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Rehearing requested in child-rape case

WASHINGTON (BP)–Louisiana has asked the U.S. Supreme Court to reconsider its ruling against that state’s law permitting the death penalty for child rape after it was revealed the justices overlooked a similar federal measure in their ruling.

The request for a rehearing, filed with the high court July 21, followed a controversial June 25 opinion in which the high court ruled a child rapist may not be executed if he did not kill his victim. The ruling invalidated the laws of six states.

Associate Justice Anthony Kennedy said in the decision, which was determined by a 5-4 vote, that the court based its opinion partly on what he described as a “national consensus against capital punishment for the crime of child rape.” While 36 states and the federal government have the death penalty, only six states -– and not the national government -– authorize it for child rape, Kennedy wrote.

The federal government, however, authorized capital punishment in military courts for child rape in a Department of Defense authorization law enacted in 2006. President Bush implemented the provision for the death penalty in a 2007 executive order.

“Such a clear expression of democratic will, at the very least, calls into question the conclusion that there is a ‘national consensus against'” the death penalty for child rape, the state of Louisiana said in its petition for a rehearing.

The state acknowledged in its request it was unaware of the federal law and made a “significant error” in not informing the justices of it. It said, however, the mistake “should neither inhibit the Court’s work nor diminish its fealty to the Constitution.”

The 2006 law is “directly relevant” to the questions in the case, and the high court’s ruling is “factually erroneous” minus a referral to it, the petition said.

The opinion “supplants not only the will of the States, but that of the Federal Government,” Louisiana said in its request. “While Congress has not, as yet, applied the death penalty to child rape in the civilian context, the recent trend (not to mention the general parity between military and civilian law today) indicates that it very well may do so, if given the opportunity.”

Louisiana asked the justices to schedule new arguments in the case, which was Kennedy v. Louisiana.

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, commended Louisiana for seeking a rehearing in what he described as an “egregious decision.”

“A majority of the Supreme Court showed that it has completely lost touch with the vast majority of the U.S. population, who certainly want the death penalty to be available as an option for perpetrators of child rape,” Land told Baptist Press.

The case involved the aggravated rape of an 8-year-old girl by her stepfather, Patrick Kennedy. The Louisiana Supreme Court had upheld a jury’s sentence of the death penalty for the defendant.

In his opinion, Anthony Kennedy said the court determined “the death penalty is not a proportional punishment for the rape of a child.”

Non-homicide crimes, including the rape of a child, “may be devastating in their harm, as here,” but are not comparable to murder in “severity and irrevocability,” Kennedy wrote, using language from Coker v. Georgia, which dealt with the issue of proportionality of punishment and prohibited the death penalty for the rape of an adult woman.

Associate Justice Samuel Alito, however, said in his dissent the court’s ruling means the death penalty for child rape always is prohibited “no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.”

Alito disagreed with the court’s assertion that murder “is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public.” Instead, Alito wrote, society views child rape as more heinous than murder.

“Indeed, I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists -– predators who seek out and inflict serious physical and emotional injury on defenseless young children -– are the epitome of moral depravity,” Alito wrote.

Land said in a June 26 weblog post at Beliefnet.com, “People who have had to comfort, counsel or treat victims of child rape would agree that Justice Alito and his conservative minority have much the better of this argument.”

In his post, Land cited the book, “Soul Murder: The Effects of Childhood Abuse and Deprivation” by Leonard Shengold, a professor of psychiatry at New York University School of Medicine. Such brutalization of children results in what Shengold described as “their psychic and spiritual annihilation,” Land said.

Joining Kennedy in the majority’s June 25 opinion were Associate Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Chief Justice John Roberts and Associate Justices Antonin Scalia and Clarence Thomas agreed with Alito’s dissent.

The case was Kennedy v. Louisiana.
Tom Strode is Baptist Press’ Washington bureau chief.