Fatally Flawed Friday

Earlier this week, NPR's Morning Edition ran a piece about a case, Kennedy v. Louisiana, currently before the Supreme Court.  I strongly urge you to click here and either read or listen to Nina Totenberg's outstanding coverage.

I'm no lawyer.  I don't even play one on TV or in this blog.  But I'm going to take a stab at explaining why this case is a big old ticking time bomb for us all.

Facts:  In 1998, Patrick Kennedy called 911. He requested medical assistance for his 8-year-old stepdaughter who had been raped, Kennedy told dispatchers, by two boys. The girl concurred. Police, however, suspected Kennedy. Several months later, the girl was removed from the home by state social workers who, according to reports, made her return to her mother's care contingent upon the mother's implication of Kennedy as the rapist. She did so, and the girl then told authorities her stepfather was the perpetrator. Kennedy was charged with capital rape. He pleaded innocent, was convicted in a jury trial, and sentenced to death.  The prosecutors won their conviction with no forensic evidence and on the basis of contradictory victim's statements. 

In 1977, the Supreme Court ruled - by a 7 to 2 majority - that the death penalty for the rape of an adult woman was unconstitutional.  The Louisiana law is specific to the rape of a child.

It is specific in another way, as well.  A very dangerous way.

Individuals charged with capital rape of a child in Louisiana may plead guilty and avoid the death sentence; their plea buys their life.  The only people, therefore, who can possibly be executed for raping a child are those who maintained their innocence and were willing to do so before a jury of their peers.

Before I go any further, I want to be crystal clear. People who rape children are evil, evil scum and should be locked away for the rest of their lives, never to see the sun again. Furthermore, it is my personal hope that, while incarcerated, they experience punishment befitting their crime. To paraphrase a line from Pulp Fiction, fellow inmates should go medieval on their asses.

From what I've read, Patrick Kennedy sounds pretty guilty.  But is "sounds pretty guilty" a sufficient standard of proof for execution?

Back to my argument.

The Louisiana law, then, can go wrong in two very bad ways for someone who is falsely accused. An innocent man could chose to plead guilty to avoid a trial that he or his attorney is certain he would lose. He could go to trial and be found guilty.  

Think this never happens?  Ask one of the 215 people who, in the last 16 years, have been exonerated by DNA evidence. Just this week, Thomas McGowan is set to be released after serving 23 years for a rape he did not commit. But surely he did something bad, you might ask. After all, the police don't just arrest normal people, right? Wrong. McGowan was misidentified in a photographic lineup. His photo was in the criminal justice system as the result of a minor traffic violation. 

A less obvious, but no less harmful, result of capital child rape laws is the likelihood that reports of abuse will decrease and fewer rapists will be brought to justice. The relationship between abuser and abused is complicated. Children are often afraid to report abuse out of fear, not only for their own safety but also the safety of those they love or think they love. Feeling "responsible" for sending someone to jail is scary. Imagine feeling "responsible" for sending someone to die.  I realize that theories of jurisprudence do not extend this far, but putting that burden on a child could conceivably border on "cruel and unusual punishment" of the accuser.

I hope that, even if you support the death penalty (believe it or not, I do respect your right to do so and, in fact, may well understand your reasons), you see the flaw in this legislation.

Given the current make up of the Court, its majority may not. Such a decision would harm children and reduce the state's burden of proof when a person's life is at stake. Neither result should be taken lightly.