Children & the Law Blog

The nuances of the Supreme Court decision in Kennedy v Louisiana are perhaps more telling than the strict constitutionality of the ruling.  The decision written by Justice Kennedy incorporates input from an amicus brief from the National Association of Social Workers (NASW), the Louisiana chapter of NASW, the National Alliance to End Sexual Violence  and other state organizations working to end sexual assault. 

Acknowledging that the rape of a child is a most heinous crime, Justice Kennedy notes early that punishment is primarily about retribution and what this application of the death penalty says about our culture. (Please note that all quotes are pulled from the court decision.)

“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint… We cannot dismiss the years of long anguish that must be endured by the victim of child rape… It does not follow, though, that capital punishment is a proportionate penalty for the crime.“ 

The decision also addresses claims by the law’s proponents that the death penalty somehow helps the victim’s healing process whereas NASW insists the process could increase the psychological distress experienced by victims. 

“It is not at all evident that the child rape victim’s hurt is lessened when the law permits the death of the perpetrator. Capital cases require a long-term commitment by those who testify for the prosecution… Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. “

The NASW statement also references the well-established fact that the majority of childhood sexual assault is perpetrated by relatives or close family friends, making it far less likely that a child or her guardian will report the assault.  Hence, the abuse continues if not with the original victim, with other children.  Longterm abuse is documented as traumatizing to children and the adults they become; increasing the likelihood of teen pregnancy, drug abuse, mental health problems and other malidies.  The court agreed with the social workers, stating…

“With respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too, diminishes the penalty’s objectives. Underreporting is a common problem with respect to child sexual abuse….one of the most commonly cited reasons for nondisclosure is fear of negative consequences for the perpetrator, a concern that has special force where the abuser is a family member.”

Last but certainly not the least concern of advocates for children, is the fear that laws such as the one in Louisiana — and Texas — will remove a major deterrant against killing young victims of sexual assault.  To this Justice Kennedy states,

“Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime.”

 In closing, Kennedy adds…

“Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape. Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense.”

Two additional considerations are mentioned by the social workers but not the justices.  How the victim personally receives the message sent by capital punishment and the lost opportunity for resolution can both significantly hinder recovery.

The negative psychological impact of a law that tells a survivor that her experience is equal to that of a murder victim can in itself be disabling.  The underlying message that the child survivor receives is that she – as if murdered – is irreperable and might as well be dead. 

NASW also references the healing potential of future discussions between assailant and survivor.  A potential that might be lost if the assailant is put to death. 

I know the pain of realizing that the man who molested a naive teenager promising to never do it again, in fact did.  I also know the power, years later, in telling him of the anger and anguish; and hearing the reply “I’m so sorry.”   I thank the court for preserving this healing opportunity for other survivors and for seeing beyond conservative rhetoric toward a decision that is truly in the best interest of children.  

The American Civil Liberties Union (ACLU) ACLU of Louisiana and NAACP Legal Defense and Educational Fund also submitted an amicus brief regarding the disproportionate number of African American men who receive a death penalty sentence under existing laws. Worth reading and a mention here, the court however made no reference to these concerns in its decision. What impact the Kennedy v Louisiana decision might have on the Texas law — which has some restrictions not in the Louisiana version — is yet to be seen.