Vol. 3, No. 2 | October 2008

The Death Penalty for Rape of a Child is Cruel and Unusual Punishment

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu

[Note:  Unless indicated otherwise, materials in quotation marks are quotes from the opinion of the court deciding the case under discussion.  Also, unless indicated otherwise, a case discussed below was decided by the United States Supreme Court.  Descriptions below of the facts of a case often quote verbatim (or at least draw heavily) from the opinion’s description of the facts or from the summary of the case provided by one of the legal reporters, such as Lexis-Nexis or www.findlaw.com]

Kennedy v. Louisiana (U.S. Supreme Court, 6-25-08)

Facts:  Kennedy was convicted of raping his 8-year-old step-daughter and received a death sentence.  Louisiana law makes rape of a child under the age of 13 (it was under the age of 12 at the time Kennedy committed his crime) a capital offense. 

Issue:  Does the 8th Amendment prohibition against cruel and unusual punishment prohibit the death penalty for rape of a child where the victim is not killed?

Held:  Yes, 5-4.  Six states, including Louisiana, extend capital punishment to the rape of a child.  Three of those states enacted their legislation in 2006 or 2007.  In Coker v. Georgia (1977), the Supreme Court held that it is cruel and unusual punishment to execute a person for raping an adult victim, where the victim did not die, because the punishment was disproportionate to the seriousness of the offense.  The small number of states that provide capital punishment for rape of a child and the relative infrequency of executions generally since 1964 suggest that there is a national consensus against capital punishment for this offense.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.