Judicial rarity: death penalty in a rape case

A Louisiana man has quietly become the first person in more than a quarter century to be sent to a state's death row for a crime not involving murder.

Patrick Kennedy was convicted and sentenced to death recently under a 1995 state law that allows for the punishment in cases of rape involving children under age 12. The victim was his 8-year-old stepdaughter, whom he repeatedly raped in 1998, prosecutors say.

Legal experts in Louisiana believe the case will be overturned and the law deemed unconstitutional upon review, but it has focused attention on a difficult moral question: whether the ultimate punishment should be applied in cases other than murder.

A few states have capital-crime laws for crimes such as treason and train wrecking, but almost all are considered outdated and are not used by prosecutors.

The federal government has several nonmurder crimes punishable by death, including espionage, drug trafficking, and kidnapping, and it is becoming much more aggressive in pursuing this sentence. But federal juries remain largely unconvinced that capital punishment should be used for anything but murder and are handing down life sentences instead, death-penalty experts say.

The case against Mr. Kennedy thus stands out, because a state jury found the details warranted death.

While not the first time the state has pursued the sentence in the case of child rape, it is the first time a jury has agreed to impose it.

"The FBI rates rape as the second most violent crime to murder. So in some sense it is the next most logical one to include, though it's certainly not appropriate in all cases," says Jamie Zuieback, spokeswoman for the Rape, Abuse & Incest National Network in Washington.

Missouri, in 1964, was the last state to execute someone for rape. Many states had such laws on the books until 1977 when the US Supreme Court ruled that the death penalty could not be imposed in the rape of an adult woman. The justices called the sentence disproportionate to the crime, and outlawed it as cruel and unusual punishment.

Louisiana drafted its child-rape law in 1995 and is the only state with such a specific law. Florida and Montana have capital-rape laws on their books, but prosecutors don't take use them.

After it was upheld by the Louisiana Supreme Court in 1996, those opposed to the child-rape law tried to get it heard at the US Supreme Court. It was denied because, at the time, no one had been sentenced under the law.

Now, opponents of the law are confident that Mr. Kennedy's sentence will make its way to the high court, where it will be found unconstitutional, based on the fact that public opinion is overwhelmingly against the law. Even in Louisiana juries have, until now, been unwilling to use the sentence when given the option.

Part of the problem with such a law, says Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assault, is that children are required to testify against their attacker - most often a family member or friend.

Indeed, 93 percent of all juvenile sexual-assault victims knew their attacker, according to US Department of Justice statistics from 2000.

"Being held responsible for killing Uncle Sammy is just too heavy a burden to place on the shoulders of an 11-year-old," says Ms. Benitez. "There are already so many hurdles in getting a child to come forward."

The possibility of a death sentence may lead to even greater underreporting by children. Opponents also believe that such a law will lead to a greater number of child murders, since the attacker may feel no incentive to stop at rape.

But others, such as victims of rape, say the punishment is warranted.

"Life in prison for her attacker is in no way equivalent to the lifelong mental prison that this child will have to endure," said an editorial by one such victim in the Times-Picayune.