equal time to the left…very far left

In Kennedy v. Louisiana, the U.S. Supreme Court held that the Eighth Amendment bars imposition of the death penalty where the crime does not result in the victim’s death.

Only six states, including South Carolina, have statutes providing for the death penalty in child rape cases. The enactment of South Carolina’s statute was a perfect example of bad politics controlling legislation. In the wake of some horrific and high-profile child rape cases followed by the media, some legislator decides that it will be great PR to campaign for the death penalty for these monsters. Once the legislation has been introduced, no politician wants to vote against it because, hey, it is pretty good PR, and you are either for it or you are in favor of the child rapists, which certainly does not win you any votes.

Although the politicians and some victim advocates speak out about how they want the death penalty for child rapists, and it makes a good sound byte during election time, the Supreme Court of the United States points out that there is a national consensus against the death penalty for child rape.

Since the court’s 1972 decision in Furman v. Georgia, nine states have permitted capital punishment for adult or child rape, and yet no person has been executed for any non-homicide offense since 1963. Louisiana is the only state that has sentenced a person to death for child rape, resulting in the opinion in Kennedy: Despite rape’s permanent and devastating impact on a child, “in terms of moral depravity and of the injury to the person and to the public, (non-homicide crimes including child rape) cannot compare to murder in their severity and irrevocability.”

The court looks at whether the death penalty for child rape would serve the purposes of retribution and deterrence. Looking at retribution, the death penalty will not lessen a rape victim’s hurt, given that capital cases require a long-term commitment to testify for the prosecution over a period of many years. By enlisting a child victim to assist in seeking the death penalty over the course of years “forces a moral choice on the child, who is not of mature age to make that choice.”

The goal of deterrence is not furthered because “evidence suggests that the death penalty may not result in more effective enforcement but may add to the risk of non-reporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member.” Also, by making the punishment for murder the same as the punishment for rape, it gives the rapist an incentive to kill the victim.

The court takes note of the “relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, induced and even imagined child testimony, which creates a special risk of wrongful execution in some cases.”

There are many problems with cases involving child testimony. Child molestation cases often arise in the context of divorces and custody disputes, and there are often problems with the testimony. One problem that arises quite often is the problem of suggestive interviewing techniques with children and the problem of repeated interviews.

I have seen cases where the interviewer asks the child leading questions (suggestive of the answer), the child denies the allegations, and the interviewer continues asking the same leading question in different ways or keeps coming back to the question, until the child gives the answer the interviewer is looking for.

This can be compounded by the effect of multiple suggestive interviews, often beginning with a family member who may be suspicious or have an ax to grind, followed possibly by other family members, followed by an officer and then one or more interviews by a child advocate.

The effect of suggestive interviews on a very young child, particularly when they are repeated, is that the child may begin to believe the allegations, even if they were not true to begin with. The state then has a very credible and believable witness with which to prosecute its case. In South Carolina and other states, laws have been passed that would allow the presentation of videotaped testimony by the child in court – without the opportunity to cross-examine and in violation of the right to confront witnesses.

The dangers of a prosecution for child rape, particularly when there is no corroborating evidence, should be clear. Juries do not want to take any chance on releasing a person who might then hurt more children. Due to the prejudicial nature of the accusations, defendants are often presumed guilty as soon as they are accused, and it is an uphill battle to demonstrate the flaws in the case and to get beyond the preconceived notions of the jury.

The court made the right decision in Kennedy, but it is still disturbing that four of nine justices voted to allow states to kill defendants under these circumstances.

Bobby G. Frederick of Myrtle Beach is a criminal defense attorney

(www.southcarolinacriminaldefenseblog.com).