough to make the gamble worthwhile.

Kennedy v. Louisiana: The Precedent Standing in the Way

In 1998, a Louisiana man named Patrick Kennedy raped his eight-year-old stepdaughter. The injuries were serious enough to require emergency surgery. Louisiana law permitted prosecutors to seek the death penalty for child rape, and a jury sentenced Kennedy to death. When his case reached the Supreme Court, the question was specific: could the Eighth Amendment’s prohibition on cruel and unusual punishment allow a state to execute someone for a rape that did not result in the victim’s death?

In a 5-4 decision on June 25, 2008, the Court said no. Writing for the majority, Justice Anthony Kennedy held — paraphrased in the Court’s own summary — that the Eighth Amendment bars states 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. The reasoning was built on two main points.

First, only six states at the time permitted capital punishment for child rape, which the Court read as a national consensus against the sanction. Second, the Court applied the proportionality principle, the idea that punishment must fit the crime. The Eighth Amendment requires punishment to match the crime, and only murder, historically, has called for the ultimate penalty. (For a fuller account of how courts developed the proportionality doctrine and the legal test the Court uses to decide whether a punishment has become unacceptable to modern society, see our earlier coverage of Eighth Amendment limits on capital punishment.)

The four dissenters, Chief Justice John Roberts and Justices Scalia, Thomas, and Alito, argued that no genuine consensus existed. They also argued that the majority was substituting its own policy preferences for the choices of elected legislatures.

That dissent matters now because Roberts, Thomas, and Alito are still on the Court. They have been joined by three newer appointees: Justices Gorsuch, Kavanaugh, and Barrett, whose views on this specific question have not been fully tested.

In September 2025, a coalition of state attorneys general sent a letter to the U.S. Attorney General describing Kennedy v. Louisiana as “wrongly decided” and calling for the Supreme Court to reconsider it. That letter is a signal, not a ruling. But it shows how seriously some prosecutors take the possibility of overturning the precedent.

Whether the current Court would do so remains genuinely uncertain, even to close Court observers. The proportionality principle is deeply rooted in decades of court rulings on the Eighth Amendment. Dropping it would require the Court to reshape its rules around capital punishment far beyond the child rape context.

One thing is not uncertain: any Wisconsin prosecution under this bill would face an immediate constitutional challenge. Any conviction would almost be put on hold while that challenge worked its way to the Supreme Court. The bill cannot be enforced under current law. Its sponsors appear to know this.

Wisconsin’s 173-Year Abolitionist Identity

Most states that have abolished the death penalty did so recently, with reluctance, and often after a wrongful conviction made the political cost of keeping it too high. Wisconsin is different. It abolished capital punishment in 1853, becoming the first jurisdiction in the world to do so permanently, and it has never looked back.

In 1851, a Kenosha man named John McCaffary was publicly hanged for drowning his wife in a backyard cask. More than 2,000 people gathered to watch. Among them was Christopher Latham Sholes, a state legislator and editor of the Kenosha Telegraph, who was reportedly disgusted by the scene.

Sholes became the leading voice for abolition. He argued that public executions did not deter crime but instead made those who watched them more callous. His argument foreshadowed what would take another century to become mainstream in criminology: that the brutalizing effect of state executions may outweigh their deterrent value.

Sholes, joined by state Sen. Marvin Bovee of Summit, pushed through the Death Penalty Repeal Act, which Governor Leonard Farwell signed into law on July 10, 1853. Wisconsin has kept that abolition through every subsequent constitutional revision and legislative session for 173 years. This includes a period in 2006 when 55 percent of voters indicated support for reinstatement in a non-binding public vote. The legislature still refused to act. That staying power suggests something more than passing political sentiment is at work.

The current bill would reverse all of that. Whether it will even receive a committee hearing is unclear. Wisconsin Democrats flipped 14 legislative seats in 2024 under newly redrawn maps and could achieve legislative majorities in one or both chambers in a future legislative session. Republicans hold slim majorities in both chambers as of early 2026. But the memo circulated to fellow legislators asking them to co-sign the bill was sent out in late February, close to the end of the legislative session. That timing makes passage in the current session unlikely.

The Silencing Problem: What Research Says About Reporting and Punishment

The obvious argument for harsh punishment is that it deters perpetrators. If you face the death penalty for raping a child, you will not rape a child. But child sexual abuse does not work the way that logic assumes.

Approximately 34 percent of reported child sexual abuse cases involve a family member as the perpetrator. An additional 59 percent involve acquaintances, according to RAINN’s analysis of child sexual abuse data, meaning known perpetrators — family and acquaintances combined — account for roughly 93 percent of cases. Fewer than 10 percent of cases involve a stranger.

The typical offender is not a predator hiding outside the school fence. It is a father, a stepfather, an uncle, a coach, a family friend. And the typical child victim is not deciding whether to report a stranger. She is deciding whether to tell someone about a person she may still love, who may be the family’s main breadwinner, whose arrest would turn everything she knows upside down.

Research consistently shows that children do not disclose abuse in isolation. They weigh likely outcomes. ChildUSA’s research on disclosure barriers documents that children delay or avoid telling anyone about abuse when they fear the consequences. Those consequences include fear that the family will break apart, that a parent will be angry, or that the offender will face severe punishment.

The harsher the potential consequence, the higher that barrier becomes. Adding execution to the list of possible outcomes does not make a child more likely to tell a trusted adult. It gives her one more reason to stay silent.

This concern was not created by death penalty opponents after the fact. It was presented directly to the Supreme Court in Kennedy v. Louisiana by a coalition that included the National Association of Social Workers, the Louisiana Foundation Against Sexual Assault, the Texas Association Against Sexual Assault, and the National Alliance to End Sexual Violence.

Their brief argued that allowing capital punishment for child rape would worsen the already severe problem of underreporting. It also argued that such a law would increase the incentive for offenders to kill their victims. Someone facing execution for rape might figure that eliminating the only witness reduces his risk. The Court addressed these concerns explicitly in the majority opinion, treating them as relevant to the proportionality analysis.

To be fair about the limits of the evidence: no broad study has directly compared reporting rates in jurisdictions with and without capital eligibility for sex offenses, because such laws are too recent and too rare to generate that data. The behavioral patterns are drawn from broader research on disclosure psychology, not measured directly. Supporters of the bill are not wrong to note that this is a gap.

But the core idea, that children weigh consequences before disclosing, is among the most repeated findings in research on how trauma survivors disclose abuse. The absence of a direct study does not mean the concern is speculative. It means the experiment has not been run yet. Wisconsin’s children would be among the subjects.

There is also the question of what happens to young victims who do report, and whose cases go to a capital trial. Capital proceedings are not like ordinary criminal trials. They take years, sometimes decades. They also require the victim to testify repeatedly through trial, the sentencing portion of the trial (called the penalty phase), and appeals.

Trauma-informed victim advocates have raised concerns about the secondary harm of putting a child through that process. This concern is greater when the offender is a family member and the child’s feelings about the case are complicated from the start.

The Strategy Behind Laws That Conflict With Supreme Court Precedent

Wisconsin did not invent this approach. It borrowed it, almost directly, from Alabama.

In February 2026, Alabama Governor Kay Ivey signed the Child Predator Death Penalty Act into law. The act makes first-degree rape, first-degree sodomy, and first-degree sexual assault of victims under age 12 capital offenses that can be punished by death or life without parole. Governor Ivey cited a Bibb County case in which eight individuals were arrested in 2025 for the rape, trafficking, and sexual torture of at least 10 children, some as young as three years old. The horror of that case is real. The public outrage was warranted.

But when the Alabama House debated the bill, Rep. Matt Simpson, the bill’s sponsor and a former prosecutor, acknowledged to his colleagues that the legislation conflicted with Supreme Court precedent. His argument was strategic: in 2008, only six states allowed capital punishment for child rape, and the Court used that small number to declare a national consensus against the sanction. If more states pass such laws now, the consensus argument weakens and the Court might reconsider. Each state that passes a bill like this is, in effect, casting a vote in a long-running effort to change the state-by-state count the Court uses to measure national consensus.

The following table shows where that campaign currently stands.

Source: Death Penalty Information Center tracking of child sex offense capital statutes. Note: “Enacted or advancing” reflects reported legislative activity; precise enactment dates for Idaho, Arkansas, and Oklahoma require independent verification.

There is a logical problem with the “build consensus by passing laws” strategy that some constitutional scholars have identified. If states are passing these laws mainly to create the appearance of consensus in order to persuade the Supreme Court to overturn a precedent, the consensus is not genuine. It is coordinated. Scholars skeptical of the strategy argue that the Court’s “evolving standards of decency” doctrine is supposed to measure real shifts in societal values. It is not meant to measure legislative campaigns designed to manipulate the Court’s measurement.

Other constitutional scholars and legal historians push back on that critique, however. They argue that coordinated legislative campaigns to shift constitutional doctrine are a normal and accepted feature of American governance. They point, for example, to the strategic legal challenge by Lambda Legal that eventually led the Court to overturn Bowers v. Hardwick in Lawrence v. Texas, proceeding through Texas courts before reaching the Supreme Court. That process was openly strategic and openly aimed at changing the constitutional math.

On this view, the Court’s “evolving standards” doctrine has never required that legislative change be uncoordinated or spontaneous. It requires only that legislatures reflect the values of their voters, and legislators in these states plausibly do. Whether the current Court would distinguish between natural and coordinated consensus, or would simply count the states and assess the direction of change, is a question that has not been answered. Reasonable constitutional scholars disagree about it.

None of these laws have been tested in court yet. No prosecution has been launched under any of them. Alabama’s law is the most recent and most prominent. It has not yet produced a case that could bring the constitutional question before the Supreme Court. Until one does, the whole effort sits in a kind of legal limbo. These are laws that exist on paper but can’t be enforced, waiting for a case that will either prove the strategy right or confirm that Kennedy v. Louisiana still holds.

Sponsors’ Arguments and Child Advocates’ Objections

In the memo circulated to fellow legislators asking them to co-sign the bill, Behnke and Kapenga did not mince words. “These are monstrous, vile and unforgivable acts, and nothing can undo the devastation created for that child and their family,” the memo read.

Sen. Kapenga went further in an online newsletter, arguing that “Jail time doesn’t scare these people, but the death penalty will. Passing legislation like this will save innocent lives.”

The strongest academic case for the bill’s protective logic rests on two separate arguments that Kapenga’s framing only partly captures. The first is general deterrence, the claim that harsher penalties reduce the rate of crime by raising its expected cost. The second, and arguably stronger, argument is incapacitation. An executed offender cannot reoffend, ever.

This matters specifically for child sex offenses because reoffense rates among convicted offenders are a documented concern. Research shows child sex offenders have lower overall reoffense rates compared to many other criminal categories, though they show higher rates of sexual-specific reoffending compared to non-sexual criminals. Research shows averages of under four victims per offender before detection, though some cases reach far higher. Legal scholars who support the bill’s logic argue that even if capital punishment deters no one at the margin, permanently removing the most severe offenders from the population prevents future victims with certainty.

Some researchers further distinguish between deterrence of first-time offenders, where the evidence is genuinely weak, and incapacitation of identified repeat offenders, where the calculation is different. Supporters also argue that the reporting-deterrence concern, while real, is itself uncertain in size. They contend that the sure protection of incapacitation should not be given up for an uncertain behavioral prediction.

That incapacitation rationale is harder to argue against than the general deterrence claim, and critics of the bill engage it less directly than it deserves. On deterrence, however, the evidence is more disputed than the confident phrasing of the bill’s sponsors suggests. Decades of criminological research on capital punishment’s deterrent effect have produced mixed results, with multiple rigorous studies finding no consistent deterrent effect and others finding modest effects in specific contexts.

One line of research found some evidence that capital eligibility for child murder (not sexual abuse) was linked to reductions in child homicide rates. But even that research is challenged on the grounds of how the study was conducted. The honest answer is that nobody knows with confidence whether making child rape a capital offense would deter child rape. The people most affected by that uncertainty are children.

The organizations opposing such bills are not the usual death penalty abolition groups. Darkness to Light, which runs evidence-based child sexual abuse prevention programs, has raised concerns about the reporting-deterrence dynamic. The national coalition Keep Kids Safe, which includes Together for Girls and the Monique Burr Foundation for Children, stresses that policies that accidentally reduce reporting undermine child safety. These are practitioners focused on child protection outcomes, not ideological opponents of capital punishment in the abstract. Their objection is specific: this particular policy works against its stated goal.

Victims’ rights organizations present a more complicated picture. Some, focused on maximizing punishment severity, support such bills as a fitting recognition of victims’ suffering. Others, particularly those working with adult survivors of childhood sexual abuse, have raised concerns about the reporting-deterrence argument. Trauma-informed victim advocacy has long recognized that victim healing and justice are not always the same as maximum punishment. This is especially true when the perpetrator was a family member and the survivor is being asked to take part in a capital proceeding that could extend for decades.

The bill’s supporters make a case that deserves fair engagement. On retributive grounds, legal scholars in the tradition of Michael Moore and Stephen Morse have argued — Moore from a retributive framework, Morse from an expressive one — that punishment matched to the moral gravity of the offense has independent value apart from its deterrent or incapacitative effects. On this view, a society that refuses to impose its ultimate sanction on the rape of a child is making a statement about relative moral weight that many victims and their families find intolerable. Advocacy organizations including those affiliated with the Enough Abuse Campaign’s national coalition have emphasized that survivors deserve to see the law reflect the full severity of what was done to them.

On incapacitation: supporters note that the reporting-deterrence concern, however real overall, is a probability-based claim about population behavior. The protective effect of removing a convicted offender permanently, by contrast, is certain. They further argue that the concern cuts both ways. If the threat of severe punishment causes some offenders to hold back from acting in the first place, those non-events never appear in reporting statistics. They still represent real children who were never harmed.

Finally, supporters contend that calling the reporting-deterrence effect established science overstates the evidence. No direct study has measured reporting rates across jurisdictions with and without capital eligibility for these offenses, because such laws are too new and too rare. The behavioral mechanism is plausible, but its size is genuinely unknown. The tension between justice as a moral statement, justice as a practical tool for keeping children safe, incapacitation, and concern about reporting is not resolved by treating any one of these considerations as the deciding factor.

Three Obstacles Between the Bill and Enforcement

Assume for a moment that the bill passes. What happens next is more complicated than most coverage suggests.

The first hurdle is legislative. The bill needs to pass both chambers and be signed by the governor. Given that the session was reportedly drawing to a close as of late February 2026, and the bill had not yet cleared committee, passage in the current session is unlikely. A future session is possible, but the partisan math is shifting. Wisconsin Democrats flipped 14 seats in 2024 and could hold majorities in one or both chambers in a future legislative session. Death penalty reinstatement is not a Democratic priority.

The second hurdle is the state constitution. Wisconsin’s constitution contains protections against cruel and unusual punishment, as do many state constitutions, though the precise language and scope of those protections vary by state and not all states provide equivalent protections. Even if the U.S. Supreme Court were to overturn or narrow Kennedy v. Louisiana, the Wisconsin Supreme Court would almost need to address whether reinstating capital punishment violates the state constitution on its own. State constitutional protections can be broader than federal ones. Wisconsin courts would not be bound by a federal ruling that merely allows states to enact such laws.

The third hurdle is the federal constitutional challenge, which would be immediate and would almost stay any conviction pending resolution at the Supreme Court level.

There is also a practical problem that tends to get overlooked. Wisconsin has not executed anyone since 1851. The state has no execution chamber, no set procedure, no trained personnel, and no established method. The bill as circulated reportedly includes requirements that the Department of Corrections develop execution rules and methods within six months of enactment.

That is a major undertaking for a state that has had no reason to think about these logistics for 175 years. Other states that have recently reinstated or expanded capital punishment have faced serious practical problems. These include trouble obtaining execution drugs and finding personnel willing to carry out executions. Wisconsin would be starting from scratch.

How the Supreme Court Might Revisit Kennedy v. Louisiana

The buildup of state laws challenging Kennedy v. Louisiana is not accidental. It is a coordinated legal strategy, and it may eventually work. A formal request for the Supreme Court to take up the case could come once one of these laws generates a prosecution and conviction. That chain of events has not yet begun. The current Court’s makeup creates genuine uncertainty about whether the precedent would survive a direct challenge. Three Kennedy dissenters are still sitting. Three newer justices have not fully established their views on this specific question.

But overturning Kennedy would not be a narrow ruling. The proportionality principle that underlies it runs through decades of Eighth Amendment jurisprudence, including cases on juvenile sentencing, mandatory minimum sentences (required prison terms set by law), and the death penalty for felony murder (when someone is killed during another crime). (Our earlier analysis of juvenile life sentences and the Eighth Amendment covers how the Court has applied proportionality reasoning across different sentencing contexts.) Dismantling proportionality to allow the death penalty for child rape would send ripples through all of those areas. That may be why even some conservative justices who were skeptical of Kennedy‘s specific holding have not signaled a desire to abandon proportionality doctrine entirely.

The more likely path, if the Court were to revisit the issue, might be a limited ruling. Such a ruling might find that the way Kennedy counted states to determine national consensus was flawed, without fully abandoning the rule that punishment must fit the crime. It would apply only to this specific question without changing broader legal principles. That would leave the door open for states to enact such laws while preserving the broader doctrine. Whether that distinction would hold in practice is a question for future litigation.

What makes this moment genuinely important is that the answer is not certain in advance. The Court that decided Kennedy in 2008 no longer exists in its 2008 form. The states passing these laws are not making a careless bet. They are making a calculated one, and the calculation might pay off.

If it does, the empirical debate that child advocates and bill supporters have been having moves from academic argument to real-world reality. Supporters envision a world in which the most severe offenders, those who have victimized multiple children over years, are permanently removed from the population. They also envision a world in which the law’s clear moral signal shapes community norms around child protection. In that world, convicted offenders face a consequence that matches the gravity of what they did.

Critics envision a world in which the higher stakes of disclosure cause more children to stay silent. They foresee more perpetrators escaping prosecution entirely, and more abuse continuing undetected within families where a child cannot bring herself to start a process that might end in an execution.

Wisconsin has 173 years of evidence that it can hold a steady legislative position on this question even when public sentiment pushes the other way. Whether that record holds is a debate the state is now being forced to have.

Our articles make government information more accessible. Please consult a qualified professional for financial, legal, or health advice specific to your circumstances.