Judy Benitez after Supreme Court hearing.

WASHINGTON (WOMENSENEWS)–Does the rape of a child deserve the death penalty, when the rape of a woman does not?

The Supreme Court considered the question Wednesday in a case probing the constitutionality of a Louisiana law that allows state prosecutors to seek the death penalty against criminals convicted of raping girls and boys under age 12.

Capital punishment for adult rape–where women are the vast majority of victims–was ruled unconstitutional 30 years ago in Coker v. Georgia. In that case, the high court argued that death was too excessive a punishment for a crime that did not take away life.

But lawyers representing the state argued that the rape of a child is a more serious offense and deserves a harsher penalty.

“Young children, particularly prepubescent children, are especially vulnerable and especially unprepared to deal with the emotional devastation that comes from child rape,” Texas Solicitor General Ted Cruz, who argued the case before the high court, said.

The Louisiana law allowing for lethal injection for child rapists, he said, is necessary for deterrence and retribution.

But critics say the law–and similar laws in five other states–reflect an undercurrent of cultural antipathy toward women.

“Once somebody becomes an adult it’s as if we’re not concerned about sexual violence against them,” said Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assault in Hammond, La. “It’s as though it’s not as serious as a child.”

Death Penalty for Stepdaughter’s Rape

In 2003, Patrick Kennedy was sentenced to death for raping his 8-year-old stepdaughter.

Kennedy appealed to the Louisiana Supreme Court, arguing that the sentence violated the Eighth Amendment’s constitutional protection against cruel and unusual punishment.

The Louisiana Supreme Court upheld the sentence. In reaching its conclusion, the court argued that the recent adoption of capital child rape statutes in six states signaled a national trend in favor of harsher penalties for child–but not adult–rapists.

The Supreme Court agreed to hear Kennedy’s appeal in January.

In Wednesday’s oral arguments, the justices appeared to agree that child rape falls in a separate category from adult rape, but were divided over whether it merits death.

Justice Ruth Bader Ginsburg–who prior to her judicial appointment helped launch the Women’s Rights Project at the American Civil Liberties Union in New York–joined other justices in making a distinction between adult and child rape.

In the distant past, rapists of adult women were killed in part because raping a woman was seen as destruction of a husband or father’s property, she said. “Making rape equivalent to murder was no kindness to women because it said once you’ve been raped you’ve been spoiled,” Ginsburg elaborated. “There’s no parallel to child rape,” she said.

Reflecting Citizen Judgment

During the hearing, Justice Antonin Scalia seemed to support legislative efforts to expand the death penalty. State governments, he suggested, are entitled to pass laws that reflect citizens’ moral judgment on capital punishment. “The trend here is clearly in the direction of permitting more and more” crimes to be eligible for the death penalty, Scalia said.

At the other end of the ideological spectrum, Justice Stephen Breyer worried that allowing states to put child rapists to death would trigger a flood of new laws that would lead to a dramatic expansion of the death penalty.

“I’m not a moralist, I’m a judge,” he said, adding that if the argument were accepted it would open the door to more states passing death penalty laws for non-homicide crimes.

In recent years, the Supreme Court has circumscribed eligibility for the death penalty, ruling it unconstitutional in cases involving juveniles and the mentally retarded.

Other justices seemed to search for ways to narrow the scope of Louisiana’s law so only the most horrific crimes–such as child rape involving intent to kidnap or multiple victims–would be eligible for the death penalty.

Prevalence of Crime

Eighteen percent of U.S. women–or about 1 in 6–have been victims of an attempted or completed rape in their lifetime, according to the Rape, Abuse and Incest National Network, a victim service provider in Washington, D.C. Three percent of U.S. men, or 1 in 33, has experienced attempted or completed rape.

Ted Cruz of Texas talks to TV reporters.

Forty-four percent of victims of rape or sexual assault are under age 18, according to the network.

Data breaking down child rape by gender were not available. But the network cited statistics that 7 percent of girls in grades 5-8 have been sexually abused and 3 percent of boys in the same age range.

Executing child rapists will make victims less likely to report crimes, exacerbating the problem of underreporting sexual assault of children, according to a friend-of-the-court brief filed by the Louisiana Foundation Against Sexual Assault, the Texas Association Against Sexual Assault, the National Alliance to End Sexual Violence and other groups.

Moreover, punishing child rape with death will give perpetrators an added incentive to kill the victim, who is often the sole witness to the crime, according to the brief. In addition, making child rape a capital offense would protract the trial and generate publicity, intensifying trauma experienced by victims, the brief states.

“By permitting the execution of perpetrators of child sexual abuse, the statute will likely have exactly the wrong effect: Rather than protecting children, this statute will increase the number of victimized children, encourage offenders to kill their victims and interfere with victims’ healing process.”

Allison Stevens is Washington bureau chief at Women’s eNews.

[Past Stories by Allison Stevens]

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For more information:

Brief for petitioner Patrick Kennedy:

Brief for Respondent State of Louisiana

Brief for the National Association of Social Workers, et al

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