concurring in the judgment in part and dissenting in part.
I concur in the judgment of the Court on the facts of this case, and also in the plurality’s reasoning supporting the view that ordinarily death is disproportionate punishment for the crime of raping an adult woman. Although rape invariably is a reprehensible crime, there is no indication that petitioner’s offense was committed with excessive brutality or that the victim sustained serious or lasting injury. The plurality, however, does not limit its holding to the case before us or to similar cases. Rather, in an opinion that ranges well beyond what is necessary, it holds that capital punishment always— regardless of the circumstances — is a disproportionate penalty for the crime of rape.
The Georgia statute, sustained. in Gregg v. Georgia, 428 U. S. 153 (1976), specifies aggravating circumstances that may be considered by the jury when appropriate. With respect to the crime of rape, only three such circumstances are specified: (i) the offense was committed by a person with a prior record of conviction for a capital felony; (ii) the offense was committed while the offender was engaged in another capital felony or in aggravated battery; and (iii) the offense was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Ante, at 588-589, n. 3. Only the third circumstance describes in general the offense of aggravated rape, often identified as a separate and more heinous offense than rape. See, e. g., ALI, Model Penal Code § 207.4, Comment, p. 246 (Tent. Draft No. 4, 1955); ALI, Model Penal Code § 213.1 (Prop. Off. Draft, 1962); Nev. Rev. Stat. § 200.363 (1975). That third circumstance was not sub*602mitted to the jury in this case, as the evidence would not have supported such a finding. It is therefore quite unnecessary for the plurality to write in terms so sweeping as to foreclose each of the 50 state legislatures from creating a narrowly defined substantive crime of aggravated rape punishable by death.1
In accord with our decisions last Term, the plurality opinion states:
“[T]he death penalty is not invariably cruel and unusual punishment within the meaning of the Eighth Amend*603ment; it is not inherently barbaric or an unacceptable mode of punishment for crime; neither is it always disproportionate to the crime for which it is imposed.” Ante, at 591.
Thus, capital punishment may be imposed on those sentenced in accordance with the procedures identified in Gregg and Woodson v. North Carolina, 428 U. S. 280 (1976), at least when the offender is convicted of murder, the crime involved in all five of last Term’s capital cases.
Today, in a case that does not require such an expansive pronouncement, the plurality draws a bright line between murder and all rapes — regardless of the degree of brutality of the rape or the effect upon the victim. I dissent because I am not persuaded that such a bright line is appropriate. As noted in Snider v. Peyton, 356 F. 2d 626, 627 (CA4 1966), “[tjhere is extreme variation in the degree of culpability of rapists.” The deliberate viciousness of the rapist may be greater than that of the murderer. Rape is never an act committed accidentally. Rarely can it be said to be unpremeditated. There also is wide variation in the effect on the victim. The plurality opinion says that “[ljife is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.” Ante, at 598. But there is indeed “extreme variation” in the crime of rape. Some victims are so grievously injured physically or psychologically that life is beyond repair.
Thus, it may be that the death penalty is not disproportionate punishment for the crime of aggravated rape. Final resolution of the question must await careful inquiry into objective indicators of society’s “evolving standards of decency,” particularly legislative enactments and the responses of juries in capital cases.2 See Gregg v. Georgia, supra, at 173-182 *604(joint opinion of Stewart, Powell, and Stevens, JJ.); Woodson v. North Carolina, supra, at 294—295 (plurality opinion); Furman v. Georgia, 408 U. S. 238, 436-443 (1972) (Powell, J., dissenting). The plurality properly examines these indicia, which do support the conclusion that society finds the death penalty unacceptable for the crime of rape in the absence of excessive brutality or severe injury. But it has not been shown that society finds the penalty disproportionate for all rapes. In a proper case a more discriminating inquiry than the plurality undertakes well might discover that both juries and legislatures have reserved the ultimate penalty for the case of an outrageous rape resulting in serious, lasting harm to the victim. I would not prejudge the issue. To this extent, I respectfully dissent.
It is not this Court’s function to formulate the relevant criteria that might distinguish aggravated rape from the more usual case, but perhaps a workable test would embrace the factors identified by Georgia: the cruelty or viciousness of the offender, the circumstances and manner in which the offense was committed, and the consequences suffered by the victim. See also Ralph v. Warden, 438 F. 2d 786 (CA4 1970), cert. denied, 408 U. S. 942 (1972); 438 F. 2d, at 794 (opinion of Haynsworth, C. J.). The legislative task of defining, with appropriate specificity, the elements of the offense of aggravated rape would not be easy, see Furman v. Georgia, 408 U. S. 238, 460 (1972) (Powell, J., dissenting), but certainly this Court should not assume that the task is impossible.
The dissent of The Chief Justice, relying on selected excerpts from my opinion in Furman, seeks to buttress the view that for sentencing purposes meaningful distinctions cannot be drawn between rapes regardless of the circumstances and effect upon the victim. Post, at 607-608, n. 2. The dissent emphasizes the difficulties of proof. But the jury system is designed and operates successfully to resolve precisely this type of factual issue. The law of negligence, for example, is replete with issues requiring the jury to determine degrees of culpability and the extent or permanency of physical and psychological injury.
I am complimented by the frequency with which The Chief Justice, in his dissent, cites and quotes from my opinion in Furman. That opinion, however, did not prevail, and — as with most of the writing in Furman — it now must be read in light of Gregg and Woodson v. North Carolina, 428 U. S. 280 (1976), which have established the controlling general principles. But contrary to implications in The Chief Justice’s dissent, my opinion in Furman did emphasize that the proportionality test as to rape should be applied on a case-by-case basis, noting that in some cases the death sentence would be “grossly excessive.” 408 U. S., at 461. I remain *603in disagreement with the simplistic all-or-nothing views of the plurality opinion and the dissenting opinion of The Chief Justice.
These objective indicators are highly relevant, but the ultimate deci*604sion as to the appropriateness of the death penalty under the Eighth Amendment — as the plurality notes, ante, at 597 — must be decided on the basis of our own judgment in light of the precedents of this Court.