There is continuing commentary about the U.S. Supreme Court's ruling last month in Kennedy v. Louisiana. Today's Sacramento Bee has the OpEd, "Death penalty for child rapists risks fatal injustice." by Ken Rosenfield.
The U.S. Supreme Court, in a 5-4 decision last month, struck down a Louisiana law that imposed capital punishment for those convicted of raping a child. At the center of this decision was 43-year-old Patrick Kennedy, an African American man convicted of the brutal rape of his then-8-year-old stepdaughter. During the course of the investigation, the victim gave many varied accounts of her assault, at first blaming two neighborhood youths and only pointing the finger at her stepfather after several interviews by psychologists working with law enforcement.
The majority decision was delivered by Justice Anthony Kennedy of Sacramento. The court's newest justice, Samuel Alito, delivered a biting dissent. Justice Alito's opinion is chilling, not because of its legal reasoning that states should be allowed to enact laws as they see fit, but for the fact that he took the position that those who are convicted of raping a child should be executed, owing to the heinousness of the crime.
The use of capital punishment is founded upon two principles: retribution and deterrence. The majority found that evidence suggested the death penalty may not result in more effective enforcement but may indeed add to the risk of non-reporting. It's a statistical reality that the majority of sexual assaults on children occur at the hands of a parent, relative or close family friend. Thus, children may feel pressured not to report the abuse if there's a likelihood that the perpetrator may face execution. The idea, then, that capital punishment will act as a deterrent is unfounded, and the National Association of Social Workers filed an amicus brief in support of striking down the law for that reason.
South Carolina's Spartanburg Herald-Journal carried opposing OpEds on Sunday. "Creation of rape-death penalty statute was bad politics," is by Bobby Frederick.
The court takes note of the "relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, induced and even imagined child testimony, which creates a special risk of wrongful execution in some cases."
There are many problems with cases involving child testimony. Child molestation cases often arise in the context of divorces and custody disputes, and there are often problems with the testimony. One problem that arises quite often is the problem of suggestive interviewing techniques with children and the problem of repeated interviews.
I have seen cases where the interviewer asks the child leading questions (suggestive of the answer), the child denies the allegations, and the interviewer continues asking the same leading question in different ways or keeps coming back to the question, until the child gives the answer the interviewer is looking for.
This can be compounded by the effect of multiple suggestive interviews, often beginning with a family member who may be suspicious or have an ax to grind, followed possibly by other family members, followed by an officer and then one or more interviews by a child advocate.
The effect of suggestive interviews on a very young child, particularly when they are repeated, is that the child may begin to believe the allegations, even if they were not true to begin with. The state then has a very credible and believable witness with which to prosecute its case. In South Carolina and other states, laws have been passed that would allow the presentation of videotaped testimony by the child in court - without the opportunity to cross-examine and in violation of the right to confront witnesses.
The second Herald-Journal OpEd is, "Court's ruling reflects arrogant rationalization," by state senator Kevin Bryant.
In 2006, the S.C. General Assembly stood up for children when it passed legislation providing for the death penalty in cases where someone rapes a child. I led the fight for the inclusion of the death penalty sentencing in South Carolina's version of Jessica's Law, then making its way through the General Assembly. I view no moment of my service in Columbia with more significance than the day we won that vote.
Justice Anthony Kennedy, the author of the U.S. Supreme Court opinion, rationalizes the rape of a child as a lesser offense by saying that " 'in terms of moral depravity and of the injury to the person and to the public,' they cannot compare to murder in their 'severity and irrevocability …'. " Kennedy's definitions of "severe" and "irrevocable" apparently do not apply to the rape of a child.
Finally, Scripps Howard News Service distributed the editorial, "Painful but wise," Thursday afternoon.
The child-rape decision now joins a series narrowing the death penalty's scope. Within the past few years, other rulings barred its use against juveniles and mentally retarded people. The prohibition is especially welcome in the case of child rape. For one thing, children's testimony can be unreliable. It may easily be distorted by fear or imagination, or manipulated by adults. But also, child rapes often occur within a family. Knowing that a parent or other relative could be executed may frighten a child into silence, and continued victimization. Other family members might collude in shielding the offender.
The high court's decision in no way minimizes the seriousness of child rape. It does, however, acknowledge the unique character of the offense, and point toward potentially better responses. At the same time, it newly underscores the shortcomings of the death penalty.
Earlier coverage is here.
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