In 2008, proponents of capital punishment for rape believed they had a winning case that would allow the use of capital punishment for some nonlethal crimes. Patrick O’Neal Kennedy from Harvey, Louisiana was sentenced to death after he was convicted of raping his eight-year-old stepdaughter. The rape was uncommonly brutal in its severity. The injuries that Kennedy’s stepdaughter sustained from the repeated rapes required emergency surgery. Kennedy initially maintained that the battery was committed by two neighborhood boys. He even refused to plead guilty when a settlement was offered to spare him from a death sentence. In 2003, Kennedy was convicted and sentenced under a 1995 Louisiana law that allowed the death penalty for the rape of a child under the age of 12. The Court did not share the same optimism that proponents of capital punishment did. The majority, relying on the precedent of the ESD Doctrine, overturned the death penalty since the rape, though it did involve a child, did not result in the death of the victim (544 U.S. 407).
First, the Court in Kennedy v. Louisiana found that “the evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it” (544 U.S. 407). The Court, according to the ruling, felt that the issue was sufficiently clear-cut and settled. As a result, the case had already fallen victim to one of the three prongs of the national consensus test.
Next, the majority recalled that as legislative attitudes went, “in Furman’s aftermath only six States reenacted their capital rape provision…[b]y contrast, 44 States have not made child rape a capital offense” (544 U.S. 407). This majoritarian denial of using capital punishment in cases of child rape signaled to the Court that the death penalty had become antiquated, thereby failing a second prong of the national consensus test.
Finally, in appealing to the jury’s historical use of capital punishment, the Court pointed out that “no individual has been executed for the rape of an adult or child since 1964, and no execution for any other nonhomicide offense has been conducted since 1963” (544 U.S. 407). Similar to the reasoning in Coker v. Georgia, the majority interpreted this fact to mean that the national consensus went against the use of capital punishment for child rape cases.
Moving beyond legislative enactments and jury sentencing data, the Court also included several legal/administrative arguments that focused on the Court’s interest in protecting child rape victims. Some of these were pragmatic, some of them were procedural, and some overlapped with one another. However, they all had an empirical bend to them. This could, arguably, be taken as their attempt to show that the first horn of the proportionality requirement was not met, that using the death penalty against convicted child rapists would not actually further any goals of punishment.
The Court asserted that “we find it difficult to identify standards that would guide the decisionmaker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way” (544 U.S. 407). The Court did not want to uphold the constitutionality of the death penalty for rape cases if it was going to be applied in an arbitrary or partial manner, something the Court felt could not be avoided even if there were instances of aggravating factors that could be significant to the holding of a case. Rather, the Court reaffirmed its precedent – that the use of capital punishment for rape was deemed always disproportionate, regardless of the victim.
The Court also included an argument concerned predominantly with the well-being of the child throughout the rape trial. The majority stated “it is not at all evident that the child rape victim’s hurt is lessened when the law permits the death of the perpetrator” (544 U.S. 407). The Court described the possibly lengthy and painful experiences that child may face. These included the continued exposure to the trauma caused by the rape while the case worked its way through a legal system rife with lengthy appeals processes, not to mention the possible declaration of a mistrial. The Court decried the possibility of this happening, stating that this would place an unfair pressure on the child to not only help determine the life or death of an adult, but also to do so during adolescence, a time of rapid physical and emotional change and growth (544 U.S. 407).
Furthermore, the majority alluded to a problem with the reliability of child testimony in a court of law. The justices mentioned “the problem of unreliable, induced, and even imagined child testimony” means there is a “special risk of wrongful execution in some child rape cases” and that certain academic “studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement” (544 U.S. 407). As a result, the majority believed that laws permitting the use of capital punishment in rape cases would potentially put innocent individuals to death, a seeming miscarriage of justice. To avoid this course of events, the Court reasoned, Louisiana’s law had to be struck down.
In addition, the majority asserted that “when the punishment is death, both the victim and the victim’s family members may be more likely to shield the perpetrator from discovery, thus increasing underreporting. As a result, punishment by death may not result in more deterrence or more effective enforcement” (544 U.S. 407). According to the majority, if the use of capital punishment increased underreporting, it would not result in more deterrence or enforcement of existing rape laws. Therefore it would fail one criterion of the proportionality requirement of punishments.
Finally, the majority claimed that using capital punishment in child rape cases may actually put the victims into more harmful situations: “By…making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim” (544 U.S. 407). The Court here assumed that a rapist, when faced with the decision to rape or rape and murder, knowing that the penalty for conviction is identical (capital punishment), will have no reason not to murder the victim as well. Thus, upholding Louisiana’s legislation could further harm the victims of child rape.