<p>On January 4, 2008, the United States Supreme Court agreed to review the case of a person who was sentenced to death for a crime in which the victim, a child, did not die. The case, Kennedy v. Louisiana, involves a defendant who was convicted of raping his 8-year-old step-daughter and sentenced to death by the State of Louisiana. The defendant is challenging his sentence as a violation of his rights under the Eighth Amendment to the United States Constitution, which prohibits “cruel and unusual punishments.”</p>
<p>According to the Death Penalty Information Center, of the more than three thousand three hundred people on death row in the United States only two are on death row for committing crimes where the victim did not die. Both are on death row in Louisiana. Both have been convicted of rape of a child.</p>
<p>As to Mr. Kennedy’s case, it is undisputed that the victim, age 8 years, was brutally raped. On the date of the occurrence, the victim was transported to the hospital with profuse vaginal bleeding. Upon examination, it was found that her entire perineum was torn, and that her rectum was protruding into her vagina. Although the damage caused by the rape was successfully repaired by a pediatric surgeon, because of intense pain, before the victim could begin defecating again, she had to be fed gallons of stool softener through a tube.</p>
<p>Mr. Kennedy was prosecuted for this rape, and was ultimately convicted and sentenced to death under a Louisiana law that permits the state to seek a death sentence for a defendant who commits an “aggravated rape of a child” under age 13 years. The Louisiana Supreme Court upheld the death sentence in the face of a challenge that a death sentence for this crime violates the Eighth Amendment. (Louisiana v. Kennedy (2007) 685 So.2d 1063.)</p>
<p>No one has been executed in the United States for a crime where no victim died since 1964. In 1977, the United States Supreme Court considered the issue of whether a defendant could be sentenced to death for the rape of an “adult” woman. (Coker v. Georgia (1977) 433 U.S. 584.) In Coker, the defendant was in prison and escaped. He entered the home of the victim, age 16 years, and her husband, tied the victim’s husband up and kidnapped the victim. He then twice raped the victim and beat her with a club and dragged her to a wooded area and left her there. The defendant was subsequently captured and charged with rape and other crimes. The defendant was found guilty and was sentenced to death on the rape charge. The defendant challenged his sentence on the ground that the death sentence for rape of an “adult” woman violated the Eighth Amendment. A majority of the Court’s justices agreed with the defendant. The Court, while noting that rape is a serious crime that, “short of homicide it is the ‘ultimate violation of self,’” nonetheless concluded that it had “the abiding conviction 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.” (Coker, supra, at p. 598.)</p>
<p>While the Court addressed the rape of an “adult ” woman in Coker, the Court has never held that the Eighth Amendment prohibits (or permits) imposition of a death sentence for a person who rapes a young child. Recently, some states have enacted laws calling for the death penalty for those who rape young children. Most of these states have required a showing not only that the defendant raped a young child, but also that the defendant has a prior conviction. For instance, Texas, Oklahoma, South Carolina, and Montana all permit a death penalty for child rape only where the defendant has been previously convicted of child rape. Georgia enacted a death penalty statute in 1999 for “carnal knowledge” of a minor under age 10 years that does not require the defendant to suffer a prior conviction; however, in 2006, the Georgia legislature made certain amendments to the law that apparently make it unclear as to whether a death sentence could be imposed for this offense. Also, in Florida, legislation enacted in 1974 permits execution for sexual battery or attempted sexual battery of a child under age 12; however, the Florida Supreme Court has held that Florida’s death penalty statute for rape was unconstitutional, but, nonetheless upheld the death sentence in the case because the victim ultimately died. (Buford v. Florida (1981) 403 So. 943.) Accordingly, the validity of Florida’s law is less than certain.</p>
<p>Other jurisdictions, including California, provide for imposition of a death sentence for crimes where no one is killed. For instance, in California, anyone convicted of treason against the state can be sentenced to death. (Pen. Code, § 37, subd. (a).) Furthermore, under federal law, anyone trafficking in certain large amounts of narcotics can be subjected to the death penalty. (18 U.S.C. § 3591(b).) Similar laws are on the books in Florida and Missouri. It should be noted that, with the exception of 2 people who are on Louisiana’s death row for rape of a child, no one is currently on death row for a crime where no one was killed.</p>
<p>Recent Supreme Court cases, in deciding whether a death sentence is proper in a given case, have considered whether society has reached a consensus on the particular application of capital punishment. (See Atkins v. Virginia (2002) 536 U.S. 304 [barring execution of the mentally retarded]; Roper v. Simmons (2005) 543 U.S. 551 [barring execution of people who were under age 18 at time of crime].) The State of Louisiana is apparently attempting to use this approach to its advantage, by arguing that recent laws enacted that permit the imposition of capital punishment for those who rape a child shows that societal trends are changing to favor of imposing capital punishment in such cases. Lawyers for Mr. Kennedy have argued that this purported “trend” is illusory, and that the sentence in this case “is not only cruel and unusual; it is cruel and unique.” How the High Court comes down on this issue, of course, remains to be seen. The case is likely to be argued in April and a decision will likely be reached before the Court recesses sometime in June$.</p>
<p>If you or a loved one have been arrested for or charged with rape, you should know that Wallin & Klarich (http://www.wklaw.com/areas-sex-crimes.html) has 30 years experience in defending people charged with rape. Please contact our firm right away for a free consultation to see what we can do for you.</p>
<p>(1. While the victim was age 16 years, the Court’s finding that she was an “adult” was likely compelled by the fact that she was married.)</p>
About the Author:
I have over twenty-nine years of experience handling all types of criminal defense matters, and currently supervise serious felonies being handled by our law firm. In addition, I have extensive experience in both juvenile crimes and juvenile dependency matters. We pride ourselves in doing all we can to put our clients at ease during a time of great personal stress in their lives when they are facing allegations of criminal misconduct. You are in good hands when you decide to retain Wallin & Klarich (http://www.wklaw.com) to assist you in your time of need.
Sat, 12 Apr 2008 19:10:26 - 100%
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