Louisiana Supreme Court Upholds Death Penalty in Non-Death Child-Rape Case

In a potentially groundbreaking ruling, the Louisiana Supreme Court upheld the death penalty for a defendant convicted of brutally raping an 8-year-old girl. See the case: Louisiana v. Kennedy, Case No. 05-KA-1981 (2007). The Chief Justice of the Court dissented, saying that the Eighth Amendment to the U.S. Constitution forbids the death penalty for any offense that does not involve the death of the victim. The U.S. Supreme Court said, in a 1977 ruling on a defendant who raped a 16-year-old girl, that “the death penalty, which ‘is unique in its severity and irrevocability,’ is an excessive penalty for the rapist who, as such, does not take human life.” See Coker v. Georgia, U.S. Supreme Court Case No. 433 U.S. 584 (1977).

There is no doubt the girl was brutally raped. She required emergency surgery to repair the physical damage done by the crime. The emotional scars may never heal.

The primary issue during the trial was whether the girl’s step father, Patrick Kennedy, was the rapist. Kennedy testified, at trial, he had heard screaming and found his step-daughter lying outside of their home. He said his daughter told him local two boys had raped her. Although no reliable DNA evidence could be found, police officers presented evidence that Kennedy had raped the girl. The girl had originally told police she had been raped by the two boys, but later, told a therapist her step-father had raped her. The victim’s mother testified that the girl had also told her Kennedy was the rapist. The jury agreed with the police and sentenced Kennedy to death for the crime.

In 1995, the Louisiana Legislature had amended the state’s laws to allow the death penalty for a defendant convicted of raping a victim under the age of twelve. Prior to the U.S. Supreme Court’s 1977 ruling in Coker, Louisiana allowed the death penalty for any defendant convicted of “aggravated” rape.

The Louisiana Court, however, concluded that the Coker ruling only barred the death penalty in cases where an adult woman is raped. The Louisiana Court had earlier determined that because “children are a class that need special protection,” the death penalty is not an excessive penalty for the crime of rape when the victim is a child under the age of twelve.

The Court also examined the U.S. Supreme Court‘s ruling forbidding the death penalty for mentally retarded defendants and defendants under 18-years of age. The Supreme Court had ruled that the mentally retarded and those underage were not sufficiently reasonable for their actions to subject them to death. The Supreme Court declared that the death penalty should be reserved for those who commit “a narrow category of the most serious crimes” and whose extreme responsibility makes them “the most deserving of execution.” The Louisiana Court declared child rape to be in such a narrow category of most serious crimes and that a competent adult who would rape a child is most deserving of execution.

The justices also compared their decision to other states that provide for the death penalty. 24 of the 38 states that have the death penalty only allow a defendant to be executed when a death has occurred. Of the other 14 states, 5 have death penalty laws for child rape. 5 states can execute a defendant for crimes against the government, such as treason, espionage, or aircraft piracy. 4 states allow the death penalty for some kidnapping crimes where no death occurs. Florida allows for execution of some drug smugglers. The Court determined Louisiana’s law allowing the execution of a child rapist was not out of line.

This case will almost certainly get to the U.S. Supreme Court, giving the Court an opportunity to further refine its definition of who may be executed. Criminal defense attorneys argue that this is more an issue about the boundaries of the death penalty than about the crime of rape, even child rape. The Court could declare a bright-line rule, that only death can mandate an execution, or it may allow states to execute defendants for the worst-of-the-worst crimes. Allowing states to determine what worst-of-the-worst crimes call for capital punishment could open a Pandora’s box permitting states to create extensive lists of capital crimes that could backfire.