The Supreme Court on Wednesday takes up a major death penalty case testing whether capital punishment is constitutional for the rape of a child. It is the first time that the newly constituted Supreme Court will be examining what the standards are for determining what crimes can be punished by execution.
For the last three decades, the high court has limited the use of the death penalty, ruling that it can't be imposed against kidnappers who do not kill or even some accomplices to murder.
In 1977, the court, by a 7-to-2 vote, ruled that the death penalty is unconstitutionally cruel and unusual punishment for the rape of an adult woman. In that case, the victim was a 16-year-old woman — considered by the state to be an adult — raped by an escaped prisoner convicted previously for rape."
Execution is "excessive," the court said, for the rapist who does not take a human life.
In the 31 years since the decision, nobody has been executed for rape in the United States. But on Wednesday, the high court will hear arguments on the question of whether a person can be executed for rape if the victim is a child. Six states now have laws that allow capital punishment for child rape. Only Louisiana has actually sentenced anyone to death for child rape. The state allows execution for the rape of someone under age 13, and has two men on death row for the crime.
The test case before the court began on March 2, 1998, when Patrick Kennedy called 911 to report the rape of his 8-year-old stepdaughter.
"I need an ambulance," Kennedy said. "I need police. My little girl ... is 8 years old. She was off in the yard and she said two boys grabbed her and raped my child and I'm trying to find these motherf****** because I am going to kill them."
Despite the fact that Kennedy's stepdaughter supported the story of a rape by two boys, police soon became convinced that Kennedy was the perpetrator. Months later, after the girl had been removed from her mother's home, state social workers suggested to the mother that the child's return would depend on her facing up to the stepfather's role. The child then changed her story and implicated her stepfather. He was tried and sentenced to death. The Louisiana Supreme Court upheld the conviction, noting that the current U.S. Supreme Court, with its two new Bush appointees, has not ruled on the standards for evaluating death penalty laws.
Translation: The 1977 decision applied only to the rape of an adult woman, and maybe with the court now leaning much more conservative, it would allow execution for the rape of a child.
'Struck by Lightning'
Death penalty opponents see this case as a test of where the new court is heading.
"This case is a throwback," says Washington and Lee University professor David Bruck. "The death penalty for rape was one of the most disturbing and troubling aspects of this nation's entire experience until the Supreme Court called a halt, we thought, in 1977."
Disturbing and troubling, he says, because it was almost exclusively imposed on African Americans.
Indeed, from 1930 to 1972, basically the last years when the death penalty was imposed for rape, nine out of 10 men executed for rape were black. Moreover, it appears that no white man has ever been executed in the U.S. for the non-homicide rape of a black woman or child.
Louisiana and the five other states that have enacted the death penalty for child rape contend that the democratically elected representatives of the people in their states have good reason to bring back the death penalty for the rape of a child.
"What has changed in modern times," says Texas Solicitor General Ted Cruz, "is the appreciation that society has for the enormous trauma and the enormous harm that child rape produces. That's why there has been a consistent trend among the states toward increasing the punishment for child sexual assault, and for, in this instance, violent rape of young children."
The Supreme Court has indeed looked at the trend in capital cases to see what crimes society is willing to punish with the ultimate punishment, and as Louisiana points out, the trend is in favor of execution for the crime of raping a child.
But Stanford law professor Jeff Fisher, the lawyer for the defendant in this case, counters that a handful of states "over the course of 30 years is not much of a trend, especially when you consider that when you are starting at zero there is only one direction legislation can go."
The Supreme Court has also said that the death penalty is unconstitutionally cruel and unusual punishment when it is applied, in the court's words, so "wantonly" and "freakishly" that it is like being "struck by lightening." Louisiana and its supporters "guestimate" that there are as many as 80,000 cases of child rape nationally, and 180 known cases in Louisiana where the penalty could have been applied. And yet, there are only two people in the country who have been sentenced to death for the crime, both of them in Louisiana. Two is a number, say death penalty opponents, that is so small that it is like being hit by lightening.
What's more, says defense lawyer Fisher, in these cases, there is a particular risk of executing the innocent.
Two Dramatically Different Stories
In Louisiana, all those charged with child rape are offered the chance to plead guilty and be sentenced to life in prison without parole. So the only defendants who are subject to the death penalty are those who insist they are innocent and demand a trial where, as this case demonstrates, says Fisher, there are special risks of erroneous conviction.
Here, he notes, "there is no DNA evidence, no positive physical evidence linking the defendant to the crime; you have a victim who has told two diametrically different stories and changed her story only after being told by the state that she was going to be put in foster care if she denied that her stepfather did it."
The child did indeed tell two dramatically different stories.
In a videotaped interview with a psychologist shortly after the rape, she said two boys came to her house, dragged her over to the side yard, and as she put it, one of them put his "thing" in her "pee pee."
Over the course of two days of interviews, she was clearly reluctant to talk about the rape, at one point bursting out that she knew police wanted her to accuse her stepfather.
"I will tell the same story," she says, her voice rising. "They just want me to change it." The psychologist asks the child, "Who wants you to change it?" The reply: "The policemen. They want me to say my dad did it, and I don't want to change it."
Two years later in a second videotaped interview, the victim, identified by her initials L.H., said her stepfather raped her.
"I woke up one morning, and he was on top of me," she said, her voice expressionless and barely audible.
When asked what happened next, she answered, "He just raped me."
Capital punishment opponents argue that no matter which story you believe, this case illustrates a particular set of problems: The difficulties of dealing with highly suggestible child witnesses, the special rules crafted for hearing their evidence at trial and the victims' fear of reporting rapes committed by relatives and close family friends.
Different Sides of the Issue
Surprisingly, in this case, a coalition of victims rights and rape crisis organizations have filed a brief arguing against the death penalty.
Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assault, says the death penalty can only exacerbate the problem of underreporting, first by the child, and next, by the family member the child is likely to tell.
"This is someone that they have loved," explains Benitez. "They may be willing to see them put in prison, but they may not be willing to run the risk of having them put to death."
Indeed, in this case, the child cried for 23 minutes on the witness stand during which the prosecutor left the room for some time. After that, the child answered a few questions, then began crying again, and after a recess, the video of her implicating her stepfather was played for the jury.
The defendant's lawyers argue that this all adds up to a situation in which instead of the death penalty being reserved for the worst of the worst, it is applied almost randomly to a defendant who stands trial for raping a child.
Not so, says the state of Louisiana and its supporter states.
"The damage that Patrick Kennedy did to this little girl," says Texas Solicitor General Cruz, "the injuries that were visited upon this 8-year-old girl were so severe that the rape trauma physician said they were the most severe injuries that physician had ever seen in a rape case."
The injuries were so severe that the child needed extensive surgery to repair the damage to her genitalia.
If there are arguments against such executions, say those defending the Louisiana law, then the place to make those arguments is in the legislature, not the courts.
Or, as lawyer Christopher Landau who filed a brief siding with Louisiana puts it:
"The normal way that policy arguments get resolved in this country is by people on different sides of the issue debating them, not having the Supreme Court take them off the table and say that the federal Constitution answers the debate."
A decision in the case is expected by summer.