BOISE, ID – A bill to allow the death penalty for adults who sexually abuse children age 12 and younger in Idaho is headed to Idaho Gov. Brad Little for final consideration.

House Bill 380, cosponsored by Rep. Bruce Skaug, R-Nampa and House Assistant Majority Leader Josh Tanner, R-Eagle, would allow the death penalty in a new criminal charge the bill creates: aggravated lewd conduct with children age 12 and younger.

The bill also would add mandatory minimum prison sentences for cases of aggravated lewd conduct with minors — which would only apply to abuse of children age 16 and below — that don’t meet the bill’s proposed criteria for death penalty eligibility.

The Idaho Legislature widely passed the bill this year. The Idaho Senate passed the bill Monday on a 30-5  vote, with opposition from three Senate Democrats and two Senate Republicans. Last week, the Idaho House unanimously passed the bill, with 63 votes in favor and seven lawmakers absent.

When the bill is transmitted to Gov. Brad Little, he has five days, excluding Sundays, to decide on it. He has three options: sign it into law, allow it to become law without his signature, or veto it.

If passed into law, the bill would take effect July 1.

Bill would send a message, Sen. Doug Ricks says

Skaug has told lawmakers Idaho has some of the nation’s most lenient child rape laws. 

“Unlike most states, Idaho currently lacks mandatory minimum sentences for these horrific crimes — meaning judges have the discretion to place the worst offenders on probation,” bill cosponsor Sen. Doug Ricks, R-Rexburg, told the Senate on Monday. “This legislation ensures that those who commit the most severe offenses against children face significant consequences, sending a clear message that Idaho will not tolerate the sexual abuse of minors, especially our children.”

Idaho law only allows the death penalty in first-degree murder cases with aggravating circumstances.

Idaho Gov. Brad Little recently signed a bill into law that will make the Gem State the only state to use firing squads as its main execution method. Skaug also cosponsored that bill.

Idaho Senate Minority Leader Melissa Wintrow, D-Boise, voted against the death penalty for child sex abuse bill. She said harming a child should carry significant penalties, but she said the bill represents a significant policy shift for Idaho.

“Unfortunately, I only heard from four sources regarding this bill. And that feels very uncomfortable, when I think we need a vigorous and long debate and discussion,” Wintrow said.

U.S. Supreme Court already struck down death penalties for child rape. Idaho lawmakers expect a legal challenge.

The U.S. Supreme Court in 2008 blocked death penalties for child rape in Kennedy v. Louisiana.

Florida passed a child rape death penantly law two years ago. Last year, Tennesee passed a child rape death penalty law.

Bracing for a legal challenge to the bill, Skaug told lawmakers he expects the U.S. Supreme Court would rule differently.

“You can say, ‘Well, that’s unconstitutional, Bruce. Why would you bring that?’ Well, it was — according to a 5-4 decision in 2008. I don’t think that would be the case today,” Skaug, an attorney, told lawmakers in a House committee hearing. “That’s my professional opinion. That’s the opinion of many other attorneys.”

Skaug has said the death penalty would be rarely sought under his bill. Nine people are on death row in Idaho, according to the Idaho Department of Correction.

Defense attorney suggests many cases would be death penalty eligible

Public testimony has been largely supportive of the bill.

But in a Senate Judiciary and Rules Committee hearing on the bill on Wednesday, David Martinez of the Idaho Association of Criminal Defense Lawyers testified against the bill, arguing the bill doesn’t focus on “the worst of the worst,” could potentially expose victims of decades of reliving trauma, and fails to account for Idaho’s shortage of qualified death penalty defense attorneys.

The bill outlines more than a dozen aggravating factors under which prosecutors can seek the death penalty. Only three are required to seek the death penalty, which would only be available in cases of aggravated lewd conduct against minors age 12 and younger.

But in almost every lewd conduct case Martinez has handled or supervised, he said at least three of those factors are already present.

Using force or coercion is one of the aggravating factors outlined in the bill. But that’s inherently present in every lewd conduct case because minors can’t consent to the conduct, Martinez said.

“What this bill actually does is subsume the underlying crime, because potentially all (lewd and lascivious cases) will fall under this new statute, and none under the old,” Martinez testified in committee.

Holly Rebholtz, representing the Idaho Prosecuting Attorneys Association, said she disagreed, saying the new aggravated lewd conduct crime wouldn’t be charged very often.

“I don’t think these crimes are going to come into play very often. But when they do, they are the most serious crimes we see. And again, the prosecutors believe that the most serious crimes against children deserve a serious punishment,” Rebholtz testified.

Skaug told the committee that Idaho public defenders were not able to immediately estimate the bill’s costs. But in a worst case scenario, Skaug said, there could be two cases each year at a cost of up to a million dollars per case.

Senate Republican opposed bill, saying ‘We are starting to equate revenge with justice’

Sen. Dan Foreman, R-Moscow, a combat veteran and retired police officer, voted against the bill on the Senate floor. He was also one of few Republicans to vote against a bill to make the firing squad the main death penalty method in Idaho.

“I see society starting to go down a dangerous road here. Not just with this bill, but in general — where we are starting to equate revenge with justice. And that’s a slippery slope,” Foreman said in a committee hearing last week on the child sex abuse death penalty bill.

Senate Majority Leader Lori Den Hartog, R-Meridian, argued on the Senate floor that the bill isn’t about retribution.

“When I look at the types of circumstances that would lead to these charges — and I think about the irreparable and irreversible damage done to a child who then has to live with the consequences of these actions upon them for the rest of their lives — I think this is about accountability and about how we value life,” she said.

This is Skaug’s second attempt at child sex abuse death penalty bill

This year’s child sex abuse death penalty bill is Skaug and Tanner’s second attempt at such a bill. Last year, another bill they brought widely passed the House but never received a Senate committee hearing.

Skaug and Tanner’s new bill this year — cosponsored by eight other Idaho lawmakers — would establish the new crime, and mandatory minimums criminal sentences. For instance, the bill’s proposed mandatory minimum sentence for aggravated lewd conduct with minors under age 16 would carry at least 25 years in prison.

Under the bill, lewd conduct with a minor would include but is not limited to “genital-genital contact, oral-genital contact, anal-genital contact, oral-anal contact, manual-anal contact, or manual-genital contact” when such acts are meant to arouse, appeal to or gratify “lust or passions or sexual desires.”

Idaho Capital Sun is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Idaho Capital Sun maintains editorial independence. Contact Editor Christina Lords for questions: info@idahocapitalsun.com.