Saturday, January 5, 2008

Rape & the Death Penalty

In 3150 we discuss Coker v. Georgia (1977), an important Supreme Court decision which effectively ruled unconstitutional the application of the death penalty for the crime of rape. Building on the Gregg decision from the year before, the court essentially said a criminal must take someone's life (plus other aggravating factors) before the death penalty can be applied.

That's why news yesterday that the court has agreed to consider whether the "rape of a child" might fall differently outside of Coker's realm came as such a surprise.

"The Supreme Court said yesterday that it will decide whether the death penalty may be imposed on someone who rapes a child, reopening the issue of which crimes are punishable by death.

"The court said in 1977 that execution was an "excessive penalty for the rapist who, as such, does not take human life." But the victim in the case was an adult, and while 45 states now ban the death penalty for any kind of rape, the others allow it if the victim is a child."

Interestingly, most of the states that instituted the death penalty for the rape of a child did so during the zenith of the "get tough" mania of the mid 1990's.

"But in recent years, a handful of states, responding to public outcries about sex crimes against children, have amended their death penalty statutes to make the rape of a child a capital offense. Louisiana was the first to do so, amending its death-penalty law in 1995 to apply to the rape of a child under the age of 12. The other states with similar provisions are Georgia, Montana, Oklahoma, South Carolina and Texas."

The list of joining states is a shocker, I know. But as the Times piece notes, "while that ruling, Coker v. Georgia, did not specifically discuss the rape of a child — the victim, although only 16, was a married woman who was raped at knifepoint — the decision has been widely understood as limiting the death penalty to the crime of murder."

That's why the decision to hear the case is so surprising. It might suggest there are at least four justices who feel Coker does not address the death penalty for the rape of a child victim, per se, and the issue needs to be merely clarified. However, it could also mean there are four justices who believe the death penalty should be extended to crimes other than just "homicide plus".

The case is Kennedy v. Louisiana 07-343, and argument is set for April, with a decision due by June.

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