Supreme Court Rules Child Rape Is Less Deserving Of Capital Punishment Than Murder -- Opinion Central -- GOPUSA

Supreme Court Rules Child Rape Is Less Deserving Of Capital Punishment Than Murder
By Stacie D. Rumenap
July 9, 2008

In a 5-4 decision, the U.S. Supreme Court recently struck down a Louisiana law that allowed capital punishment for an adult convicted of raping a child under the age of 12 (Kennedy v Louisiana). The Court mistakenly held that Louisiana law violates the "Cruel and Unusual Punishment Clause" of the Eighth Amendment, and also voiced a reluctance to impose the death penalty onto non-lethal convictions, or for convictions for which capital punishment has not yet been sentenced-irrespective of its moral or societal opprobrium.

In this case, the victim was an eight-year-old girl who was raped by her step-father at their home and whose injuries were severe enough to require emergency surgery.

Justice Kennedy's majority opinion stated: "The Court would not now begin the same process for crimes for which no one has been executed in more than 40 years." That, he said, would "require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of the death penalty. Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure."

In the opinion, Justice Kennedy rests upon, in part, two key premises.

First, that the Eighth Amendment's Cruel and Unusual Punishment Clause prohibits a state to punish by death a crime which does not result in the death or intent of death of the victim; and second, the purported development of a "national consensus," or judicial trend, of reluctance to impose the death penalty for such crimes, including child rape. It is a sad day when the High Court uses moral ambiguities to justify judicial phenomena opposed to policies crafted by elected representatives.

Few crimes exist that are more morally reprehensible than the rape of a child. Yet the Court ruled under the pretense that child rape is less deserving of capital punishment than murder, irrespective of how young the child, whether it is a recidivist offense, how much physical or psychological trauma is inflicted upon the child, etc.

Let us for argument's sake put aside the immense personal and social trauma that follows pursuant of child rape-trauma not only to the victim and the victim's family, but also to the victim's extended community-and instead consider that the Court's decision is contingent on a morally ambiguous premise. While it is certainly within the Court's discretion to discern a moral thread underlying judicial precedent, it is expected that the Court not parse a moral argument which directly contradicts the intent of state legislation that addresses penalties for convicted sex offenders. It should not be left to an activist Judiciary to delineate a moral imperative; rather, it must be left to state legislatures to pass laws that reflect the contemporary moral consensus.

In addition, the Court majority's argument that a "national consensus," moves according to "evolving standards of decency" away from the imposition of capital punishment is, in fact, unfounded, as in the past two decades states have enacted stricter penalties for convicted child sex offenders.

Prior to 1994, for instance, few states required sex offenders to register their addresses with local law enforcement. But when public outrage flowed from repeat news stories of child abductions and murders, Congress reacted by passing the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Act. Named for 11-year-old Jacob Wetterling of St. Joseph, Minnesota, whom authorities believe was abducted by a sex offender in 1989, the law requires states to implement a sex offender registration program.

Lawmakers came to realize, however, that registration alone was not enough.

The tragic murder of seven-year-old Megan Kanka by a twice-convicted violent sex offender living on her street in Trenton, New Jersey prompted swift Congressional action. In 1996, Congress amended the Wetterling Act, requiring states to disseminate publicly information about sex offenders on community websites.

In response to the 1996 abduction and homicide of nine-year old Amber Hagerman of Arlington, Texas, Congress introduced the first Amber Alert. Now, when witnesses provide information helpful to the recovery of a child, law enforcement authorities can provide the public with that information and solicit their assistance in locating the suspected kidnapper. Today, all 50 states have sex offender registries, notification programs, and Amber Alert broadcasts.

Finally, the latest trend in child safety flourished in the aftermath of the death of Jessica Lunsford, the nine-year-old girl who was abducted, raped, and murdered in Homosassa, Florida in 2005 by a twice-convicted sex offender. The law requires mandatory minimum sentences and electronic monitoring for convicted sex offenders. States have overwhelmingly adopted such measures.

It is for good reason lawmakers have enacted tougher penalties for convicted sex offenders. The sexual victimization of children is overwhelming in magnitude yet largely unrecognized and underreported. There are over 600,000 registered sex offenders in the United States. It is estimated that one in five girls and one in ten boys are sexually exploited before they reach adulthood, according to the National Center for Missing and Exploited Children. Worse, less than 35% of those child sexual assaults are reported to authorities.

To this point, the Supreme Court's decision that the Eighth Amendment categorically prohibits the death sentence for child rapists is simply unsound.

The Louisiana State Legislature deemed the rape of a child so severe as to qualify for the death sentence. As the statute does not violate the Cruel and Unusual Punishment clause of the Eighth Amendment on objective grounds, the moral discretion of elected legislators should not be overturned by five appointed individuals.

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Stacie D. Rumenap is the executive director of Stop Child Predators, a non-profit organization in Washington, DC that prevents the sexual exploitation of children and protects the rights of crime victims. For more information, visit www.stopchildpredators.org.

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Note -- The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of GOPUSA.