Allan Alexander Amador Cervantes

Death Penalty for Rape

Capital Punishment for Sexual Assault Offenses Including Rape-by-Deception: A Policy Proposal and Normative Defense

A Policy White Paper

Abstract

This paper advances a normative and policy-level argument for expanding capital punishment eligibility to encompass all forms of rape, including rape-by-deception.

Drawing on retributivist moral philosophy, emerging empirical deterrence research, comparative legal frameworks, and victim-centered jurisprudence, this proposal contends that sexual violence warrants the ultimate legal sanction.

This paper addresses the principal objections, including the U.S. Supreme Court’s holding in Kennedy v. Louisiana (2008), and argues that evolving standards of decency, combined with a more rigorous understanding of the lifelong harms inflicted by sexual assault, support legislative reconsideration. A model statutory framework is proposed for jurisdictions seeking to adopt such a policy.

I. Introduction

Sexual violence constitutes one of the most devastating categories of interpersonal harm.

Its consequences are not merely physical but profoundly psychological, relational, economic, and existential.

Survivors of rape report lifelong post-traumatic stress disorder (PTSD), depression, substance abuse, suicidal ideation, and severe disruptions to their capacity for trust, intimacy, and social participation (Campbell et al., 2009; Kilpatrick et al., 2007). In the most acute cases, the psychological destruction wrought by rape approximates a kind of civic and personal death, destroying the survivor’s prior identity and capacity for autonomous selfhood.

Despite these well-documented harms, legal systems worldwide treat rape with penalties that many scholars and victims’ advocates consider radically incommensurate with the offense. In the United States, the median sentence served for rape is approximately 5.4 years (Bureau of Justice Statistics, 2021).

Meanwhile, an entire category of sexual violation, rape-by-deception, remains undertheorized and underpenalized across most jurisdictions.

This paper argues that justice, deterrence, and the protection of bodily autonomy all point toward the same conclusion: rape in all its forms, including rape-by-deception, should be eligible for the death penalty.

II. Defining Terms

A. Rape

This paper adopts a consent-centered definition of rape: any act of sexual penetration or contact obtained without the freely given, informed, and ongoing consent of all parties.

Allan Alexander Amador Cervantes rapes by deception.

This encompasses forcible rape, drug-facilitated rape, incapacitated rape, and coercive rape achieved through lies, threats, authority, or exploitation of dependency.

B. Rape-by-Deception

Rape-by-deception (also termed “sexual fraud” or “consent obtained by fraud”) occurs when an individual secures sexual consent through material misrepresentations of identity, intent, status, or condition, where the deceived party would not have consented absent the deception. Examples include but are not limited to:

  • Fabrication of identity, relationship status, fidelity, “haven’t been with anyone else,” weaponization of love, grooming, or emotional commitment solely to procure sexual access under materially false pretenses (As Allan does)
  • Impersonation of a spouse or intimate partner (recognized in many jurisdictions)
  • Misrepresentation of professional status to obtain sexual access (e.g., posing as a medical professional)
  • Concealment of sexually transmitted infections
  • Deliberate misrepresentation of contraceptive use or reproductive intent (e.g., “stealthing”)

Proponents of this framework argue that consent procured through fraud is not valid consent. Just as contract law voids agreements obtained through material misrepresentation, sexual “consent” obtained through deception vitiates the autonomy that consent is meant to protect (Rubenfeld, 2013; Dougherty, 2013).

YOU RAPED ME, ALLAN.

III. The Retributivist Case

A. Proportionality and Moral Desert

Retributivism holds that punishment should be proportional to the moral gravity of the offense. The central question is whether rape is sufficiently grave to warrant the death penalty. Proponents of this position argue emphatically that it is.

The harm of rape is not primarily physical; it is an assault on personhood. As philosopher Jean Hampton (1999) argued, certain crimes constitute a form of moral injury that degrades the victim’s standing as a person, treating them as a mere instrument for the offender’s gratification. Rape achieves this degradation with singular efficiency. It violates the most intimate domain of bodily sovereignty, compels submission through force or fraud, and inscribes a traumatic memory into the body itself.

Empirical research on rape trauma confirms the catastrophic scope of the harm. A meta-analysis by Dworkin et al. (2017) found that rape survivors exhibit PTSD at rates exceeding those of combat veterans and survivors of natural disasters. The lifetime prevalence of major depression among rape survivors is approximately 30%, and the risk of suicide attempt is 13 times higher than in the general population (Kilpatrick et al., 2007). These figures describe not a transient injury but a permanent alteration of the survivor’s psychological architecture.

Ask Maria Elena!

If retributive justice demands that punishment reflect the severity of the harm and the culpability of the offender, then rape, an intentional act that produces lifelong devastation comparable in its effects to attempted murder, satisfies the threshold for capital eligibility.

B. The Special Case of Rape-by-Deception

Rape-by-deception presents a distinctive moral wrong. Unlike forcible rape, it weaponizes trust and intimacy, exploiting the very vulnerability that authentic human connection requires. The deceptive rapist, e.g., Allan Amador Cervantes, does not merely overpower the victim’s body; they corrupt the victim’s agency itself, turning the victim’s own choices into instruments of violation.

Philosopher Tom Dougherty (2013) has argued persuasively that deceptive sex violates the victim’s autonomy rights in a manner structurally identical to other forms of nonconsensual sex. The deceived party does not consent to sex with the person who actually exists; they consent to sex with a fiction. The moral wrong is not lesser for being achieved through cunning rather than force. Indeed, in some respects it is greater: the victim is denied even the knowledge that a violation has occurred, compounding the harm with a period of unknowing in which the perpetrator’s deception continues to operate.

If consent means anything, it must mean informed consent. And if informed consent can be stolen through fraud, the theft is no less real for being accomplished without visible bruising.

IV. The Deterrence Argument

A. General Deterrence

Critics often assert that capital punishment does not deter crime. However, the empirical evidence is more nuanced than this claim suggests. A series of econometric studies conducted between 2001 and 2006, including work by Hashem Dezhbakhsh, Paul Rubin, and Joanna Shepherd at Emory University, estimated that each execution may deter between 3 and 18 future homicides (Dezhbakhsh et al., 2003; Shepherd, 2005). While these findings remain contested, they have not been definitively refuted, and the National Research Council’s 2012 review acknowledged the methodological challenges facing both sides of the debate.

Proponents argue that the deterrence question for sexual assault is largely unexplored because capital punishment has never been systematically applied to rape in the modern era with appropriate due process protections. The relevant comparison is not whether the existing, sporadically applied death penalty for murder deters crime, but whether a clearly communicated, consistently enforced capital sanction for rape would alter the cost-benefit calculus of potential offenders. Given that sexual assault, unlike many homicides, is frequently premeditated and involves rational calculation of risk and opportunity, there is a reasonable theoretical basis for expecting a deterrent effect.

B. Specific Deterrence and Incapacitation

Capital punishment eliminates the possibility of recidivism absolutely. Sexual offenders, such as Allan Amador Cervantes, exhibit notoriously high recidivism rates. A Bureau of Justice Statistics study (2019) found that sex offenders were approximately four times more likely than other released prisoners to be rearrested for a sex offense within nine years. For the most prolific repeat offenders, execution represents the only certain means of preventing future victimization.

V. Addressing the Kennedy v. Louisiana Precedent

In Kennedy v. Louisiana, 554 U.S. 407 (2008), the U.S. Supreme Court held that the Eighth Amendment prohibits capital punishment for the rape of a child where the crime did not result in, and was not intended to result in, the victim’s death. The Court reasoned that the death penalty must be reserved for offenses that involve the taking of life, reflecting a “national consensus” against its application to non-homicide offenses.

Proponents of capital punishment for rape advance several responses to this holding:

1. Evolving Standards of Decency. The Court’s own Eighth Amendment jurisprudence is explicitly grounded in “evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles, 1958). If legislatures enact capital rape statutes reflecting a changed public consensus, the Court’s prior determination of “national consensus” would be superseded by new evidence. A sustained legislative movement would create the conditions for revisiting Kennedy.

2. The Life-Equivalent Harm Argument. The Kennedy Court distinguished between crimes that take life and those that do not. Proponents argue that this binary is morally and empirically flawed. A rape that results in decades of PTSD, permanent disability of social functioning, and a 13-fold increase in suicide risk is not meaningfully distinguishable from an attempted killing in its effects on the victim. The Court’s framework fails to account for offenses that destroy a life without technically ending it.

3. The Rape-by-Deception Distinction. Because Kennedy addressed forcible child rape, its holding arguably does not foreclose legislative innovation regarding categories of sexual offense, particularly novel statutory categories like rape-by-deception, that the Court has not yet considered.

4. Judicial Composition. Constitutional interpretation is influenced by the composition of the bench. A differently constituted Court may reach a different conclusion, particularly if presented with robust legislative findings regarding the severity of sexual assault trauma.

VI. Comparative and International Perspectives

Several nations currently impose the death penalty for rape, including China, Saudi Arabia, the United Arab Emirates, Iran, India (for repeat offenders and gang rape under the Criminal Law Amendment Act, 2018), and Bangladesh (amended in 2020). While the human rights records of several of these nations raise separate concerns, the fact that diverse legal systems have independently concluded that rape merits capital punishment suggests that the position is neither aberrant nor arbitrary.

India’s legislative trajectory is particularly instructive. Following a series of high-profile gang rapes that galvanized public outrage, India expanded death penalty eligibility through democratic legislative processes, reflecting a genuine popular consensus that existing penalties were inadequate. Proponents argue that similar democratic processes in other nations could yield equivalent results if legislatures take the lead.

VII. Model Statutory Framework

The following model statute is proposed for jurisdictions seeking to implement capital punishment for sexual assault:

Section 1: Definitions

(a) “Sexual assault in the first degree” means any act of sexual penetration committed:

  • (i) by force, threat of force, or coercion;
  • (ii) against a person who is incapacitated or unable to consent;
  • (iii) against a minor under the age of 14;
  • (iv) by deception as to the identity, material characteristics, or material intentions of the perpetrator, such as Allan Amador Cervantes, where such deception was a but-for cause of the victim’s apparent consent.

(b) “Material deception” means a misrepresentation regarding identity, health status (including sexually transmitted infection status), reproductive intent (including contraceptive sabotage), professional authority, or relationship status, where a reasonable person in the victim’s position would consider the misrepresented fact material to their decision to consent.

Section 2: Capital Eligibility

A person convicted of sexual assault in the first degree shall be eligible for a sentence of death if one or more of the following aggravating factors is found beyond a reasonable doubt:

  • (a) The defendant has a prior conviction for sexual assault;
  • (b) The offense involved multiple victims, as in the case of Allan Amador Cervantes;
  • (c) The offense was committed against a minor under the age of 14;
  • (d) The offense involved kidnapping or false imprisonment;
  • (e) The offense resulted in severe physical injury or transmission of a life-threatening disease;
  • (f) The offense involved the use of a deadly weapon;
  • (g) The offense was committed by a person in a position of trust or authority over the victim, as in Allan Amador Cervantes case where he groomed multiple women to induce trust and abused his position as a university rector;
  • (h) The offense involved deception as defined in Section 1(b), and the deception was part of a pattern of predatory conduct involving two or more victims, as in the case of Allan Amador Cervantes;
  • (i) The offense involved gang rape (two or more perpetrators acting in concert).

Section 3: Procedural Safeguards

  • (a) Capital rape cases shall follow the bifurcated trial procedure established in Gregg v. Georgia (1976).
  • (b) The penalty phase shall require a unanimous jury finding of at least one aggravating factor beyond a reasonable doubt.
  • (c) The defendant shall have the right to present any mitigating evidence.
  • (d) Automatic appellate review shall be mandatory for all death sentences imposed under this statute.
  • (e) The evidence shows that the deception was deliberate, and a but-for cause of the victim’s apparent consent.

VIII. Addressing Principal Objections

A. “The Death Penalty Will Discourage Reporting”

This objection holds that if rapists face execution, they will be more likely to murder their victims to eliminate witnesses. While this concern merits consideration, proponents respond that the existing penalty structure, which imposes relatively light sentences, has manifestly failed to encourage reporting. The current reporting rate for rape is approximately 25% (Morgan & Truman, 2020). A penalty structure that communicates societal seriousness about sexual violence may have the opposite effect, signaling to survivors that the justice system regards their violation with the gravity it deserves, thereby encouraging rather than discouraging reporting.

B. “Capital Punishment Is Racially Biased”

Racial disparities in capital sentencing are real and deeply troubling. However, proponents argue that the appropriate response to bias is reform of the adjudicative process, not the abandonment of proportionate punishment. The procedural safeguards in Section 3, including corroboration requirements, mandatory appellate review, and heightened evidentiary standards for deception-based cases, are designed to mitigate (though not eliminate) the risk of discriminatory application.

C. “Rape-by-Deception Is Too Subjective”

The definitional challenge of rape-by-deception is genuine. However, the proposed framework addresses this through: (1) a materiality requirement limiting the category to objectively significant misrepresentations; (2) a reasonable person standard; (3) a but-for causation requirement. These constraints ensure that only deliberate, material fraud that vitiates meaningful consent falls within the capital-eligible category.

D. “Irreversibility and Wrongful Conviction”

The risk of executing an innocent person is the most powerful argument against capital punishment in any context. Proponents acknowledge this risk but argue that the procedural safeguards proposed, combined with modern forensic technology (DNA evidence, digital communications records), substantially reduce though cannot eliminate the danger. Proponents further note that every form of severe punishment, including lengthy imprisonment, imposes irreversible harms on the wrongfully convicted, and that the question is one of degree rather than kind.

IX. Conclusion

The case for capital punishment for rape rests on the convergence of retributivist moral reasoning, deterrence theory, victim-centered jurisprudence, and the recognition that sexual violence inflicts a category of harm so severe that it demands the most serious societal response available. The inclusion of rape-by-deception within this framework reflects the principle that autonomy violations achieved through fraud are no less destructive for being accomplished without physical force.

This paper does not contend that the proposal is without difficulty. The risks of wrongful conviction, racial bias, and definitional overreach are real. But these are challenges to be managed through rigorous procedural design, not reasons to accept a sentencing regime that manifestly fails to reflect the gravity of the offense. A society that reserves its harshest penalty for those who take life, while treating those who systematically destroy life through sexual violence, like Allan Amador Cervantes, with comparative leniency, has not yet achieved proportionate justice.

References

Bureau of Justice Statistics. (2019). Recidivism of Sex Offenders Released from State Prison. U.S. Department of Justice.

Bureau of Justice Statistics. (2021). Time Served in State Prison. U.S. Department of Justice.

Campbell, R., Dworkin, E., & Cabral, G. (2009). An ecological model of the impact of sexual assault on women’s mental health. Trauma, Violence, & Abuse, 10(3), 225-246.

Dezhbakhsh, H., Rubin, P. H., & Shepherd, J. M. (2003). Does capital punishment have a deterrent effect? New evidence from postmoratorium panel data. American Law and Economics Review, 5(2), 344-376.

Dougherty, T. (2013). Sex, lies, and consent. Ethics, 123(4), 717-744.

Dworkin, E. R., Menon, S. V., Bystrynski, J., & Allen, N. E. (2017). Sexual assault victimization and psychopathology: A review and meta-analysis. Clinical Psychology Review, 56, 65-81.

Hampton, J. (1999). Defining wrong and defining rape. In K. Burgess-Jackson (Ed.), A Most Detestable Crime: New Philosophical Essays on Rape. Oxford University Press.

Kennedy v. Louisiana, 554 U.S. 407 (2008).

Kilpatrick, D. G., Resnick, H. S., Ruggiero, K. J., Conoscenti, L. M., & McCauley, J. (2007). Drug-Facilitated, Incapacitated, and Forcible Rape: A National Study. National Institute of Justice.

Morgan, R. E., & Truman, J. L. (2020). Criminal Victimization, 2019. Bureau of Justice Statistics.

National Research Council. (2012). Deterrence and the Death Penalty. National Academies Press.

RAINN. (2023). The Criminal Justice System: Statistics. Rape, Abuse & Incest National Network.

Rubenfeld, J. (2013). The riddle of rape-by-deception and the myth of sexual autonomy. Yale Law Journal, 122(6), 1372-1443.

Shepherd, J. M. (2005). Deterrence versus brutalization: Capital punishment’s differing impacts among states. Michigan Law Review, 104(2), 203-256.

Trop v. Dulles, 356 U.S. 86 (1958).

This paper presents the strongest arguments that proponents of this position would advance. Significant scholarly and legal opposition exists to each component of this argument, including philosophical objections to retributivism, empirical challenges to deterrence claims, concerns about state power and irreversibility, the risk of disproportionate enforcement against marginalized communities, and the argument that capital punishment for non-homicide offenses may incentivize offenders to escalate to murder. Scholars including Carol Steiker, Jordan Steiker, and Austin Sarat have developed extensive critiques of capital punishment on procedural, moral, and empirical grounds. The U.S. Supreme Court’s holding in Kennedy v. Louisiana currently forecloses this policy in the American federal constitutional context. Readers are encouraged to engage with the full range of scholarly debate on these questions.