This week the Supreme Court granted a rare legal victory to one of America’s most down-trodden, least-understood special-interest groups: people who rape small children. In a 5-4 decision, the Court decided that it was unconstitutional to execute persons convicted of forcibly raping children under the age of 12. This came as welcome news to Patrick Kennedy, 43, who was sentenced to death for the rape of his eight-year-old stepdaughter in 2003. According to doctors, Patrick Kennedy raped his stepdaughter so brutally that both her reproductive organs and her digestive tract suffered significant damage, requiring immediate surgery. Luckily, doctors were able to treat her successfully, and in all likelihood she’ll go on to become as happy, healthy, and well-adjusted an adult as anyone who’d been brutally raped by her own stepfather at the age of eight could reasonably be expected to.
In writing the majority opinion, Justice Anthony Kennedy, after generously noting that child rapes may be “devastating,” claimed that “in terms of moral depravity, and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability.” Which is true, in the sense that child rape is arguably worse than murder: Murder is an act which at least brings an end to the victim’s suffering, whereas child rape creates mental anguish and despair that can last a lifetime. As Justice Kennedy has somehow failed to grasp, there are some fates worse than death: certain types of cancer, for example; some forms of mental illness; and, yes, the forcible rape of an eight-year-old girl by her own stepfather, a rape of sufficient severity to result in massive damage to her internal organs.
The Louisiana law struck down by this ruling did not require the death penalty for child rapists, it merely allowed for it. But even that possibility was unacceptable to Justice Kennedy, who argued that allowing the death penalty would leave open the possibility of execution in less severe child-rape cases. Which suggests that, at least in Justice Kennedy’s mind, some forcible rapes of children are more heinous than others — for example, if the child was clearly asking for it based on his or her provocative dress or mannerisms. Even after allowing that juries and judges would surely note, during sentencing, the relative level of brutality of each particular child-rape case, Kennedy still worried that some of the less brutal child-rape cases — for example, ones that did not result in injuries that required emergency surgery — might result in a death penalty for the child rapist.
Kennedy also claimed that allowing the death penalty for child rapists could place an undue burden on victims if their testimony could result in the execution of the child rapist, especially if the rapist is a family member. Which would seem to be an argument against allowing children to testify in any kind of abuse case, or any capital crime, or, ultimately, in any sort of criminal proceeding in which a relative might be implicated.
A number of victim’s-rights groups concurred with this Court decision, arguing that since so many child rapes are committed by a relative of the victim it would be “unthinkable” to ask the child to implicate a family member who could then face execution. Somebody might want to inform these groups that once you’ve been forcibly raped by your own father at the age of, say, eight, the concept of “unthinkable” becomes pretty fluid.
As with most efforts to abolish the death penalty, this opinion has nothing to do with the depravity of the offense. Rather, it’s based on the notion that capital punishment for any reason violates the Constitution because it’s cruel and unusual. But here’s the thing: “Cruel” is subjective; its definition varies. “Unusual,” on the other hand, is something we can quantify based on how frequently something occurs. And if something began to occur on a regular basis — say, the execution of men who forcibly rape eight-year-old children so brutally that they require emergency reconstructive surgery — it would become harder over time to characterize it as “unusual.” Which is why it is so important that we make the execution of child rapists, serial killers, terrorists, and others so clearly beyond human redemption as commonplace, even routine, an event as possible. Because once we get “unusual” out of the way, we can start working on “cruel” — and before you know it, the execution of the very worst criminals can be restored to its rightful place as the crown jewel of our criminal justice system. Now I’m going to use an expression I have never used before, and I couldn’t be more serious: My fellow Americans, let’s restore the death penalty for child rapists. Let’s do it . . . for the children.
– Ned Rice is a writer in Los Angeles.