Caught Between A.R.O.C. and a Hard Place: The Role of the Tennessee General Assembly

By: Sara Andersen

Rape of a child is one of the most severely punished criminal offenses in Tennessee: the statute mandates that convicted adult offenders must receive a sentence of either death, life imprisonment without the possibility of parole, or life imprisonment with the possibility of parole.[1]  The current sentencing scheme for rape of a child became effective on July 1, 2024, but its current minimum meets or exceeds the previous maximum punishment under prior law, which required 100% service of the less severe sentences.[2]

            By contrast, first-time offenders convicted of attempted rape of a child are eligible to receive a sentence of eight years, which may be served on probation.[3]  If, however, the trial court imposes a sentence of incarceration following a conviction for attempted rape of a child, the offender who receives an eight-year sentence will be eligible for parole after serving approximately two years, four months, and twenty-four days in prison.[4] 

            In seeming contradiction to this, Tennessee Code Annotated section 40-35-501(aa)(2)(DD) requires a 100% service rate for offenders convicted of, inter alia, attempted sexual exploitation of a minor, attempted felony solicitation of a minor, attempted sexual battery by an authority figure, attempted incest, attempted continuous sexual abuse of a child, and attempted rape (of a victim at least thirteen years of age). But neither the former nor the current versions of the statute include attempted rape of a child among the offenses for which an offender is ineligible for parole.  Interestingly, the separate sexual offender punishment statute[5] itself also expressly requires a 100% service rate for adult offenders convicted as child rapists, but did not include those offenders who had received convictions for attempted rape of a child.[6]

            This is not necessarily remarkable in and of itself, as most criminal offense statutes in Tennessee do not expressly include a provision for the attempt to commit that specific offense.[7]  Instead, charging instruments most often refer to the general criminal attempt provision found in Tennessee Code Annotated section 39-12-101, which itself “creates a generic attempt law that punishes an attempt to commit any offense except a Class C misdemeanor.”[8]  One might argue that only a small number of particular offenses are as serious when attempted as they are when completed, thereby meriting special inclusion in the elements to ensure the punishment is the same as for the completed offense.[9]

            Sentencing, however, is already generally treated differently based on the elements of the offenses themselves.  Pertinently, our legislature enacted—and has almost annually amended—Tennessee Code Annotated section 40-35-501 to increase strictness in release eligibility determinations for the most serious, damaging, and dangerous offenses.   By virtue of a specific offense’s inclusion in this statute, an offender who received a twenty-five-year sentence within Range II could have a significantly different effective sentence, depending on the severity of the offense’s treatment by the legislature. Sentencing ranges from the offender possibly being eligible for parole after serving 35% of the sentence (resulting in a minimum incarceration period of approximately 8 years, 9 months, and 18 days), to a requirement to serve between 55% and 85% of the sentence (resulting in a minimum incarceration period of between 13 years, 9 months and 21 years, 3 months), to the offender sometimes being required to serve 100% of the sentence (resulting in continuous incarceration for the entire 25 years, day-for-day). ^[10]

To illustrate this, assume, for example, that three offenders all received a sentence of twenty-five years within Range II, but each of them was convicted of a different Class A felony offense enumerated in Tennessee Code Annotated section 40-35-501.  These three inmates are likely to have vastly different practical terms of incarceration than their identical sentences might otherwise suggest: the offender who vandalized property valued at $250,000 or more is eligible for release on parole in a little under nine years, followed by the offender who was convicted of aggravated child neglect achieving the same eligibility between five and thirteen years later, but the successful child rapist—if he or she was convicted prior to July 1, 2024—remains incarcerated for the full twenty-five year sentence that all three of them originally received.[11] 

            Although the reasoning behind what seems like significantly disparate treatment may sometimes be unclear, it is ultimately up to the legislature to determine why certain offenses are punished more harshly than others, and it is a consideration that must always be grounded in the purposes and principles of sentencing espoused in the Sentencing Reform Act of 1989.[12] Our lawmakers must decide whether, pursuant to Tennessee Code Annotated section 40-35-501, offenders who attempt to rape a child should continue to be given less strict treatment in mandatory service percentages—and should continue to be extended eligibility for probation—than offenders who: attempt to commit the same offense against their natural children;[13] attempt to commit the offense of child abuse, neglect, or endangerment;[14] or, attempt to sell, distribute, or transport with the intent to sell or distribute “a child-like sex doll.”[15]  

            Like attempted rape of a child, all but one of these inchoate offense examples involve an actual child victim, but they differ in the requirement that offenders must serve 100% of the sentence imposed upon conviction of the attempt to victimize that child in the manner prescribed by the offense.[16]  Numerous other inchoate offenses given the same treatment by Tennessee Code Annotated section 40-35-501 involve a victim who need only be older than thirteen years of age.[17]  Notably, the Tennessee Department of Correction predicates its supervision model specific to sexual offenders on the “‘non[-]rehabilitative’ stance that the ‘drive to commit sexual offenses is never curable.’”[18] As such, it’s difficult to fathom a type of offense more necessary to protect society from or more serious than those for which the offender will, by the State of Tennessee’s definition, always maintain his or her criminal drive.[19] 

            Legislative change to the treatment of attempted rape of a child in sentencing, of a kind that brings it in-line with statutory strictures on other comparable offenses, is needed to adequately reflect the level of danger posed to Tennessee children by would-be child rapists who may one day succeed in their attempts.  If you are reading this as a citizen and constituent of Tennessee, write to your legislators!

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[1] Tenn. Code Ann. § 39-13-522.

[2] See id. §§ 39-13-523(b) (2021) (requiring “child rapists” to serve “the entire sentence imposed by the court undiminished by any sentence reduction credits”); Id. § 39-13-522(b)(2)(A) (2020) (establishing Range II as the minimum sentencing range for offenders convicted of rape of a child, a Class A felony); Id. § 40-35-112 (noting that a sentence for a Class A felony in Range II and above must be between twenty-five and sixty years); Id. § 40-35-501(i)(3) (noting that “child rapists” remain required to serve the entire sentence imposed by the court undiminished by any sentence reduction credits); see also id. § 40-35-501(h)(2) (noting that a sentence of imprisonment for life with the possibility of parole is sixty years). 

[3] See id. § 40-35-303 (noting that offenders convicted of ten specific offenses, including aggravated sexual battery and statutory rape by authority figure but not attempted rape of a child, are statutorily ineligible for probation). 

[4] See id. § -501(c) (noting that release eligibility for Range I, standard offenders is 30%).

[5] Id. §§ 39-13-523(a)(2), (b) (2021).

[6] See State v. Worley, No. M2023-00867-CCA-R3-CD, 2025 WL 101656, at *18 (Tenn. Crim. App. Jan. 15, 2025) (affirming judgment but remanding for correction of erroneous notation that the defendant’s sentence for attempted rape of a child carried a 100% service rate). 

[7] See generally Tenn. Code Ann. §§ 39-11-101 to -17-1812.

[8] Id. § 39-12-101, Sentencing Comm’n Cmts.  But see, e.g., id. § 39-13-307(a) (“A person commits the offense of involuntary labor servitude who knowingly subjects, or attempts to subject, another person to forced labor or services[.]” (emphasis added)); Id. § 39-13-309(a)(1) (“A person commits the offense of trafficking a person for a commercial sex act who[ k]nowingly subjects, attempts to subject, benefits from, or attempts to benefit from another person’s provision of a commercial sex act[.]” (emphasis added)); Id. § 39-13-1002(a)(3) (A person commits burglary who, without the effective consent of the property owner[ e]nters a building and commits or attempts to commit a felony, theft, or assault[.]” (emphasis added)). 

[9] See id. § 39-12-107(a) (“Criminal attempt is an offense one (1) classification lower than the most serious crime attempted[.]”); see also generally id. § 40-35-112 (defining applicable sentencing ranges by offense classification). 

[10] See, e.g., id. §§ 40-35-501(d), (i), (k)(6)(B). 

[11] See id. §§ 39-13-522, -14-408, -15-402; 40-35-501(d)(i)(k)(6)(B).

[12] See Tenn. Code Ann. §§ 40-35-102, -103. 

[13] Id. § 39-15-302.

[14] Id. § 39-15-401.

[15] Id. § 39-17-910(f) (emphasis added). 

[16] See id. § 40-35-501(aa)(2)(DD). 

[17] See, e.g., Tenn. Code Ann. §§ 39-13-503, -506(c). 

[18] Worley, 2025 WL 101656, at *8. 

[19] See Tenn. Code Ann. §§ 40-35-102, -103 (declaring the purposes of sentencing in general and enumerating the principles of sentences involving confinement).