U.S. top court to hear La. child rape case
by Paul Purpura, The Times-Picayune
April 14, 2008 08:19AM
Revisiting for the first time in more than 30 years the question of whether the death penalty is an appropriate punishment for rape, the U.S. Supreme Court will hear arguments Wednesday in the case of a Jefferson Parish man who was sentenced to die for raping a child in Harvey.
Attorneys for Patrick O'Neal Kennedy want the nation's high court to rule as unconstitutional the Louisiana aggravated-rape statute provision that lets prosecutors pursue the death penalty against people convicted of raping children younger than 13.
A majority of state Supreme Court justices upheld the 1995 statute last year, ruling the rape of a child "is like no other crime." Kennedy's attorneys argue the law is contrary to the Eighth Amendment's cruel and unusual punishment clause.
Legal experts say a ruling would clarify a 1977 U.S. Supreme Court decision, Coker v. Georgia, which banned the death penalty for rape of an adult.
"We're basically just saying the United States Supreme Court should follow Coker," said Billy Sothern of the Capital Appeals Project in New Orleans, which represents Kennedy.
The case is not expected to have widespread impact on whether death is the appropriate punishment for offenses in which victims do not die. Only two men are on death row for raping children, both in Louisiana. Four other states have similar laws.
"Obviously, if the Supreme Court says that the death penalty is a disproportionate punishment for the crime of a rape of a child, then that would invalidate the Louisiana statute and it would invalidate the statutes in several other states," said John Blume, a Cornell University law professor and director of the Cornell Death Penalty Project. "It would shut the door on that issue, which many people thought had been shut in Coker v. Georgia."
8-year-old victim
Until December, Kennedy, 43, was the only person out of more than 3,300 nationwide who was on death row for rape. He was convicted in 2003 of raping an 8-year-old relative in the Woodmere subdivision March 2, 1998.
The girl initially told detectives she was selling Girl Scout cookies from the family's garage when two teenagers dragged her to a neighboring yard and raped her. Detectives said Kennedy fashioned the story and booked him with aggravated rape, months before the girl recanted and told police Kennedy raped her in her bed.
If the Supreme Court strikes down Louisiana's statute, the conviction will still stand, Jefferson Parish District Attorney Paul Connick Jr. said, as the court is only considering whether the death penalty is warranted in child rape cases.
"If they said it's not, we don't have to retry the case," Connick said, adding that Kennedy would be resentenced to life in prison with no chance of parole.
Jefferson Parish prosecutors argue the punishment fits the crime, pointing out the girl's injuries, requiring surgery, and Kennedy's initial attempts to cover up the crime. In arguing before the state Supreme Court last year, prosecutor Juliet Clark, who will present Louisiana's position Wednesday, said child rape is comparable to murder.
"It's the murder of a victim's innocence," Clark said.
Other states' support
Texas, Oklahoma, Montana and South Carolina, which also have laws allowing the death penalty for child rapists, supported Louisiana's statute in briefs filed before the Supreme Court. Those laws represent a trend toward making child rape a capital offense, they say, expecting that justices in part will base their ruling on whether there's a national and international consensus in support of executing child rapists.
The Louisiana Supreme Court found last year there is such a trend. Missouri, in its brief supporting Louisiana, says it, Colorado, Mississippi, Alabama and Tennessee are considering similar laws.
Nine other states, led by Texas, also side with Louisiana, saying in a brief that Kennedy's act "was so heinous that it marks him among the worst type of criminal offenders, deserving of the death penalty."
But in their brief, British jurists and academics conclude that Louisiana has gone against the international grain, as offenses that carry the death penalty have grown fewer.
Burt Foster, a visiting criminal justice professor at Michigan's Saginaw Valley State University and an author on the death penalty, said Louisiana created "a blip" in passing its statute, and followed with another by sending two convicts to death row.
"Neither of those blips have inspired corresponding blips in other states," Foster said, adding that since 2002, the Supreme Court has ruled that the mentally retarded and juvenile offenders cannot be executed, and the number of death sentences handed down by juries in the past decade has reduced dramatically.
"The death penalty has sort of generally narrowed or withered in its application," Foster said.
It's a view shared by Sothern of the Capital Appeals Project: "A small ripple of states in the past decade passing legislation does not in any shape or form constitute a trend."
Opponents of law
Criminal defense attorneys and social worker groups, including the Hammond-based Louisiana Foundation Against Sexual Assault, have filed briefs opposing the law.
Children are unreliable witnesses, the attorneys say. The social workers say the specter of death could lead rapists to kill their victims to eliminate witnesses. Also, they say, the majority of victims know their attackers as family or friends.
"We know that child rape cases are extremely underreported," said Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assault, a nonprofit organization of sexual assault centers. "We're afraid that where there's a possibly of death, this will increase underreporting."
In the Coker case, the high court viewed the victim -- a married 16-year-old -- as an adult. The decision left open the question of whether child rape was a capital offense.
Jefferson Parish prosecutors twice failed to persuade juries to recommend death to convicted rapists before they succeeded with Kennedy. In December, a Caddo Parish jury recommended that Richard Davis die for raping a 5-year-old girl.
No one has been executed for rape in the United States since 1964. The last time Louisiana executed a rapist was in 1957. The last time Jefferson Parish carried out an execution for rape was in 1952, when two men were electrocuted at the parish courthouse in Gretna, Foster said.
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Paul Purpura can be reached at
ppurpura@timespicayune.com or (504) 826-3791.
