Death for rape?

The U.S. Supreme Court is in the process of deciding whether or not child rapists can be awarded the death penalty.

Hes going to get it either way it goes. Gods going to get him in the end. Death is the easy out for him, and I dont think he deserves an easy out.

Penny Robertson (U.S.), a mother of three, on the death sentence to Patrick Kennedy, a child rapist.

Im not a moralist. Im a Judge. As a Judge, I look at the law. It seems for 43 years, no one has been executed but for murder.

Justice Breyer of U.S. Supreme Court during the Kennedy hearing (April 23).

THE people of Chennai are shocked by newspaper reports on the rape and murder of a three-year-old girl whose body was found in a pond on April 22, two days after she went missing. Rajendran, a 27-year-old painter, was arrested in this connection and he has since confessed to the heinous offence.

Only a week earlier a Delhi Police traffic constable had been arrested on the charge of raping a girl of 12 years. A Delhi businessman was an accomplice to the crime. A recent news report says that at least eight cases of child rape have been registered in the past one year in Virudhunagar district in Tamil Nadu. Then, from Austria came a report about the arrest of Josef Fritzl (73), who admitted to confining his teenage daughter in a dungeon for 24 years and continuously raping her.

These incidents of extreme human depravity more than confirm that child rape is not a mere aberration, and that it is reported more frequently from different parts of the world than we would otherwise imagine. In India, this is a real problem if one goes by the National Crime Records Bureau (NCRB) statistics. In 2005, 4,025 cases of child rape were reported. The figure went up to 4,721 in 2006, representing a 17 per cent increase. It is anybodys guess how many cases go unreported.

My own experience has been that rapes are the most underreported of all crimes. Apart from the odium that is attached to the victim, the fact is that a large proportion of sexual offences are committed by persons who are close to the victim, either an older relative or a family friend, and the victim herself may not like to cause embarrassment to parents and others in the immediate family.

Undoubtedly, next only to murder, the offence of raping a child is the most abhorrent to human sensitivity. Many penologists and jurists believe that it deserves to be punished as seriously as murder is. Wherever capital sentence is on the statute book for murder, says this school of thought, the punishment should be the same for those found guilty of raping children. Their perception is that once a child is raped, she can hardly recover from the trauma and becomes a mere walking corpse.

There is the other school which believes that we should not exaggerate the gravity of child rape and demand a death sentence to be imposed in each such case. According to its proponents, rape is no doubt a serious violation of human rights, but it cannot be equated to murder. They would opt for a lesser punishment, say, life imprisonment without the right to parole. This wide divergence of opinion may not be easily resolved.

It is in this backdrop that the subject finds itself elevated to the United States Supreme Court, which, as recently as on April 23, heard the appeal of Patrick Kennedy (43), a resident of Louisiana who was convicted to death in 2004 for the rape of his eight-year-old stepdaughter.

Patrick Kennedy committed the crime in 1998 and the victim had to undergo surgery to treat the injuries she had sustained. The case went up to the Louisiana Supreme Court, which, without reservation, ruled that Patrick Kennedy deserved to die.

While upholding the lower courts award of death sentence to Patrick Kennedy, it added: if the court is going to exercise its independent judgment to validate the death penalty for any non-homicide crime, it is going to be child rape. It is this ruling that has been challenged in the U.S. Supreme Court, which appeared a divided house when it heard the case last month.

In concrete terms, what the court should decide in Kennedy v. Louisiana is whether death for a child rapist attracted the definition of a cruel and unusual punishment that is barred by the Constitutions Eighth Amendment. The interventions in the U.S. Supreme Court in the Kennedy case, as reported widely by the U.S. media, make interesting reading and are reflective of the popular impression that the nine Judges can be put in slots that represent both the liberal and the conservative.

Interestingly, 31 years ago, the court was confronted with a somewhat similar question in Coker v. Georgia. On that occasion, it had prohibited the execution of an accused who had been charged with the rape of an adult. The court had ruled: [T]he death penalty, which is unique in its severity, is an excessive penalty for the rapist who, as such, does not take human life. The fundamental question is whether or not the rape of a child needs to be looked at differently. Civilised human beings all over the world should answer the question in the affirmative.

However, Chief Justice John G. Roberts, one of the youngest ever to occupy the prestigious and powerful chair, wondered (during the hearing on April 23) how the much-desired consensus on this important issue could ever develop among the 50 States if the U.S. Supreme Court straightaway ruled that death for a rapist was unconstitutional. Roberts was probably articulating support for a conservative approach to deal with such crime. But he would not unhesitatingly commit the U.S. Supreme Court to such a standpoint.

Justice Samuel Alito, a more recent entrant into the elite club of nine, asked the question whether the worst case of rape that can be envisioned was less heinous than murder that merited capital punishment. Another judge, Anthony Kennedy, reminded those in the court that it was not as if there was no offence other than murder that was punishable with death. He pointed out treason as one case that also attracted death.

Patrick Kennedy is being defended by, among others, Jeffrey Fisher, an eminent Stanford University professor whose brilliance and persuasiveness may not be matched by the Louisiana State prosecutors. Fisher and his likes are taking advantage of the nationally growing disenchantment with capital punishment. They should be conscious that the U.S. media have been equally vociferous on the subject.

Perhaps, no one has been more persistent and eloquent than The New York Times, which has written editorial after editorial denouncing the unfairness and the utter racism that have come to mark the award of death. Repeated exonerations more than 100 in the past few years following DNA (Deoxyribonucleic acid) testing, which has fortunately been recognised as the right of those awaiting execution, is one argument touted by many in the anti-death lobby for removing the extreme penalty from the statute books.

The fact that a huge majority of those executed or those who are on death row are blacks has also come in handy to those who consider the penalty as biased, barbaric and uncivilised. They point out repeatedly that the U.S. is working contrary to an international trend that abhors death for a criminal at the hands of the state.

All this even as the number of executions is showing a distinctly declining trend. For instance, in 2006 there were only 53 in the whole country. A few years ago, one of the States, New Jersey, actually abolished the death penalty for any offence.

The U.S. Supreme Court will give its ruling in Kennedy v. Louisiana only in summer. It is difficult to speculate what exactly that would be. It is not even certain that the verdict would be unanimous. Given the differing predilections and perceptions of the nine Judges one can safely predict a division. Even if it were so, it would be difficult for any of the Judges to ignore a popular dissatisfaction with the manner in which criminal justice is administered in the U.S.

Also in debate is whether the court decision could be blind to the point of view that making rape punishable with death will result in even greater underreporting of this class of crimes.

Incidentally, this is something which our own lawmakers and women activists are blind to whenever they demand death for rapists. Finally, when they want to impose this severest penalty, courts could ask for conclusive proof of guilt, a standard that many police investigations in any part of the world, and especially India, can hardly stand up to.

The already deplorable conviction rates for rape would sink further if laws stipulate the capital punishment, even if the victim was a child. The issue, therefore, calls for caution that may only slightly be laced with emotion.