WASHINGTON, June 25, 2008— -- In a closely divided opinion today, the Supreme Court found that while the crime of raping a child is a "revulsion" to society, it does not merit the death penalty.
Justice Anthony Kennedy, writing for a 5-4 majority, found that "a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional."
Louisiana and five other states have laws imposing the death penalty for that crime. The ruling today overturned those laws.
The decision and a fiery dissent from the conservative justices explored the controversial moral questions society must face in addressing the topic of child rape.
Kennedy acknowledged as much, writing that such a crime "cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on the victim."
"We cannot dismiss the years of long anguish that must be endured by the victim of child rape," he wrote. But he said that capital punishment is not a "proportionate" penalty for the crime.
In an emotional dissent, Justice Samuel Alito criticized the majority for finding that the crime of child rape should be penalized differently from that of some murders. He said, "With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist."
Alito said, "In the eyes of ordinary Americans, the very worst child rapists — predators who seek out and inflict serious physical and emotional injury on defenseless young children — are the epitome of moral depravity."
While the majority said that only a small number of states had enacted the death penalty for child rape, Alito argued that such efforts could have grown in the upcoming years, but the court's decision "snuffs out" such a possibility.
Advocates for child's rights praised the decision. They condemned Louisiana's law because they were fearful that the if a child rapist knew he might face the death penalty he would have an incentive to kill his victim.
The case that went before the court dates back to 1998, when Patrick O. Kennedy called 911 to report that his 8-year-old stepdaughter had just been raped.
Kennedy blamed two boys from his suburban New Orleans neighborhood for the attack and told police that the boys had fled on bicycles, but police soon suspected Kennedy of the crime.
At trial, the girl, who had required surgery after the attack, testified that Kennedy had raped her and that he had coached her to lie to police.
Testimony at trial also revealed that Kennedy had called a carpet cleaning company about removing bloodstains from his carpet even before dialing 911.
Kennedy's crime was considered so heinous that he was sentenced to death under Louisiana law, which imposes the death penalty for the rape of a child.
According to the Death Penalty Information Center, a group opposed to the death penalty, there are more than 3,300 people on death row in America, and Kennedy is one of only two who did not commit murder.
Kennedy had argued that laws in Louisiana and five other states that impose the death penalty for child rape violate the Constitution's ban on cruel and unusual punishment. Kennedy's lawyers praised today's decision.
"The Court makes clear that Louisiana's experiment with the death penalty for rape ran afoul of the United States Constitution," Ben Cohen, of the New Orleans-based Capital Appeals Project, said.
The organization has represented Kennedy for the past four years.
"Given the Court's decision, we can only hope that the money that Louisiana has been spending drafting and defending this anomalous and unconstitutional statute will be reallocated to efforts at treatment for victims of sexual abuse and for measures that actually reduce the risk of such abuse in our communities," Cohen said.
Representatives of Louisiana had argued strenuously for the law.
"In this instance, the victim was an 8-year-old girl who was asleep in her own bed in the morning and found her 300-pound stepfather violently physically raping her," Texas Solicitor General Ted Cruz said during oral arguments.
But some victims of child rape also supported Kennedy. Jody Plauche, now 36, who was raped and kidnapped as a child, says that the possibility of the death penalty adds too much burden to the child.
"A child who's been raped has been through enough," he said.
He points out that the offenders are usually a trusted adult and he worries the children will feel "extra trauma" if they know that the offender might die if the child reports the crime.