The United States Supreme Court agreed on January 4, 2008 to review the case of a man in Louisiana who was sentenced to death for the rape of a child who did not die. Of the approximately 3,350 people on death row in the U.S., only two inmates have received the death penalty for this type of offense. Patrick Kennedy was convicted and sentenced to death in 2004 for the rape of his 8-year-old stepdaughter. That judgment was affirmed by the Louisiana Supreme Court in Louisiana v. Kennedy, No. 05-KA-1981 on May 22, 2007.
Kennedy challenged his sentence as a violation of the Eighth Amendment based on the rarity of a death sentence for this crime. (Richard Davis was also on Louisiana's death row for a similar crime.) No one in the U.S. has been executed for a crime other than murder since 1964. The Court last considered a related issue in 1977 when it prohibited capital punishment for the rape of an adult in Coker v. Georgia. While that case did not specifically address the rape of children under the age of 12, the decision was viewed by some as limiting the death penalty to the crime of murder.
1. Whether the Eighth Amendment’s Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a child with the death penalty.
2. If so, whether Louisiana’s capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty.
Among the briefs filed with the U.S. Supreme Court requesting that Kennedy's sentence be reviewed and overturned was the brief filed by a group of social-worker organizations: The National Association of Social Workers, the Louisiana Chapter of National Association of Social Workers, the Louisiana Foundation Against Sexual Assault, the Texas Association Against Sexual Assault, and the National Alliance to End Sexual Violence. These organizations argued that, "The Court Should Intervene Now To Eliminate The Death Penalty For Child Rape, A Penalty That Harms Abused Children Rather Than Helps Them," for three main reasons:
- "Permitting the death penalty for child rape will worsen the problem of under-reporting sexual abuse."
- "Allowing Louisiana to execute child rapists will increase the incentives on child molesters to kill their victims."
- "The Louisiana statute would subject child victims to an increased number of trials and appeals, forcing them to relive painful events repeatedly and disrupting the healing process."
Five other states have laws allowing the death penalty for a sexual assault against a minor, though no one has been sentenced to death in those states (Montana, South Carolina, Oklahoma, Georgia, and Texas).
(See “Justices to Decide if Rape of a Child Merits Death,” by L. Greenhouse, The New York Times, January 5, 2008).
The U.S. Supreme Court struck down as unconstitutional the Louisiana statute that allowed the death penalty for the rape of a child where the victim did not die. In Kennedy v. Louisiana, the Court held that all such laws, where the crime was against an individual and no murder was committed, were contrary to the national consensus restricting the death penalty to the worst offenses. As a result, the only two people sentenced to death for this crime in the modern capital punishment era no longer face execution. Both were sentenced under the Louisiana statute that was found unconstitutional. No one is now on death row for any offense except murder.
The Court noted that the defendant, Patrick Kennedy, had been sentenced to death under a law that was embraced by only 6 out of the 50 states. Justice Anthony Kennedy, writing for the 5-4 majority, stated, "Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments." The Court pointed to the danger in laws such as Louisiana's, which allowed the death penalty where no murder was committed: "When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."
Victims' groups and child advocates had concluded that the death penalty for child rape could actually harm children, rather than protect them. Some of the reasons they cited included a possible decrease in reporting, re-victimization through the lenthy appeals or re-trials, and that equating rape to muder sends the wrong message to child victims.
Read the decision: Kennedy v. Lousiana, 07-343 U.S. (2008)) (See modified opinion following note about rehearing).
On October 1, the U.S. Supreme Court denied Louisiana's request for a rehearing of the Court's ruling striking down the death penalty for non-homicidal offenses against individuals. Louisiana contended that a recent adjustment to military law that continued to allow the death penalty for child rape should have been taken into account by the Court, resulting in a different opinion. The Court slightly modified both the majority and dissenting opinions to include reference to the military code. The Court issued a statement, leaving intact its decision not only reversing Patrick Kennedy's death sentence for child rape, but also holding that the death penalty would be disproportionate for any crime against an individual in which the victim is not killed. The statement said, in part:
[A]uthorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context. The military death penalty for rape was in effect before the decisions in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), and Coker v. Georgia, 433 U. S. 584 (1977); and when the Court surveyed state and federal law in Coker, it made no mention of the military penalty.
. . .
That the Manual for Courts-Martial retains the death penalty for rape of a child or an adult when committed by a member of the military does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional.
(Kennedy v. Lousiana, 07-343 U.S. (modified opin. Oct. 1, 2008); Order modifying the opinion and the dissent; and JJ.Kennedy, Souter, Stevens, Ginsburg & Breyer opinion respecting denial of rehearing; and J. Scalia & C.J. Roberts opinion respecting denial of rehearing, Oct. 1, 2008).
Transcript of the US Supreme Court Argument
I. US Supreme Court
Amicus Filings: in Support of the Petitioner
- National Association of Social Workers, The Louisiana Chapter of National Association of Social Workers, the Louisiana Foundation Against Sexual Assault, the Texas Association Against Sexual Assault, and the National Alliance to End Sexual Violence, the New Jersey Coalition Against Sexual Assault and the Minnesota Coalition Against Sexual Assault
- Louisiana Association of Criminal Defense Lawyers and the Louisiana Public Defenders Association
- National Association of Criminal Defense Lawyers and Twelve Innocence Projects
- Leading British Law Associations, Scholars, Queen's Counsel and Former Law Lords
- NAACP Legal Defense and Educational Fund, the American Civil Liberties Union, and the ACLU of Louisiana
Amicus Filings: in Support of the Respondent
- Texas, Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina, and Washington
- Missouri Governor Matt Blunt and Members of the Missouri General Assembly
Petition for Rehearing
- Petitioner Kennedy's Brief Opposing Rehearing
- Louisiana's Final Brief in support of a Rehearing
- U.S. Solicitor General's Brief in support of a Rehearing
II. Petition for Certiorari
Amicus Filings: in Support of the Petitioner
- Louisiana Public Defender Association
- National Association of Criminal Defense Lawyers
- National Association of Social Workers, The Louisiana Chapter of National Association of Social Workers, the Louisiana Foundation Against Sexual Assault, the Texas Association Against Sexual Assault, and the National Alliance to End Sexual Violence
III. Direct Appeal
- Kennedy Brief
- Kennedy Supplemental (8th Am. issue)
- Kennedy Letter Brief
- Kennedy Brief in Reply
- Sentence Review Memorandum
State Documents: Appeal
- State's Motion to Supplement on Appeal
- State's Brief on Appeal
- State's Sentence Review Memorandum on Appeal
States That Allowed the Death Penalty for the Sexual Assault of a Child
Forty-four states barred the death penalty for child rape prior to the Court's decision. Although the following six states allowed the death penalty for this crime, Louisiana was the only state that sentenced an offender to death and was the only state that imposes the death penalty for first-time offenders convicted of child rape.
||Second conviction for rape of a child under 14; first offense could have occurred prior to law's passage; Bill HB 8||2007||0/0||Passed by legislature; signed by governor on July 16, 2007|
||Rape or forcible sodomy of a victim under 14 where the defendant had a prior conviction of sexual abuse of a person under 14; 10 Okl. St. Ann. § 7115(I)||2006||0/0|
||Repeat offenders of criminal sexual conduct with a minor under 11;
S.C. Code Ann. § 16-3-655(C)(I)
||Second conviction for sexual intercourse without consent accompanied by serious bodily injury;
Mont. Code Ann. sec. 45-5-503
||Aggravated rape of a child under 13;
La. Rev. Stat. Ann. sec. 14:42(D)(2)
|1995||2/0||Statute upheld in State v. Kennedy on May 22, 2007; similar statute upheld in State v. Wilson, 685 So.2d 1063, 1073 (La. 1996) but defendant did not receive a death sentence. Victim under age 13, rather than 12, was added more recently (Acts 2003, 2006).|
|Georgia||Carnal knowledge of a female who is less than 10 presumes force;
Ga. Code Ann. sec. 16-6-1
|1999||0/0||In 2006, Georgia's legislature revoked its general capital rape statute, but it is unclear whether the rape of a minor could be pursued as a capital crime.|
|U.S. Military||10 U. S. C. §856; Manual for Courts-Martial, United States, Part II, Ch. X, Rule 1004(c)(9) (2008); id., Part IV, ¶45.f(1).||Modified 2006||0/0||Although the impact of Congress' modification of the military law is unclear, the U.S. Supreme Court concluded that military law does not impact the evaluation of the national consensus regarding the death penalty for child rape under civilian law.|
LaFASA Statement on Kennedy v. Louisiana Decision
LaFASA Statement on Kennedy v. Louisiana Decision
June 25, 2008
The Louisiana Foundation Against Sexual Assault (LaFASA) supports the Supreme Court's decision, released this morning to overturn the death penalty for child sexual assault cases. Victim advocates have long been concerned that the death penalty for child sexual assault cases could backfire and result in fewer convictions of sex offenders. The issue of child sexual abuse is complex. Most child sexual abuse victims are abused by a family member or close family friend. The reality is that child victims and their families don't want to be responsible for sending a grandparent, cousin or long time family friend to death row.
Today we join sexual assault coalitions across the country in applauding the Supreme Court's step toward ensuring that prosecutions of child sexual assault across our nation remain victim-centered and child-friendly in their approach. Our work, however, is not yet complete. We remain dedicated to finding effective ways to increase reporting rates, support victims, and keep Louisiana communities and children safe.
- Newspaper Articles:
- "Justices to Decide if Rape of a Child Merits Death" by Linda Greenhouse, The New York Times, January 5, 2008
- Law Review Articles:
- "THE DEATH PENALTY: Unwise for Child Rape" by Vivian Berger, The National Law Journal, January 21, 2008
- "Assessing the Constitutionality of Capital Child Rape Statues" by Merly Diamond, St. John's Law Review, Fall 1999
- "More about Politics than Child Protection: The Death Penalty for Sex Crimes Against Children" by Amnesty International, 2006
- Web sites: