U.S. Supreme Court to hear Texas argue death penalty for child rapists
08:39 AM CDT on Wednesday, April 16, 2008
By BRENDAN MCKENNA / The Dallas Morning News
WASHINGTON — Texas says sometimes the sexual assault of a child can be so violent or obscene that the only appropriate punishment is to execute the offender.
And Wednesday, Texas Solicitor General Ted Cruz will make that case to the U.S. Supreme Court, arguing that state legislatures have the constitutional right to allow the death penalty for child rapists.
The case before the court, Kennedy vs. Louisiana, concerns a Louisiana law and the case of a Jefferson Parrish, La., man convicted of raping his 8-year-old stepdaughter. But striking down that law could call into question Texas’ 2007 “Jessica’s Law,” which allows the execution of certain repeat child sex offenders.
The Supreme Court ruled 30 years ago that death was an excessive penalty for the aggravated rape of a 16 year-old girl. But Mr. Cruz said that decision implicitly left open the door for capital punishment for the rape of children in referring to that victim as an adult.
“The damage inflicted on this 8-year-old girl … will remain with her every day of her life,” Mr. Cruz said. “The Constitution does not prohibit elected legislatures from making the determination that the most egregious forms of child rape should permit the jury to impose the most serious sentence.”
But the prospect of capital punishment could lead to fewer abuses being reported because most child sexual abuse is committed by someone known to and even loved by the victims, said Judy Benitez, executive director of Louisiana Federation Against Sexual Assault. The group is leading a coalition of victims groups opposed to applying the death penalty for child rapes, including the Texas Association Against Sexual Assault.
“These are extremely manipulative people,” she said. “They say to the child, ‘If you tell, you’re going to make the police come and take me away, and then how is Mom going to pay the bills.’ They put it very much on the child.”
The groups also argue that if the death penalty can be imposed for child rape, it could make some offenders more likely to kill their victims to prevent them from testifying, she said.
Aside from the moral arguments, David Bruck, executive director of the Virginia Capital Case Clearinghouse at Washington and Lee Law School, said Mr. Cruz and the lawyers for Louisiana face serious legal hurdles.
“The Supreme Court doesn’t take very many easy cases, but this should be one,” he said. “The rape of a child is not the same as killing a child, that’s basically what the court said [in 1977]. … Horrible as the crime is, it is not equivalent.”
Mr. Bruck said the court could strike down the Louisiana law and leave Texas’ statute intact because it more narrowly restricts cases in which the death penalty could apply. A ruling is expected later this year.
Arguments for and against allowing the execution of those who sexually assault children:
Execution is “cruel and unusual punishment” when applied to child rape cases because the Supreme Court already ruled that it is excessive in rape cases when the victim was not also killed.
Executions for child rape mean the penalties for rape and murder are the same so an offender may be more likely to kill a victim.
Executing child rapists may make it more likely for some child sexual abuse to go unreported.
Louisiana’s law, the subject of the case being argued today, is too broad because it could apply to any rape of a child under 12, not just the most egregious.
Execution is not necessarily barred by previous rulings as excessive for all rape cases, merely for the rape of an adult woman.
Violent rape of a child is particularly egregious and shows “a degree of manifest evil, that is qualitatively” different from other rapes.
Society’s moral standards are evolving to recognize the horror and damage caused by child rape and impose stricter punishments on perpetrators.
Louisiana’s aggravated rape law, which also includes rape of the elderly, allows the death penalty only for rape of children under 12.