To Help Raped Children, Don't Give Rapists Death: Ann Woolner

4-18-2008 National:

As an 8-year-old girl lay bleeding from a rape so brutal she would need emergency surgery, her stepfather called his boss to say he wouldn't be at work. He also asked how to remove blood stains from a white rug.

After that, by 7:40 a.m., he called a carpet cleaning company to set up an urgent appointment for bloodstain removal. Chemicals found later indicated he tried to clean the carpet himself.

Eventually, at 9:18 a.m., Patrick Kennedy called 911 to say that his stepdaughter had just been raped.

Kennedy, who lived outside of New Orleans, claimed neighborhood boys did it, and the girl backed him up. But the evidence pointed not to them but to him, and later she told her mother, and much later police, that when she had awakened to that terrible morning, her stepfather was atop her.

It takes no more than a cold reading of the facts for the viscera to want death for the man who did this, so horrific was the physical and, no doubt, psychic damage he inflicted.

As emotionally satisfying as that might be, allowing the death penalty for rape, even child rape, is wrong, if what you want is to help the victim.

Convicted and sentenced to die, Kennedy is asking the U.S. Supreme Court to declare Louisiana's 1995 law allowing execution for child rapists unconstitutional.

But just because the high court is limited to the issue of constitutionality doesn't mean columnists are.

So, before we get to constitutionality, consider an argument filed by advocates for the sexually abused who take a position that may surprise you.

Social Workers

Social workers who counsel raped children and nonprofit groups devoted to combating sexual assault say states do victims more harm than good when they allow capital punishment for child rape.

For one thing, the law encourages the rapist to kill the victim, as he would have little to lose and might get away with the crime by killing the only witness to it.

So argues a friend-of-the-court brief filed by the National Association of Social Workers, the National Alliance to End Sexual Violence and related organizations.

``What's the incentive to keep the victim alive?'' asks Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assault.

If the victim survives, reports the crime and the accused goes to trial, ``Louisiana's law would greatly magnify the trauma that child victims already experience while participating in the criminal justice process,'' the social workers say in their brief.

Years of Appeals

A death penalty case brings more publicity, more pretrial hearings, more post-trial hearings and years and years of appeals, thus requiring the child to relive the trauma time and again and delaying healing.

Nor is healing helped along by the guilt that can come with putting your father, your stepfather, your mama's boyfriend, your teacher or your minister on death row.

But the biggest concern is that a law like this makes the already serious problem of underreporting even worse.

``Victims are inhibited from coming forward out of shame, guilt, fear of being punished and fear that the abuser will retaliate against the victim or other family members,'' the brief says. Underreporting is most common when the abuser is a relative, family friend or otherwise close to the victim, as is the case in 70 percent of child sexual abuse cases.

So anywhere from 67 percent to 90 percent of child sexual abuse goes unreported, according to multiple studies over the past decade, as cited by the brief.

``Often the victim has ambivalent feelings toward the offender,'' Benitez says. ``They want the sexual abuse to stop, but very often they don't want the offender to go to jail, much less get the death penalty.''

More Molesting

And when no one reports what happened, the molester goes on molesting.

``That's no justice for anybody,'' Benitez says.

This case presents one of those counterintuitive situations where tough-on-crime legislation backfires.

You might find another example if you ask your district attorney about mandatory minimum sentences. In Georgia, prosecutors in the mid-1990s were finding ways around a new law requiring 10-year minimum prison terms for seven specific crimes. Then-Governor Zell Miller lambasted them -- and judges, too --for skirting the law he promoted.

Likewise, when Californians voted in 2006 on ``Jessica's Law,'' forbidding registered sex offenders from living within 2000 feet of a school or park, opposition came from an unlikely foe, the Child Molestation Research and Prevention Institute.

``Jessica's Law sounds good and is well-intentioned,'' the group says, but it is ``severely misguided'' and ``will likely decrease safety for children.''

Sufficiently Populated

That is because sex offenders are less likely to re-offend when they have stable lives and can reside in an area sufficiently populated to have treatment available. Residency requirements interfere with that.

As for child rape, at this week's Supreme Court arguments, justices who focused on other matters cut Kennedy's lawyer off when he twice tried to mention the social workers' viewpoint.

The main question for the court is whether it is cruel and unusual and therefore unconstitutional to impose a death penalty for a crime in which no one died. Is the sentence proportional to the crime?

I think not. What is more, allowing rape to be punished by death invites a throwback to the racist sentencing of decades past that made black men far more likely to be executed for rape than whites. It also flies in the face of irrefutable evidence that juries sometimes send innocent people to death row.

All that aside, if the Supreme Court says such laws can stand, then those who counsel young victims of rape, those who try to detect the crime and catch the rapists, will have an even tougher job on their hands. ..more.. by Ann Woolner is a Bloomberg news columnist. The opinions expressed are her own. To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net