The possibility of executing innocent adults:
There was a flurry of charges against hundreds of adults during the 1980s and 1990s for allegedly committing multi-victim, multi-offender (MVMO) sexual crimes against children in day care centers, by sexual molestation rings, etc. Often children alleged that Satanic Ritual Abuse took place. Many innocent adults were convicted of on the basis of false child testimony and misleading laboratory tests. Time has shown that all, or almost all, of the alleged perpetrators were innocent. Further studies showed that in all probability the crimes did not actually happen. Fortunately, none of the convicted were executed.
False memories of the crimes had been implanted in the minds of the children as a result of improper child interview techniques which were in wide use at the time. Children were asked repeated direct questions until they disclosed memories of events that never happened. Convictions were sometimes assisted by unreliable laboratory tests that detected benign and naturally occurring bacteria in the throats of children, and reported the bacteria as being from a STD. More recent accusations of this type of crime have not appeared in North America since child psychologists and police investigators adopted more reliable interview methods. However, one new case did surface on Lewis Island, Scotland, in late 2003.
Jeffrey Rosenzweig, a criminal defense lawyer in Little Rock, AR, said the Oklahoma bill raises troubling questions about the fallibility of the criminal justice system and the ability of malevolent adults to pressure and coerce children into making false claims. He said:
There are several scenarios whereby the 1980/1990 false accusations could be repeated in the future:
If the parent(s) claimed that their child had been the victim of forced sodomy or vaginal rape, and no such crime had occurred, the absence of physical evidence should prove that an assault never happened. But if oral rape or penetration with a device is alleged, it is possible that no physical evidence would be detectable even if the assault happened. The combination of:
could result in the conviction conviction of an innocent adult and a subsequent execution, based on the testimony of the child.
Establishing a minimum victim age limit:
Legislators often support the death penalty for those convicted of child rape because of the devastating effect that the crime is believed to have on the victim for the entire rest of their life. A case might be made that a law should specify both a minimum and a maximum victim age limit within which the death penalty could be considered. A child under the age of about 36 months generally has no long-term memory; most cannot recall even abusive earlier events into adulthood.
Appeal of the Louisiana law to the U.S. Supreme Court:
In 1976, the U.S. Supreme Court reinstated the death penalty across the U.S. They had earlier placed a moratorium on executions, believing that they violated the prohibition on "cruel and unusual punishment" as specified in the Eighth Amendment of the U.S. Constitution.
During 1977, the U.S. Supreme Court ruled in a case involving the rape of a young woman in Georgia. They determined that executing a criminal for the a crime less serious than murder would be cruel and unusual punishment. Justice Byron R. White wrote for the court: "We have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life." 4 The victim was 16 years of age and considered an adult by the court.
In 1995, the Louisiana legislature passed a law that allowed the execution of persons convicted of raping children under the age of 12. They regarded the 1977 court decision as applying only to the rape of adults.
On 2008-APR-16, the U.S. Supreme Court heard oral arguments for the appeal of Patrick Kennedy. He had been convicted in Louisiana of raping his 8-year-old stepdaughter in a particularly violent manner. He was sentenced to be executed. If the court upholds Kennedy's conviction, the path would be open for other states to pass legislation to require or permit the death penalty for crimes other than murder.
On 2008-APR-30, Christopher Powers, 46, was convicted of raping a boy under the age of 12 in Florida. He currently faces a mandatory life sentence. Although Florida has a statute that allows the court to sentence such a perpetrator to death, a state court declared it unconstitutional. State Attorney spokesman Joe Grammer said that the sentence is "... not our decision. I've been a prosecutor since 1984, and it's been that way all of that time." Powers also faces a sexual battery charge in Panama City, FL. If the Supreme Court issued a ruling upholding Kennedy's conviction in time, Powers could be sentenced to be executed.
Kennedy was represented by attorney Jeffrey Fisher and the Capital Appeals Project in New Orleans. Fisher told the Court that groups working with child rape victims oppose capital punishment for perpetrators. They are concerned that victims will be reluctant to disclose the abuse if it could result in the perpetrator's death. This is particularly true in cases where the crime is committed by a family member. Fisher said to the Supreme Court that nobody has been executed for a rape of any kind in 43 years. He also noted that that more states have rejected the death penalty for child rapists than have added it, and that New Jersey repealed its death penalty law entirely. Their brief states that: "Viewed against the backdrop of 44 years without a single execution for rape of any kind, the enactments of only four states over 13 years . . . hardly signify a shift in societal attitudes" They noted that expanding grounds for the death penalty would separate the United States from other Western nations and align it with "only a sliver" of the world, including the dictatorships of China, Egypt, and Saudi Arabia. The Washington Post reported:
The NAACP Legal Defense Fund and the American Civil Liberties Union recalled the "scourge of racial bias" that accompanied the execution of rapists during the mid-20th century. Almost 90 percent of those executed were African Americans.
Beyond legal issues, the law is bad policy, an unlikely coalition of social workers and groups that work to prevent sexual assaults told the court.
Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assault, admitted that her opposition to the law "... might seem counterintuitive. But our great fear is that it will increase underreporting" of the crime. She pointed out that the vast majority of child rapes were committed by a member of the family or by a friend known to the family. Family members would often be disinclined to report a rape if it endangered the life of the perpetrator. She said: "It's a complex area that I think needs to be looked at in a more in-depth manner than policymakers are often willing to do." 4
During the oral arguments, Justice Antonin Scalia said: "Our jurisprudence just requires the narrowing of the death
penalty to particularly heinous crimes,
Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer discussed how states would implement an expansion of the death penalty to include child rape. Fisher said that the Louisiana's law: "... gives juries unfettered discretion to choose who, among the vast class of offenders convicted of child rape, may be subject to the death penalty." However, other states require that the defendant have a prior history of crimes against children in order to be eligible for the death penalty. He continued: "The state of Texas and other states that have these severe, recidivist requirements might say that is good enough, but they'd still be left with the argument that a person who commits child rape and it does not result in death is a worse offender than somebody who deliberately kills somebody."
An attorney representing the state of Louisiana, Juliet Clark, noted that defendants sometimes face the death sentence when they kill someone accidentally during the commission of another felony. She said: "I think that's very different from a case like this, where the offender absolutely committed the offense ... where the offender absolutely does not act by accident or without premeditation or deliberation and directly causes that terrible harm himself."
Jim Appleman, a state attorney for 24 years, saw defendants who he said he believes deserved death for their crimes against children. He said: "You have to look at whether the defendant has been convicted before, whether there are multiple victims, the extent of the injuries to the child." However, he does not believe that the possibility of execution acts as a deterrent He said: "An individual with a gun or a knife isn't going to stop and think about the possible penalties as they're standing over someone, or standing over a child." 3
On 2008-JUN-25, the U.S. Supreme court handed down a ruling in the Patrick Kennedy case. As is usual with rulings containing a moral component, the decision was 5 to 4. The ruling stated that chld rapists cannot be executed in the U.S. Capital punishment for crimes against individuals can only be applied in the case of murder.
According to CNN:
See also an essay on: "Quotes. Current grounds. Including child molestation"
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