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High Court Bans Death Penalty for Raping Children

Nina Totenberg discusses Wednesday's ruling on 'All Things Considered'

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Ari Shapiro and Renee Montagne discuss Wednesday's rulings on 'Morning Edition'

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Another Key Ruling

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The Supreme Court is scheduled to rule Thursday on the constitutionality of Washington, D.C.'s ban on handguns. Read a Q&A detailing that case.

The U.S. Supreme Court on Wednesday banned the death penalty for people convicted of raping a child.

In the 5-4 decision, the court ruled that executing someone convicted of child rape violates the ban on cruel and unusual punishment. Justice Anthony Kennedy penned the opinion for the majority, writing: "The death penalty is not a proportional punishment for the rape of a child."

The opinion makes it clear that the court believes the death penalty is appropriate only in cases where the crime results in death. The ruling overturns laws in six states that allowed the death penalty for the rape of a child and commutes the death sentences of two men on death row in Louisiana to life in prison. The case was based on one of those men, Patrick Kennedy, who was convicted of brutally raping his 8-year-old stepdaughter in 1998.

Initially, Kennedy called 911 and said the girl had been raped by two boys. "I need an ambulance," Kennedy told the 911 operator. "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."

The girl initially stood by that story, but police were unconvinced. Later on, she changed her story and implicated her stepfather.

The court has been limiting the use of capital punishment somewhat in recent years, ruling that juveniles and those suffering from mental retardation cannot be put to death. In 1977, the court also ruled that a man who raped a 16-year-old girl would be spared execution. This case takes that ruling a step further.

In his opinion, Justice Kennedy wrote: "The court concludes that there is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability."

Kennedy argues that allowing the death penalty for raping a child opens the door for execution to be considered in less severe rape cases. And while juries and judges could take into account how egregious the rape is, Kennedy says that a few less brutal rape cases are sure to slip through. The girl in the Kennedy case was so severely injured by the rape, she required immediate surgery.

Kennedy noted that the capital cases put an additional burden on witnesses — especially if those witnesses are children, who would be required to testify and retestify for years to come. He also pointed out that these cases would have a particular susceptibility for wrongful execution, because child testimony is occasionally unreliable or even imagined.

Many victims' rights groups surprisingly joined Kennedy's defense in this case. They said because so many rapes of children are perpetrated by family members, it's unthinkable to ask a child to implicate a parent or relative, when doing so means possible execution.

The court's four more liberal justices joined Kennedy in the ruling, while his four more conservative colleagues dissented. No one has been executed in the United States for a crime not involving murder in almost a half-century.

Victim's Prior Statements Barred at Trial

In a separate decision issued Wednesday, the Supreme Court ruled that a convicted killer deserves a new trial because jurors heard testimony that should have been excluded — the statements of his ex-girlfriend, shortly before he shot and killed her.

In Giles v. California, prosecutors said Dwayne Giles shot his ex-girlfriend, Brenda Avie, outside his grandmother's house in 2002. Giles' niece and grandmother apparently heard gunshots and found Giles standing near his ex-girlfriend with a gun in his hand. Giles claimed to have shot her in self-defense. He said she was jealous and had charged him, and he had killed her by accident.

Prosecutors introduced a domestic violence report to refute that. Avie had filed the report with police about three weeks before she was killed. She had told police that Giles had accused her of having an affair and had beaten her up. She said he then threatened to kill her if he found her cheating on him.

Giles' attorneys said the domestic violence report was inadmissible in court because the Sixth Amendment guaranteed Giles' right to face his accuser, and since Avie was dead, he couldn't. The high court agreed in a 6-3 vote. It said that a criminal defendant must be able to confront witnesses against him, even if the defendant is responsible for the witness' absence.

With additional reporting by NPR's Dina Temple-Raston