Child Sexual Assault and the Death Penalty

The U.S. Supreme Court said on Jan. 4 that it would hear the appeal of a Louisiana man condemned to die for the rape of his 8-year-old stepdaughter. The Supremes will be asked to decide whether the Eighth Amendment's ban on cruel and unusual punishment allows for the imposition of the death penalty as punishment for a crime that does not involve taking the life of another. Louisiana is one of five states – including Texas – that has decided the death penalty can be imposed for the crime of sexually assaulting a child, even if the child is not killed. So far, Louisiana is the only state that has actually imposed death in such circumstances. "Since children cannot protect themselves, the state is given the responsibility to protect them," a divided Louisiana Supreme Court ruled in upholding the state law. The court majority opined they could not think of a "non-homicide crime more deserving" of death.

The case, Kennedy v. Louisiana, will likely be heard in April. Jelpi Picou Jr., an attorney for condemned inmate Patrick Kennedy, said in a press statement that while "the vast majority of the world's developed countries have moved toward narrowing the use of capital punishment ... Louisiana has chosen to expand it significantly." Indeed, this was the view of the Supreme Court in 1977, which opined execution was an "excessive penalty" for rapists, "who, as such, [do] not take human life." The decision to add child sex assault to the list of death-eligible crimes is frowned upon by several influential groups, including the National Association of Social Work­ers, which argue such a law does not protect children – and an offender who knows he or she could face execution regardless of whether his or her victim lives has little motivation to spare the victim's life. The law, the group says, "will likely have exactly the wrong effect."