Sanctions on Punishment: The Crime of Raping a Child

Assistant Professor (University of Texas) Ian Farrell discussed the standard used to determine punishment for the crime of raping a child during a special lecture at the University of Wollongong today. The talk looked at a decision passed by the United States Supreme Court that last month ruled the death penalty for child rape violated a constitutional ban on ‘cruel and unusual punishment’.

“The result rested largely on the personal moral views of the Supreme Court justices, a very uncertain foundation indeed,” said Mr Farrell. Justice Anthony Kennedy, who spoke on behalf of the 4:5 court majority, said the US Constitution prevented any state from imposing the death penalty for the rape of a child when the crime did not result, and was not intended to result, in the victim’s death. He said that current social standards had evolved; meaning capital punishment should only be reserved for crimes that took the life of a victim.

The decision was good news for appellant Patrick Kennedy, 43, of Louisiana, who challenged his death sentence after being convicted for raping his 8-year-old stepdaughter in 1998. Mr Farrell said the case “shows the difficulty in judicial review of legislation under a written Bill of Rights, where such rights will often involve a moral standard and how we balance the sometimes competing values of fundamental rights and evolving moral values with democratic ideals and the rule of law.”

The relevance of today’s discussion was compounded by the remand of a 26-year-old Perth man this July who was accused of sexually assaulting a four-year-old girl in his care. Detective Senior Sergeant Gordon Fairman from the WA Child Protection Squad said the girl suffered serious injuries at the hands of her babysitter. “This is one of the most serious offences that we’ve responded to in recent times,” he said.

It is alleged the assault took place in the girl’s home in the Perth suburb of Osborne Park. The man is due for his next court appearance in two days.

In Australia of course, the man will not be facing the possibility of death sentence – how his punishment compares to that of murderers however will be an interesting one to watch.

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For more information relating to the case of Kennedy v Louisiana and the US constitution’s 8th amendment see ABC news

and

For more information regarding the court Appearance of the WA man convicted of child rape see:

http://www.abc.net.au/news/stories/2008/07/11/2301220.htm