Judicial Notebook

On March 2, 1998, Patrick Kennedy called 911 to report that his 8-year-old stepdaughter, H.L., had been raped by two teens. H.L. confirmed the report, but suspicion mounted over her story, and police turned their attention to Kennedy. Twenty months after the incident, H.L. admitted that Kennedy raped her. He was arrested. Kennedy--an African--American with an IQ of 70-151was found guilty and sentenced to death (Louisiana v. Kennedy, 957 So.2d 757, 2007).

Is child rape execution-worthy?

Although 14 states allow the death penalty for non-homicide-related crimes such as treason, kidnapping and aggravated assault by prisoners, only five allow executions for rape, and those cases are limited to child rape. This was not always the case. Prior to 1972, defendants convicted of rape frequently received a death sentence, but the Supreme Court's Georgia v. Furman ruling forced states to retool their death penalty statutes to make the penalty less discriminatory and capricious. The Supreme Court took special note of rape in 1977, ruling that death was a disproportionate penalty for the rape of an adult woman (Coker v. Georgia, 433 U.S. 584, 1977). At issue now is whether that precedent holds for cases involving child rape.

In the last 10 years, several states, including Oklahoma, Montana and South Carolina, have adopted child rape as an offense worthy of capital punishment. In Kennedy, the Louisiana Supreme Court ruled that the addition of child rape to so many states' death penalty statutes showed a trend toward accepting rape as an execution-worthy offense, though this analysis contrasts with the U.S. Supreme Court's recent opinions, which narrow the types of crimes eligible for the death penalty (Atkins v. Virginia, 2002, exempts mentally retarded people from execution; Roper v. Simmons exempts people under 18.) This spring, the Supreme Court will examine Kennedy to determine whether child rape is an execution-worthy crime, but the case raises several psychological questions. Are African-Americans more likely to receive the death penalty for raping a child? Should children's testimony in rape cases be enough to convict and sentence defendants to death, when research suggests that children are susceptible to memory errors? In Kennedy, only jurors willing to execute for child rape were allowed on the jury. Do such jurors hold biases against sex-crime defendants?

Prejudice among jurors

During jury selection for a sex-offense case, a juror recently stated, "I'm very prejudiced against child molesters and rapists and I think they should be lashed," (Vidmar, Law and Human Behavior, Vol. 21, No. 1). As this statement shows, sex offenses carry a social stigma. Cultural norms and emotions evoked by sex offenses may create a uniquely prejudiced jury pool, making it difficult for defendants to obtain a fair and impartial jury.

Generic prejudice or stereotypical attitudes and biases about a crime may affect jurors before they enter the courtroom. Jurors in sexual-offense cases may believe that somebody is accountable for this despicable crime, regardless of who the specific defendant is and what specific evidence is presented. Indeed, Vidmar found that 36 percent of prospective jurors claimed they could not be impartial in sex-related trials. More troubling: Jurors exposed to incest cases exhibit higher amounts of generic prejudice, and generic prejudice is especially pronounced for jurors in sex-offense trials compared with homicide trials. Research further suggests that jurors perceive sex crimes as especially heinous, leading to more guilty verdicts. Given Kennedy, could generic prejudice lead to more death sentences for child rapists as well?

Sex-crime defendants are greatly disadvantaged in capital trials. Not only must they overcome the well-documented pro-prosecution biases exhibited by jurors in death penalty trials, they must also overcome sex offense related generic prejudice. Although the legal system has built-in remedies to address juror bias such as voir dire and change of venue, these remedies may be impractical or ineffective for generic prejudice--though it is possible to identify generically prejudiced jurors by extensively questioning them about biases, thus increasing the likelihood of finding and removing such jurors from service. Ideally, expert testimony should be allowed in sex-offense cases to educate jurors about the effects of generic prejudice.

"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).