Prohibiting the death penalty for the rape of a child while overlooking wrongful execution: Kennedy v. Louisiana.

• Author: Minor, Kelly J.

1. INTRODUCTION

   When the first colonists arrived on North American soil, they permitted the death penalty for the rape of an adult or a child. (1) However, as the colonies developed, each promulgated its own rules to determine an appropriate punishment for rape. (2) In 1972, Furman v. Georgia (3) nearly halted the use of the death penalty as a punishment for the rape of an adult or a child. (4) The Court held that death constituted a cruel and unusual punishment when applied to the crime of rape, since the crime did not necessarily result in a death. (5) Though the majority of states do not permit the death penalty for the rape of an adult or a child, five other states--Georgia, Montana, Oklahoma, South Carolina, and Texas--followed Louisiana's lead and enacted statutes allowing the death penalty for the rape of a child. (6)

   In deciding whether the death penalty is an appropriate punishment for the rape of a child, courts have placed great emphasis on the Eighth Amendment's guarantee that punishments not be cruel and unusual. (7) The Framers intended to prevent "tortures" and "barbarous" methods of punishment. (8) Today, courts look at legislative enactments as well as the appropriateness of the punishment in relation to the crime committed to determine whether the death penalty should be permitted as a punishment for a particular crime. (9) Ideally, this determination requires that the death penalty succeed in meeting the two goals of punishment: deterrence and retribution. (10)

   In June 2008, in Kennedy v. Louisiana, (11) the United States Supreme Court overturned the Louisiana Supreme Court's decision to sentence Patrick Kennedy to death following his conviction for the rape of a child. (12) Kennedy held that a death sentence as applied to the rape of a child, a crime not resulting nor intending to result in death, violates the Eighth Amendment. (13) The significance of this holding remains to be seen; however, the Court's decision rests firmly on the belief that the Eighth Amendment prohibits the death penalty as applied to the rape of a child, because it constitutes cruel and unusual punishment. (14) In so holding, the Court recognized the possibility of wrongful execution, yet placed little emphasis on its significance or the great probability of its occurrence, especially in cases when child victims testify. (15)

   This casenote will address the impact of relying on child testimony in applying the death penalty to perpetrators who rape a child. It will begin with a review of the facts and procedure of Kennedy v. Louisiana, (16) examine the history of the death penalty as applied to rape, (17) and analyze the effect of relying on child testimony in applying the death penalty to the rape of a child. (18) It will also look at the importance of societal opinions and the national consensus regarding the death penalty when applied to crimes not resulting in death, specifically rape of a child. (19) This note will then recognize the possibility of the arbitrary and capricious application of the death penalty and present necessary steps to avoid it. (20) In addition, it will analyze the goals of punishment and determine whether these goals are met when the death penalty is applied to the rape of a child. (21) Finally, this note will focus on the possibility of wrongful execution and the effects of relying on child testimony. (22) The Supreme Court in Kennedy was correct in holding that the death penalty should not be permitted in cases of child rape not resulting in death; (23) however, the Court should have prohibited the death penalty as applied to rape of a child not because it would constitute a cruel and unusual punishment, but because of the fallibility of child testimony and its effects on convictions. (24)

2. FACTS AND PROCEDURE

   On the morning of March 2, 1998, an innocent child became a victim of an indescribably brutal rape. (25) Justice Kennedy appropriately acknowledged the impossibility of giving a full account of the crime which occurred, stating that "[p]etitioner's crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on [petitioner's] victim or to convey the revulsion society, and the jury that represents it, sought to express" in punishing the offender. (26) At 9:18 a.m., the victim's stepfather, Patrick Kennedy (Kennedy) placed a phone call to 911 to report the rape of his stepdaughter (L.H.). (27) Kennedy told the 911 operator that L.H. had been raped while he was helping his son get ready for school. (28) Claiming he heard screams coming from outdoors, Kennedy reported that he ran outside to find L.H. lying on the ground between their garage and an empty lot. (29) Kennedy went on to explain that L.H. told him two boys from the neighborhood took hold of her, threw her down, pulled her through the grass, and one raped her. (30) In response to the 911 operator's question regarding the race of the two boys, Kennedy proceeded to ask his step-daughter if the boys were "black or white." (31) Kennedy then told the 911 operator they were black, explained that he had seen one of the boys in the neighborhood on previous occasions, and gave a description of the boy. (32)

   Deputy Michael Burgess arrived at Kennedy's home between 9:20 and 9:30 a.m. (33) Upon reaching the crime scene, Deputy Burgess immediately questioned the validity of Kennedy's report, because the crime scene was "inconsistent with a rape occurring there...." (34) As he made his way into the garage, Deputy Burgess discovered spots of blood on the concrete floor. (35) He then entered the home and ordered Kennedy, who was still speaking with the 911 operator, to get off the phone so that Deputy Burgess could pursue the suspects. (36) Kennedy led the Deputy to L.H.'s bedroom on the second floor; Deputy Burgess again saw more blood drops leading up the stairs. (37) When Deputy Burgess reached L.H.'s room, he found the victim lying on her side, wearing a t-shirt and wrapped in a bloody blanket. (38) Kennedy, who was wiping his hands with a bloody towel, told the deputy he had put L.H. in the bathtub in order to clean her. (39) Though L.H. "was bleeding profusely from the vaginal area," (40) the deputy did not see any blood on Kennedy's clothing. (41) L.H. was taken to the local Children's Hospital where Dr. Benton examined her and later testified that her injuries were the "most severe he had seen from a sexual assault in his four years of practice." (42) The injuries L.H. sustained required immediate surgery. (43)

   L.H. was questioned twice on the day of the rape, once at her home when the police arrived and once at the hospital. (44) During both questionings, Kennedy attempted to interrupt and answer the questions himself. (45) When given the opportunity to speak, L.H. reiterated the story Kennedy told the 911 operator. (46) During the weeks following the rape, L.H.'s account of the incident coincided with that of Kennedy's. (47) However, Dr. Benton testified that L.H. had reportedly told one family member that it was Kennedy, and not the boy from the neighborhood, who had raped her. (48) A psychologist conducted a three-hour, two-day, videotaped interview with L.H. several days after the rape. (49) This tape was later introduced as evidence by the defense at trial. (50) L.H. maintained the story that both she and Kennedy had previously told. (51)

   In spite of L.H.'s persistence in stating that her stq-father was not responsible, Kennedy was arrested eight days after the rape. (52) As the police conducted further investigation, it became clear that the story which L.H. and Kennedy had told was untrue. (53) Upon an immediate investigation of the alleged crime scene, the detectives found a dog sleeping nearby, long grass largely "undisturbed," and a "small patch of coagulated blood." (54) This investigation led officers to believe that not only did the rape not take place in the side yard as L.H. and Kennedy contended, but that the coagulated blood indicated that the rape occurred much earlier than indicated. (55) In addition to the evidence discovered with respect to the alleged crime scene, police discovered physical evidence that the actual crime scene (the bedroom) had been cleaned. (56) Forensic scientists revealed further evidence to indicate that the bedroom was the true location of the crime. (57)

   Kennedy's description of the blue bike, which he alleged the perpetrator rode away on, differed from the bike which Kennedy positively identified as belonging to the perpetrator. (58) This bike not only differed in its physical features, such as the handlebars, but was also found to be "inoperable." (59)

   Police discovered that Kennedy made two phone calls to his employer on the morning the rape occurred. (60) Both calls were made before the report of rape to 911. (61) During the first call, which occurred before 6:15 a.m., Kennedy left a message stating he would not be able to work that day. (62) The second call occurred sometime between 6:30 and 7:30 a.m. (63) Kennedy reached his employer on this second attempt and proceeded to ask how to remove blood from white carpet, noting that his step-daughter "had just become a young lady." (64)

   It was not until a week after the rape occurred that the police discovered that Kennedy had made yet another phone call that morning. (65) He placed a call at 7:37 a.m. to B&B Carpet Cleaning and requested immediate carpet cleaning to remove blood stains. (66) It was not until an hour and a half after this phone call that Kennedy placed the call to 911 to report the rape. (67)

   Nearly one month after the rape occurred, L.H. was removed from her mother's custody because her mother allowed Kennedy, who was incarcerated, to keep in touch with L.H. via telephone. (68) Approximately one month later, L.H. returned to her mother's custody and soon thereafter revealed to her mother that Kennedy had raped her. (69) L.H. recorded a statement...