Lawyers for a Louisiana man who received a death sentence for raping a child will get the chance to argue before the U.S. Supreme Court why they believe he should be spared the death penalty.
Patrick Kennedy was accused of raping his 8-year-old stepdaughter in 1998, badly injuring her during the crime. She testified against him five years later at the trial. When Kennedy was sentenced, he received the death penalty — a punishment typically reserved for those who commit murder.
Kennedy's legal team wants the court to declare Louisiana's law allowing the death penalty for child rape unconstitutional. Only two people in the United States are on death row for nonhomicide offenses, and both are in that state.
Some unusual allies have filed briefs supporting Kennedy's case: victims' rights organizations. The groups contend that supporting a death penalty law in such cases could carry terrible consequences, such as encouraging rapists to kill their victims.
Victoria Camp at the Texas Association Against Sexual Assault, said courts shouldn't be "revictimizing the victims" of these assaults. Camp also said that Justice Department statistics show that more than 90 percent of child assault victims were abused by a family member or close family friend. She said, "It's too hard for a child victim to have to testify against 'Uncle John' when they know he may be put to death."
The issue before the court will be to consider whether the Eighth Amendment's Cruel and Unusual Punishment clause permits a state to impose the death penalty — a punishment usually reserved for those convicted of murder — for child rape.
If that is the case, Kennedy's attorneys ask a second question: Does Louisiana's capital rape statute violate the Eighth Amendment because it doesn't set clear guidelines for juries as to who is eligible for the death penalty?
Last month, Richard Lee Davis became the second man in the United States on death row for a nonhomicide offense after a jury convicted him of raping a 5-year old child and the court sentenced him to death. Davis joined Kennedy on Louisiana's death row.
Assistant District Attorney Brady O'Callaghan said that Davis "committed the worst offence." Another assistant district attorney on the case, Lee Hall, said that Davis' sentence should send a message of "no tolerance" to those that would abuse a child.
Jelpi P. Picou Jr., director of the Capital Appeals Project, has taken up both Kennedy's and Davis' cases. Picou said that it is important to point out that Kennedy "has maintained his innocence since the beginning." Picou also said that there was "no physical evidence linking him [Kennedy] to the crime."
Though the death penalty is used almost exclusively for murderers, there are some federal statutes that call for capital punishment even without the death of a victim.
But there has not been an execution for rape in the United States since 1964, and no one has been executed for such a crime since the death penalty was reinstated in 1976.
The U.S. Supreme Court last looked at this issue in 1977, when it held that the death penalty for the rape of an adult was "grossly disproportionate" and "excessive punishment" and was unconstitutional under the Eighth Amendment.
The state law that sent Kennedy to death row was enacted in 1995, with few legislators arguing against it. A year later, the Louisiana Supreme Court, in a 5-2 decision, ruled that the law was constitutional.
Last year, Texas joined six other states with statutes allowing for the death penalty for the rape of a child. The others are Florida, Louisiana, Montana, Georgia, South Carolina and Oklahoma. One more state, Missouri, is considering similar legislation.
The justices will hear arguments in the Kennedy case sometime before the end of the term in June.