By Ruth Brown, Idaho Reports 

The Senate Judiciary and Rules Committee passed a bill Wednesday that would make the crime of lewd conduct with a child younger than age 12, with aggravating circumstances, potentially punishable by death.  

House Bill 380 would also create a new mandatory minimum of 25 years for the crime of lewd conduct with a child ages 13 to 15. The option of pursuing the death penalty would be left to the individual county prosecutor in cases where the child is 12 or younger.  

The crime of “aggravated lewd conduct” would be a new charge punishable by a minimum of up to 30 years in prison, or up to death should the county pursue it. 

Sponsor Rep. Bruce Skaug, R-Nampa, told the committee that the bill makes critical updates to the sentencing guidelines for lewd conduct with a child. 

“This is for the most horrific crimes against a child,” Skaug told the committee. 

The bill outlines a series of 17 aggravating factors that would make a suspect eligible for the death penalty, including the victim being kidnapped, being a victim of human trafficking, engaging in the act three or more times, and other circumstances.    

If a jury or the court finds two aggravating circumstances beyond a reasonable doubt and if the death penalty is not sought, the court shall impose a life sentence with a minimum of no less than 30 years in prison.   

The bill does not address the existing shortage of death penalty certified public defenders in Idaho available to defendants. Once a prosecutor declares his or her intent to pursue the death penalty, the defendant must be represented by death penalty certified attorneys, which are in short supply Idaho and not available in every county. 

Florida legalized a similar bill and only used it once, but it resulted in the case reaching a plea deal.  

Skaug said five other states are presenting these types of bills. 

Courts have declared it unconstitutional to execute a person for a non-lethal sex crime, and Skaug acknowledged this would be test case. 

David Martinez, representing the Idaho Association of Criminal Defense Attorneys, spoke in opposition to the bill because he believed the “aggravating factors” listed were overly inclusive and do not focus on the worst of the worst crimes. He said the policy exposes victims to potentially decades of relived trauma. 

“Let me state that no citizen believes these crimes should not be punished upon conviction, and the judges determine the severity of the conduct,” Martinez said, noting that the crime already is punishable by up to life in prison. 

Of the 17 aggravating factors listed, at least three of them were present in almost every lewd conduct case he’d ever handled, he said. 

“There simply aren’t enough capital qualified attorneys in the state to handle the number of cases,” Martinez said. 

Sen. Melissa Wintrow, D-Boise, asked Martinez more about the aggravating factors. 

He pointed to parental custody being listed as an aggravating factor because it is common in these cases. 

“As far as force or coercion, obviously a juvenile can’t ever consent to this type of behavior, so every (lewd conduct case) has force or coercion,” Martinez said. “So every (lewd conduct case) will fall under this new statute and not under the old.”  

He also argued underreporting was one of the biggest problems in these types of cases, because the suspect is often known to the victim, and a potential death penalty may lead to less reporting because of the threat of death. 

Death penalty trials are also more expensive than non-death penalty trials, according to Martinez. 

“They could take potentially a year to get on the calendar, or more, so I think we’re talking about millions of dollars per case,” Martinez said.  

Holly Rebholtz, deputy prosecuting attorney in Ada County, spoke on behalf of the Idaho Prosecuting Attorney’s Association. 

“These cases are the most horrific that prosecutors handle, and the most serious sex crimes against children deserve the most serious punishment,” Rebholtz said.   

She disagreed with Martinez on the bill. 

“Great detail and thought went into these aggravating factors. We did not want to over capture,” she said. 

The committee moved the bill forward to the Senate with two no votes recorded from Wintrow and from Sen. Dan Foreman, R-Viola. 

Sen. Josh Keyser, R-Meridian, made the motion for the bill to advance to the full Senate.   

“I’m excited about this piece of legislation,” said Keyser. “I believe the perpetrators of these kinds of crime are the scum of the earth, and I think this sends a very clear message that if you rape and/or torture a small child in Idaho, the state may kill you.” 

Foreman disagreed. 

“I heard a lot of talk about what an offender in this type of crime deserves,” Foreman said. “That word ‘deserve’ is interesting when used in this context. You could put a lot of thought into what a criminal deserves and what right we have to determine – not under man’s law, but under God’s law – what a man deserves. It’s a sobering topic. … With all the penalty options we have at our disposal, I think it’s a bit of a stretch, too much of a stretch to invoke the death penalty.” 

The bill now goes before the full Senate for a vote.  

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