WASHINGTON The Supreme Court will weigh the constitutionality of the death penalty for child rape next week, in the case of a Louisiana man convicted of raping his 8-year-old stepdaughter.
The dispute, closely followed by state officials, social workers and defendants' rights groups, marks the first time since 1977 that the justices will consider whether rape can be punished by death. The justices said no in the case three decades ago, involving a 16-year-old married woman whom the court referred to as an adult.
Several states, including Missouri, have signaled that if the court permits the death penalty for child rape in Louisiana, they may try to enact such laws. Five states already plainly allow capital punishment for raping young children. Social workers warn that if the court sanctions the penalty for child rape, it could further discourage reporting of the crime because in the majority of child sexual assaults, the attacker is a relative or friend of the victim.
The dispute the justices will hear next Wednesday arises as prosecutors nationwide are obtaining significantly fewer death sentences annually than a decade ago. A de facto moratorium on capital punishment is also in place while the Supreme Court considers a separate dispute over lethal injection.
Louisiana argues that national outrage over sex crimes against children, along with efforts by some states to make rape a death penalty offense, should lead the court to uphold a Louisiana death sentence for Patrick Kennedy.
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The trend, asserts Juliet Clark, assistant Jefferson Parish district attorney, "strongly supports imposition of the death penalty for this exceedingly grave offense."
Kennedy's lawyer counters that there are signs that society believes death is excessive for rape, including that no one in America has been executed for any rape in more than 43 years. "Although rape is a very serious crime," attorney Jeffrey Fisher says, "no rapist should be punished more severely than the average
murderer, who by definition is not subject to capital punishment." The death penalty has traditionally been reserved for the worst of society's criminals.
The justices' view of such societal trends will matter in Kennedy v. Louisiana, because the court looks for evidence of a national consensus when deciding whether a sentence violates notions of decency embodied in the Eighth Amendment ban on cruel and unusual punishment.
In recent death penalty cases, the court has noted state trends in exempting the mentally ******** and teenagers from the ultimate punishment. In 2002, the court struck down the death penalty for mentally ******** defendants, and in 2005, it invalidated capital punishment for defendants who were under 18 at the time of their crimes.
After police were called to investigate the rape of the girl on March 2, 1998, Kennedy's stepdaughter initially told them that two neighborhood boys had raped her after dragging her from her garage to a side yard. Police, however, found evidence of blood in her bedroom that Kennedy apparently had tried to clean up. The stepdaughter testified later that Kennedy had raped her and urged her to relate a false account.
A jury convicted Kennedy in 2003, under a statute that permits the death penalty for anyone found guilty of raping someone under 12. The Louisiana Supreme Court rejected Kennedy's appeal that his death sentence violated the Eighth Amendment. It emphasized the need to protect children.
In Kennedy's appeal to the Supreme Court, Fisher, a Stanford University law professor, says that since the 1977 case of Coker v. Georgia, the court has not allowed capital punishment for any crime involving "person-on-person violence" that did not lead to a death.
Clark, who will argue for Louisiana, counters in her filing that times have changed. She says several states and the U.S. government have authorized the death penalty for non-homicide offenses, such as espionage. She also points to the recent enactment of "Megan's Laws" requiring sex offenders to register in their cities as a reflection of concern about child sexual assault.
Texas Solicitor General Ted Cruz, who will argue on behalf of nine other states supporting Louisiana's position, says, "The Constitution permits democratically elected legislatures to choose to allow the most serious punishment for the very worst child rapists."
The states that have signed Cruz's brief are Texas, Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina and Washington.
Among the groups siding with Kennedy, who is African-American, are the American Civil Liberties Union, which emphasizes the South's history of executing blacks for rape more often than whites, and the National Association of Social Workers.
Joining the social worker group, Judy Benitez, director of the Louisiana Foundation against Sexual Assault, said most sexual abuse is committed by victims' relatives or friends. "This can lead to ambivalence on the part of the victim and her family about reporting the abuse," Benitez said. "We believe that if the specter of the death penalty is out there, it will lead to more underreporting. The victim might think, 'I wanted the abuse to stop, but I didn't want him to die.' "
I think capital punishment in general is a terrible thing, even for murder.
