The U.S. Supreme Court ruled 5-4 today that the Eighth Amendment’s prohibition against cruel and unusual punishments bars the imposition of the death penalty for the rape of a child.
While the decision in Kennedy v. Louisiana (Case No. 07-343) does not directly implicate the school and institutional sex-abuse scandals of the last decade, there are some points in the majority and minority opinions that bear discussion from that perspective.
In the majority opinion, Justice Anthony M. Kennedy notes that the rape of a child, such as that of the 8-year-old victim in this case by her stepfather, is an attack “not just on her but on her childhood.”
“Rape has a permanent psychological, emotional, and sometimes physical impact on the child,” Justice Kennedy said. “We cannot dismiss the years of long anguish that must be endured by the victim of child rape. It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the state’s power to punish be exercised within the limits of civilized standards.”
Kennedy also noted that to uphold Louisiana’s statute authorizing the death penalty could subject many more people to the death penalty. Some 5,700 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005, the justice said.
“This is almost twice the total incidents of intentional murder for vicitims of all ages,” Justice Kennedy said.
Justice Kennedy also expressed concerns about the “problem of unreliable, induced, and even imagined child testimony,” which means “there is a special risk of wrongful execution in some child rape cases.”
And the possibility of the death penalty for child rape could exacerbate the problem of underreporting of child sexual abuse.
“The experience of the [groups] who work with child victims indicates that, when the punishment is death, both the victim and the victim’s family members may be more likely to shield the perpetrator from discovery, thus increasing underreporting,” Justice Kennedy said, citing a friend-of-the-court brief filed by the National Association of Social Workers. “As a result, punishment by death may not result in more deterrence or more effective enforcement.”
Kennedy’s opinion was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer.
Justice Samuel A. Alito Jr., in a dissent joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas, said that contrary to Justice Kennedy’s assertion that a national consensus had evolved in opposition to the deathy penalty for child rape, that five states in recent years have authorized capital punishment for such crimes. And even more might have if they weren’t dissuaded by ambiguity over the high court’s 1977 ruling in Coker v. Georgia , which barred the death penalty in cases of the rape of an adult, Alito said.
Since that time, “reported instances of child abuse have increased dramatically, and there are many indications of growing alarm about the sexual abuse of children,” Justice Alito said, citing among other things states that bar sex offenders from residing close to schools.
“The harm that is caused to the victims and to society at large by the worst child rapists is grave,” Justice Alito said. “It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty. The [majority] provides no cogent explanation why this legislative judgment should be overridden.”