High Court Rejects Death Penalty for Child Rape

The Supreme Court has outlawed executions of people convicted of raping a child. The court was considering a Louisiana law that allowed for such executions. The ruling said the law violates the Constitution's ban on cruel and unusual punishment.

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From NPR News, this is All Things Considered. I'm Robert Siegel.

MICHELE NORRIS, host:

And I'm Michele Norris. The U.S. Supreme Court ruled today that it is unconstitutionally cruel and unusual punishment to execute someone for raping a child. It was a close vote, five to four. The justices declared that execution is a disproportionately severe punishment for a crime where the victim is not killed.

The decision resonated on the presidential campaign trail, with both candidates disagreeing with the ruling. Barack Obama called it a blanket prohibition of the death penalty that could constrain states that want to use it. John McCain called the ruling an assault on law enforcement and its ability to punish felons. NPR legal affairs correspondent Nina Totenberg reports on the court's decision.

NINA TOTENBERG: More than 30 years ago, the Supreme Court struck down the death penalty for the non-homicide rape of an adult woman. But in recent years, a few states have enacted death penalty laws for child rape. Six such laws are currently on the books.

The test case that the court ruled on today involved a Louisiana man named Patrick Kennedy sentenced to death for raping his 8-year-old stepdaughter. The Louisiana Supreme Court upheld the sentence with a suggestion that the U.S. Supreme Court, with two new Bush appointees, might be more willing now to allow execution for non-homicide crimes.

Today, though, the court refused the invitation to allow more latitude, ruling that execution is an unconstitutionally disproportionate punishment for any non-homicide rape. Dissenting were the two Bush appointees, Chief Justice Roberts and Justice Alito, along with the court's two other conservative justices Scalia and Thomas. Stephen Bright is senior counsel for the Southern Center for Human Rights.

Mr. STEPHEN BRIGHT (Senior Counsel, Southern Center for Human Rights): The case, really, just leaves things as they are. It's consistent with what the Supreme Court has said over the last 30 years, which is that the death penalty can only be imposed in cases where the victim is killed.

TOTENBERG: Speaking for the court majority today, Justice Anthony Kennedy pointed to the fact the the death penalty for child rape has not been imposed in 44 years, since way before the Supreme Court's first decision outlawing execution for non-homicide rape. That and the fact that only two people are on death row for child rape, both in Louisiana, is ample proof, said Kennedy, that there is a national consensus against the practice.

He acknowledged that a non-homicide rape of a child may be devastating to the child, but under the standard views by the Supreme Court for 50 years, he observed, the death penalty must be reserved for the worst crimes, a determination that in the last analyses is up to the Supreme Court, applying evolving standards of decency.

Kennedy also pointed to particular problems posed by executing child rapists. For example, the testimony of children is notoriously unreliable and subject to influence. Death penalty opponents say this case proves the point. Here, the 8-year-old stepdaughter told two dramatically different stories. In lengthy video tape interviews with the psychologist shortly after the crime, she said she was raped by two boys whom she couldn't identify. Pressed by the psychologist at one point, she burst out that she knows the police want her to accuse her stepfather.

Unidentified Child: I am going to tell the same story. They just want me to change it.

Unidentified Woman: Who wants you to change it?

Unidentified Child: The policemen. They want me to say that Dad gone and done it, to change it.

TOTENBERG: Two years later, after the child has been removed from her home and returned, on condition that she fess up to her stepfather's role, she changed her story and said her stepfather had raped her.

Unidentified Child: I woke up one morning and he was on top of me.

Unidentified Woman: And what happened then?

Unidentified Child: He just raped me.

TOTENBERG: Justice Kennedy today pointed to another problem. The underreporting of child rape is due in part to the fact that in most cases, the rapist is a close family member or friend. Child advocates, he observed, do not favor the death penalty because it will only make children and other family members they might tell even less willing to come forward. Judy Benitez is executive director of the Louisiana Foundation Against Sexual Assault.

Ms. JUDY BENITEZ (Executive Director, Louisiana Foundation Against Sexual Assault): This is someone that they have loved. 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.

TOTENBERG: Writing for the dissenters today, Justice Samuel Alito said that the court had no basis on which to strike down the death penalty for child rape, no matter how young the child or how sadistic the crime. Former Texas Solicitor General Ted Cruz echoes that criticism.

General TED CRUZ (Former Texas Solicitor): The court has erected a categorical ban that all child rapists are ineligible for capital punishment no matter how serious the damage on the child, so long as the child is not killed.

TOTENBERG: A second criminal law decision today will grab fewer headlines but may have more practical impact. The issue was when, if ever, the prior statements of a murder victim may be used at the trial of the accused murderer.

The case involved a defendant named Dwayne Giles who shot his ex-girlfriend six times. He claimed self-defense, and at the trial, the judge admitted the evidence statements made by the ex-girlfriend to police three weeks before the murder. The girlfriend who was crying told the police that Giles had accused her of having an affair, punched and choked her, and when she broke free, threatened her with a knife.

Giles appealed his conviction, claiming that the prosecution's use of those statements by a person he could not cross-examine violated his constitutional rights. Today, the Supreme Court agreed.

Writing for the six to three majority, Justice Antonin Scalia noted that the Sixth Amendment of the constitution guarantees the accused the right to confront witnesses against him. The only exception to that requirement, said Scalia, would be if the accused committed the murder with the purpose of silencing the witness. The notion that a judge may strip a defendant of his right to confront witnesses simply because a judge decides that the accused is guilty is akin, said Scalia, to dispensing with a jury trial altogether because the defendant is obviously guilty.

Writing for the three dissenters, Justice Stephen Bryer accused the majority of creating a windfall for domestic abusers who may be able to insulate themselves from conviction by intimidating and even killing their partners, safe in the knowledge that previous victim statements to police cannot be used. Nina Totenberg, NPR News, Washington.

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High Court Bans Death Penalty for Raping Children

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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

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