Child Rape Tests Limits Of Death Penalty

That might have settled it, except the court noted in that decision, and in subsequent ones, that although the victim was 16, she was an "adult woman."

To Louisiana legislators, that meant there was an open question about whether capital punishment would be allowed for those who rape children. The state's Supreme Court held that children require special protection from society and that the "the degradation and devastation of child rape, and the permeation of harm resulting to victims of rape in this age category" justify the death penalty.

And it pointedly noted that "this current court, and its new members" have not considered the issue.

Louisiana has been joined in expanding the death penalty by Montana, South Carolina, Oklahoma and most recently Texas. (Florida and Georgia have older laws that have been called into question by state courts.)

Missouri Gov. Matt Blunt (R) has asked his state's legislature to impose the death penalty on child rapists after the high-profile case of a man who kidnapped a boy and held him captive for four years. Michael J. Devlin received 74 life sentences, but Blunt questioned whether that was "sufficient" for his crimes.

"This court should not foreclose a national debate on appropriate punishment for child rape," Missouri said in an amicus brief.

Louisiana argues that such initiatives are reflective of the same sort of societal trends -- albeit in the opposite direction -- that the court recognized in 2002, when it declared the death penalty unconstitutional for the mentally retarded, and in 2005, when it did the same for juveniles. Both reversed earlier decisions by the court.

Fisher and the Capital Appeals Project in New Orleans, which represented Kennedy in his appeals, countered that more states have rejected the death penalty for child rapists than have added it, and that New Jersey repealed its death penalty law entirely. "Viewed against the backdrop of 44 years without a single execution for rape of any kind, the enactments of only four states over 13 years . . . hardly signify a shift in societal attitudes," their brief argues.

Expanding the death penalty to include non-homicidal rape would separate the United States from other Western nations and align it with "only a sliver" of the world, including China, Saudi Arabia and Egypt, Fisher argues.

Even if imposing the death penalty for child rapists were ruled constitutional, he said, Louisiana's law is so broad that it fails the Supreme Court's test of narrowing classifications of offenders to the worst of the worst. For instance, while other states require previous convictions before a convict is eligible for the death penalty, Louisiana does not. Anyone convicted of raping a child younger than 13 is eligible for the death penalty, even though the typical murderer would not be.

The NAACP Legal Defense Fund and the American Civil Liberties Union reminded the court of the "scourge of racial bias" that accompanied the execution of rapists during the middle part of the 20th century; nearly 90 percent of those executed were black.

Beyond legal issues, the law is bad policy, an unlikely coalition of social workers and groups that work to prevent sexual assaults told the court.

Her opposition "might seem counterintuitive," Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assault, said in an interview. "But our great fear is that it will increase underreporting" of the crime.

She said the "vast majority" of sexual assaults against children are committed by a family member or friend, and that other family members would be unwilling to turn over the rapist if the death penalty might be carried out.

Additionally, the imposition of the death penalty means that abusers face no greater penalty for raping and killing their victims than for solely raping them, she said.

Benitez acknowledges those are arguments that would seem better directed at legislators than the courts. But she said lawmakers are often swayed by the emotions that accompany terrible crimes.

"It's a complex area that I think needs to be looked at in a more in-depth manner than policymakers are often willing to do," she said.