WASHINGTON — A Louisiana jury convicted Patrick Kennedy of raping his stepdaughter. Although the 8-year-old girl survived, the state of Louisiana wants to execute Kennedy. The Supreme Court will soon decide if it can, in a case that revives the question of whether capital punishment fits a crime in which the victim lives.
"The court could well turn back the clock a generation if it upholds this penalty," said David Bruck, a death-penalty opponent and the director of the Virginia Capital Case Clearinghouse.
Some 3,300 inmates are on death row nationwide. Only two face execution for child rape. Both are in Louisiana.
Other states, though, will be watching closely Wednesday as the court hears oral arguments in the Kennedy v. Louisiana case. Five states, including Texas and South Carolina, permit the death penalty in certain child rape cases. Legislatures elsewhere are considering the idea.
Missouri Gov. Matt Blunt, for one, began championing the death penalty for child rapists following the high-profile prosecution of Michael Devlin. Devlin was convicted of abducting an 11-year-old boy in October 2002 and sexually abusing him for the next four years.
Devlin, caught after he kidnapped a second boy, received a 170-year federal sentence and 74 life sentences.
"The Devlin case led many in Missouri ... to question whether life imprisonment is sufficient for crimes of this type," Blunt said in a legal filing.
The death penalty once was relatively common for the crime of rape, particularly in the South, where the vast majority of those executed for rape were black. In 1977, though, the Supreme Court overturned the death sentence for an escaped prisoner who was convicted of raping a 16-year-old girl at knifepoint.
The Supreme Court considers sentences that are "grossly disproportionate" or "excessive" to violate the Eighth Amendment's prohibition against cruel and unusual punishment. Executing convicted murderers is acceptable. Executing rapists isn't.
"Life is over for the victim of the murderer," then-Justice Byron White reasoned in the 1977 case. "For the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair."
White's opinion in Coker v. Georgia stressed that the 16-year-old whom Erlich Anthony Coker raped was an adult. That seemed to open the door for states, led by Louisiana in 1995, to pass laws permitting states to execute those who rape children.
Louisiana's law permits the death penalty for those convicted of aggravated rape of a child under the age of 13. Texas, South Carolina, Oklahoma and Montana allow the death penalty if the rapist has a prior record for sexually assaulting a child.
"Violent child rape is unique," Texas Attorney General Ted Abbott wrote in a legal brief endorsed by Idaho, Washington and six other states. "No other crime inflicts comparable damage. And no other crime requires the peculiar depravity manifested by those who rape small children."
Kennedy is now 44 years old. He has an eighth-grade education and a tested IQ of 70. He had a record for passing bad checks but no known history of violence prior to his arrest in the 1998 rape of his stepdaughter.
Kennedy's stepdaughter originally told police that she was attacked by two teenage boys from the neighborhood. She later changed her story and accused Kennedy.
"The victim states that she woke up one morning and Kennedy was on top of her," Louisiana declared in a legal brief. "He raped her, saw that she was bleeding and called the police after informing her that she better tell them the story he made up."
Bruck, of the Virginia Capital Case Clearinghouse at Washington and Lee University Law School, conceded that "plenty of evidence" supports Kennedy's conviction. He added, though, that child-rape victims can be unreliable witnesses because they're susceptible to pressure from adults.
In Eighth Amendment cases, the Supreme Court often examines "evolving standards of decency." In 2002, for instance, the court cited a "legislative consensus" among states in prohibiting the executions of mentally retarded prisoners. In 2005, citing both domestic and international laws, the court voted 5-4 to prohibit executing prisoners from crimes committed when they were under 18.
In the case of child rape, the justices may confront competing facts as they try to identify how standards of decency are evolving. Relatively few states allow the death penalty for child rape. That suggests a consensus against the idea. Conversely, states like Missouri insist the idea could have merit.
"It is neither necessary nor appropriate for this court to silence a debate in
Missouri and other states on the death penalty for child rape before that debate has even been joined," Missouri argued in its brief.