The United States Supreme Court in Coker v. Georgia (1977) held a Georgia statute imposing the death penalty for the rape of an adult woman unconstitutional for violating the Eighth Amendment’s protection against cruel and unusual punishment.1 The Court described punishment as cruel and unusual under the Eighth Amendment if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more that the purposeful and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.2 On May 22, 2007, the Louisiana Supreme Court in State v. Kennedy3 ruled that Coker only defined capital punishment as excessive for the aggravated rape of an adult, and upheld the state statute for aggravated rape which elevates rape to a capital crime if the victim is under twelve.4 Following in Louisiana’s footsteps, South Carolina5, Oklahoma6, Texas7, Montana8, Georgia9, and Florida10 have also added capital punishment for child rape.
Police officers responded to an emergency call in 1998 from Patrick Kennedy, reporting his eight year old step daughter was raped by two neighborhood boys. Upon arrival police discovered the child on her bed, bleeding profusely and Kennedy cleaning blood from the carpet and stairs. The child initially told police two boys dragged her out of her garage and raped her. Investigators were unable to find any evidence backing up the account, but did collect incriminating phone conversations and “urgent carpet cleaning” requests made by Kennedy. Later, the victim recanted her original interview, and told police her step-father Patrick Kennedy had raped her. The jury found Kennedy guilty of aggravated rape. At the sentencing hearing, the State presented evidence that Kennedy also raped his first wife’s eight-year-old cousin. Kennedy was sentenced to death rather than life in prison. Appealing the decision, Kennedy argued capital punishment for a non-homicidal crime is unconstitutional 11.
The Louisiana Supreme Court explained in the Kennedy decision that capital punishment for child rape aligns with evolving standards of decency, as evident from widespread implementation of “Jessica’s Laws.” In 2005, nine-year-old Jessica Lunsford died after John Couey, a convicted sex offender, sexually assaulted and buried her alive. In response, many states enhanced their sentencing laws for sex offenses involving child victims.
The Louisiana Court previously noted similar cases from Louisiana brought valid constitutional challenges, but denied review because the decision of the lower court was not final.12 Though the United States Supreme Court has not yet decided to hear the case, Kennedy is expected to set precedent for aggravated child rape laws, as the first case to determine whether a defendant may be sentenced to execution for a non-homicidal crime since 1977.
1 Coker v. Georgia, 433 U.S. 584 (1977)
2 Gregg v. Georgia, 428 U.S. 153(1976)
3 State of Louisiana v. Patrick Kennedy, No. 05-KA-1981, 2007 La., LEXIS 1244, at *58
4LA. REV. STAT. ANN. § 14:42.A(4) (2007)
5 S.C. CODE. ANN. §16-3-655(c)(1) (2006)
6 OKLA. STAT. tit. 10 § 7115 (I) (2006)
7 TEX. PENAL. CODE. ANN. § 22.021(2007)
8 MONT. CODE. ANN. § 45-5-503 (2007)
9 GA. CODE. ANN. § 16-6-1 (2007)
10 FLA. STAT. ANN. § 794.011(8)(c) (2007)
11 State of Louisiana v. Patrick Kennedy, No. 05-KA-1981, 2007 La., LEXIS 1244, at *36,35
12 State v. Bethley, 520 U.S 1259 (1997) Where a defendant was convicted and sentenced to execution for raping his daughter and two children, under the age of ten, and knowingly exposing them to HIV. The defendant’s sentence was upheld by the Louisiana Supreme Court.
