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The U.S. Supreme Court today looks at whether the death penalty is a constitutional punishment for one crime that's especially abhorrent, the rape of a child. The high court ruled three decades ago that sentencing someone to death for the rape of an adult woman was excessive and unconstitutional. Since then, no one has been executed for rape in the U.S.
Now, six states have enacted laws that do allow capital punishment for the rape of a child. Two men are on death row, both in Louisiana, for abusing victims who are under 13. NPR legal affairs correspondent, Nina Totenberg, has this report, which, please be warned, contains some disturbing language.
NINA TOTENBERG: On March 2nd, 1998, Patrick Kennedy called 911 to report the rape of his eight-year-old stepdaughter.
Mr. PATRICK KENNEDY: I need an ambulance. I need a police. My little girl is eight years old, and she was out in the yard and she said two boys grabbed her and raped my child. And I'm trying to find these motherf(bleep) 'cause I'm going to kill them.
TOTENBERG: 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 only applied to the rape of an adult woman. And maybe with the court now much more conservative, it would allow execution for child rape.
Death penalty opponents see this case as a test of where the new court is heading. Washington and Lee University Professor David Bruck has been litigating against the death penalty for 30 years.
Professor DAVID BRUCK (Washington and Lee University): This case is a throwback. The death penalty for rape was one of the most disturbing, troubling aspects of this nation's entire experience until the Supreme Court called a halt, we thought, in 1977.
TOTENBERG: Disturbing and troubling, he says, because it was almost exclusively imposed on African-Americans. Indeed, from 1930 to '72, 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 United States for the non-homicide rape of a black woman or child.
Louisiana and five other states that have now 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.
Texas Solicitor-General Ted Cruz.
Mr. TED CRUZ (Solicitor-General, Texas): What has changed in modern times 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 towards increasing the punishment for child sexual assault and for, in this instance, violent rape of young children.
TOTENBERG: The Supreme Court has indeed looked at the trend in capital cases to see what crimes society is willing to sanction with the ultimate punishment. And as Louisiana points out, the trend is all in one direction for the crime of raping a child.
But Stanford Law Professor Jeff Fisher, the lawyer for the defendant in this case, has a ready answer.
Professor JEFF FISHER (Law, Stanford University): Four or five states over the course of 30 years is not much of a trend, especially when you consider that when you're starting basically at zero, there's only one direction legislation can go.
TOTENBERG: What's more, says defense lawyer Fisher, in these cases, there's a particular risk of executing the innocent. 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're innocent and demand a trial - a trial where, as this demonstrates, says Fisher, there are distinct risks of erroneous conviction.
Prof. FISHER: There's no DNA evidence, no positive physical evidence linking the defendant to the crime. You have a victim who was 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.
TOTENBERG: 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's clearly reluctant to talk about the rape, at one point bursting out that she knows the police want her to accuse her stepfather.
Ms. L.H.: I want to tell them same story. They just want me to change it.
Unidentified Woman: Who wants you to change it?
Ms. L.H.: The policemen. They want me to say my dad did it, and I don't want to change it.
TOTENBERG: Two years later, in a second videotaped interview, the victim, identified by her initials L.H., says her stepfather, Patrick Kennedy, raped her.
Ms. L.H.: I woke up one morning, and he was on top of me.
Unidentified Woman: And what happened then?
Ms. L.H.: He just raped me.
TOTENBERG: No matter which story you believe, capital punishment opponents argue this case illustrates a special problem: 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.
Surprisingly, in this case, a coalition of victims' rights and rape crisis organizations have filed a brief arguing against the death penalty. Judy Benitez, the 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.
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: 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's applied almost randomly to a defendant who stands trial for raping a child. Not so, says the state of Louisiana and its supporter states, represented by Ted Cruz.
Mr. CRUZ: Patrick Kennedy - the damage he did to this little girl, the injuries that were visited on this eight-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.
TOTENBERG: 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. Christopher Landau, representing the governor of Missouri, has filed a brief siding with Louisiana.
Mr. CHRISTOPHER LANDAU (Attorney): The normal way 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 this is the federal Constitution answers to the debate.
TOTENBERG: A decision in the case is expected by summer.
Nina Totenberg, NPR News, Washington.