A Crime and Its Punishment

THERE IS NO crime more heinous than the rape of a child. But does the Constitution allow states to impose the death penalty for such a crime when the child's life has not been taken?

Patrick Kennedy is challenging such a law in Louisiana in a case scheduled to be heard by the Supreme Court on today. Louisiana is one of a handful of states that have in recent years endorsed capital punishment for such a violation. Louisiana's law is the toughest, allowing a first-time offender to face death for the rape of a child under the age of 12. Mr. Kennedy finds himself on Louisiana's death row for the 1998 aggravated rape of his stepdaughter, who was 8 at the time. According to court documents, the little girl was so badly hurt that she required surgery.

The desire to impose the harshest punishment possible on those who inflict such harm on children -- or to deter others from such brutality -- is understandable and morally defensible. But it may not be lawful and it may not be in the best interest of children.

As a matter of policy and conscience, we have long opposed capital punishment, even for murder. To allow capital punishment for a crime that stops short of murder would only open the door for an even broader application of the death penalty, with no clear delineation. And while a few states in recent years have passed capital punishment laws for cases of child rape, the absence of such laws in the vast majority of states suggests that the nation as a whole condemns the application of the death penalty for anything other than murder, suggesting that Louisiana's law is not in sync with the court's "evolving standards of decency."

A compelling argument against applying the death penalty to cases of child rape is made in a friend-of-the-court brief filed by a coalition of social workers and interest groups that work on behalf of victims of sexual abuse. The coalition argues convincingly that the already gross underreporting of child sexual abuse might only be exacerbated if the death penalty were imposed in such cases. In most such cases, the perpetrators are family members or acquaintances; children might be even more frightened to report a crime if they thought they'd be responsible for the death of someone they knew or even loved. Even if the child was brave enough to come forward, a family member with ties to the offender could prevent disclosure to law enforcement authorities. Life imprisonment without the possibility of parole is a better alternative to keep children beyond the reach of sexual psychopaths.