John T. Floyd Law Firm
Houston Criminal Lawyer
"Serious Criminal Defense Throughout Texas"
Experienced Criminal Defense Lawyer
Trials, Sentencings and Appeals
Federal And State Criminal Defense
Phone # (713) 224-0101
Toll Free 1-866-374-1327
E-mail jfloyd@JohnTFloyd.com
Top Lawyers for the People - 2008 HTexas
Comments on Criminal Issues
May 1. 2008
CHILD RAPE, THE DEATH PENALTY AND THE POPE
Houston Criminal Attorney John Floyd Discusses Constitutionality and Morality of Death Penalty for Non-Homicide Sex Crimes Committed against Children
While on the papal plane (Shepard One) heading for his first visit to America this April, Pope Benedict XVI informed reporters that he is “deeply ashamed” over the sexual abuse scandals which have rocked the Catholic Church of the United States over the past 25 years. He said the scandals caused him “great suffering.” These scandals involved priests sexually abusing young, mostly male children. A number of these priests were convicted of a litany of sex-related offenses, including aggravated rape. Most of their child victims were under the age of 12 years. Since 2002, when the most infamous scandals surfaced in Massachusetts, the Catholic Church had paid out more than $2 billion to settle civil lawsuits brought by the victims and their families. At least five dioceses were forced to declare bankruptcy.
“It is difficult for me to understand how it was possible that priests betray in this way their mission … to these children,” the Pope told reporters. “We are deeply ashamed and will do whatever is possible so that this does not happen in the future. We will absolutely exclude pedophiles from the sacred ministry. It is more important to have good priests than many priests. We will do everything possible to heal this wound.”
The first major priest/pedophile scandal broke in this country in Louisiana in 1983 when a Catholic priest named Gilbert Gauthe was arrested for abusing hundreds of children, many “altar boys.” He was indicted in October 1984 for one count of aggravated rape of a minor under 12 years of age, 11 counts of aggravated crime against nature, 11 counts of immoral acts with a minor, and 11 counts of contributing to delinquency of a juvenile by taking pornographic pictures. Gauthe received a 20-year sentence in 1985 through a plea bargain and served ten years in the state’s prison system before being released through goodtime.
Louisiana now has a law that authorizes the death penalty for “child rape.” Convicted pedophile priests like Gilbert Gauthe and Robert Melancon (who is serving a life sentence for the aggravated rape of an 8-year-old altar boy) would be eligible for the death penalty under Louisiana’s current child rape law. These kind of offenders would also be eligible for the death penalty in Texas if they had a prior conviction for a sex-related offense.
But is the death penalty constitutional for the crime of rape?
The United States Supreme Court heard oral argument on this thorny issue last month in the case of Patrick Kennedy who is challenging the constitutionality of the death sentence imposed upon him for the aggravated rape of his 8-year-old stepdaughter. Kennedy is one of only two men in this country with a death sentence for a non-homicide offense. The other is Richard Davis who was also convicted of rape of a five-year-old child in Bossier Parish, Louisiana.
The Louisiana Legislature in 1995 decided to make it a capital offense for anyone convicted of rape of a victim less than 12 years of age. Kennedy was the first person to receive a death sentence under the child rape law. The eighth-grade dropout who has an IQ of 70 and whose only criminal behavior involved issuing five worthless checks between 1987 and 1992 called 911 on March 2, 1998 to report the rape of his stepdaughter. Kennedy told the 911 operator he had let the girl go play in the garage when he heard her screaming. He rushed outside to find her in the yard adjacent to the house. Kennedy informed the 911 operator that his daughter told him two neighborhood teenaged boys dragged her from the garage where she was selling Girl Scout cookies and raped her in the yard. Kennedy also told the 911 operator that he saw one of the teenagers, who appeared to be about 18, riding away on a blue ten-speed bike.
When the police arrived at the scene, Kennedy escorted the officers into his daughter’s bedroom where they observed she was bleeding from the vaginal area. The young girl was rushed to the hospital and underwent emergency surgery to repair the damage caused by the rape. The child was then interviewed by investigators. She told them the same thing she had told the doctors. She had been raped by two teenaged boys. In one three-hour interview with a social worker and a psychologist, the girl described exactly how the boys assaulted her before fleeing on bicycles.
Two days later the police recovered a blue bicycle hidden in tall grass behind a nearby apartment. The bike matched the same description Kennedy had provided to the 911 operator, although it did not have as many gears and its tires were flat. Nearby the police a found a black shirt matching the one the young girl said had been worn by one of the assailants. The bike and shirt were linked to a tall, large African-American teenager named Devon Oatis who matched the description the child victim had given to investigators as one of her assailants.
The police, however, ruled Oatis out as a suspect. They noted the abandoned bicycle did not work and Oatis was “heavy set” while the assailant described by the victim has been “muscular.”
Having disposed of Oatis as a suspect, investigators turned their attention to Kennedy, even though they had no direct evidence to support their suspicions. The only indication they had of Kennedy’s possible involvement was blood found on the underside of the victim’s mattress. This led investigators to theorize that the rape had occurred in the child’s bedroom and that Kennedy had flipped the mattress to conceal the blood. This theory was bolstered when investigators spoke to a dispatcher at Kennedy’s place of employment and were told that the father had called in saying he could not report to work because his daughter had “become a lady.” Investigators pressed their theory. They spoke to a carpet cleaning service and learned that Kennedy had scheduled an emergency cleaning to remove bloodstains. In the face of this circumstantial evidence, the child’s mother refused to believe that her husband had molested her daughter.
Two weeks later investigators arrested Kennedy and took him to jail. The child was shortly thereafter removed from her mother’s home. The official reason given by Child Protection Services for the removal was because “Mrs. Kennedy believes the story that her daughter tells her about two strangers dragging her from the garage and raping her on the side of their house.” CPS workers said the child had to be “protected” from her mother’s “negative influences” and recommended “treatment” because of “allegations of sexual abuse by stepfather” and because “mother is denying abuse” and because child has alleged “other perpetrators [when] evidence points to stepfather.” CPS officials informed the child’s mother that she could regain custody of her daughter once she learned to “be objective concerning the evidence” that Kennedy had raped the child.
At this juncture the mother started telling her daughter that she believed Kennedy had raped her. She consoled by child by telling her that it would be “okay” if she told authorities that Kennedy had raped her. The child was returned to her mother several weeks later. Finally, some twenty months after the rape, the child was interviewed by investigators from CPS, the sheriff’s department, and the district attorney’s office during which she said Kennedy raped her early that morning causing her to faint.
In Louisiana, as in most states, all the prosecution needs to bring an aggravated rape indictment is the word of the victim. The State elected to charge Kennedy with a capital offense. Challenges by his defense counsel to that decision were rebuffed by the trial court. Defense counsel was finally able to gain access to the victim’s mattress for independent forensic testing. That testing revealed that the blood stains on the mattress did not match either the blood type of the victim or Kennedy. The prosecution immediately moved for a continuance, informing the court that it needed time to change its theory of the crime. The court granted the continuance.
Kennedy was finally put to trial in August 2003. It was difficult to seat a jury. The trial court dismissed 44 prospective jurors because they were either opposed to the death penalty on principle or they could not impose the penalty for aggravated rape. The prosecution did not present any “positive evidence” that Kennedy committed the rape, although it had performed forensic testing on the blood stains on the mattress as well as medical testing on the victim. The prosecution stated that its forensic testing was “inconclusive.”
The prosecution put the child victim on the witness stand but she quickly lost her composure and was never required to describe the rape to the jury. Kennedy’s defense counsel presented the theory that Oatis was the actual rapist. This defense was consistent with the victim’s initial and often repeated claims about being raped by two teenagers. Defense counsel, however, was unable to get Oatis into court because he fled the state to avoid a subpoena. The jury found Kennedy guilty, and after considering the aggravating factor that the victim was under 12 years of age, recommended a death sentence.
There are seven states and the federal government who have laws that authorize the death penalty for non-homicide offenses. Five of those laws involve crimes that pose serious threats to national security: treason, espionage, and air piracy. The other two laws involve kidnapping when the victim has not been released alive prior to the conviction of the kidnapper and mass importation of drugs.
Besides Louisiana, four other states – Montana, Oklahoma, Florida, and South Carolina - have had their child rape laws for years but have not utilized them in decades. Texas enacted its child rape law during the state’s 2007 legislative session. This law can be applied only to offenders with prior rape or sexual assault convictions. Significantly, six other states – Alabama, Pennsylvania, California, Tennessee, Virginia, and Utah – have rejected efforts by some lawmakers and victims rights advocates to enact laws that capitalize child rape.
The states that sanction the death penalty for child rape are in league with countries like Nigeria, Jordan, Saudi Arabia, Egypt, and United Arab Emirates that also impose the death penalty for rape. The last person put to death in America for rape was in 1964 (and 1957 in Louisiana). The last person put to death for the murder and rape of a child was an African-American named Jessie James Ferguson who was executed in Louisiana’s electric chair in 1961. Since 1930, 455 persons were executed for rape in America; 405 of them African-American men convicted almost exclusively of raping white women.
New Orleans sex crimes prosecutor Kate Bartholomew sees no moral, legal, or racial problem with executing child rapists. “In my opinion,” she says, “the rape of a child is more heinous and hideous than a homicide. It takes away their innocence, it takes away their childhood, it mutilates their spirit, it kills their soul. They’re never the same after these things happen.”
Kennedy appellate attorney Bill Sothern disagreed. “When we look at what it means to be cruel and unusual,” he said, “this is exactly the kind of thing that raises these serious concerns of the constitutionality of Mr. Kennedy’s death sentence. When we look at the death penalty in the South we always need to be conscious of the role that race plays. And I think that the fact that Mr. Kennedy [is] a black from Jefferson Parish, a place with a troubling record of racial discrimination, I think that that speaks volumes.”
But it was Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assaults, who raised the most troubling question. She pointed out that wrongful prosecutions are higher in cases involving children because they are more susceptible to suggestive, leading questions by prosecutors. The first DNA exoneration in this country occurred in 1989 and involved a wrongful conviction in a rape case. Gene Bibbins was the 125th person in the United States exonerated by DNA evidence. He had been convicted in Baton Rouge, Louisiana in 2002 for the aggravated rape of a 14-year-old girl who had made a “positive” in-court identification of Bibbins. The U.S. Justice Department in 1996 reported that at least 25 percent of all persons convicted in sex offense cases in this country are innocent. And 85 percent of those exonerated in sex offenses were African-American males convicted of raping white women.
There have been 1099 executions carried out in America since 1976 when the U.S. Supreme Court effectively reinstated the death penalty. Since the advent of DNA evidence, there have been 128 exonerations of death row inmates who were wrongfully convicted, mostly by erroneous eyewitness identifications. The 128 exonerations statistically suggest that one in eight of the 1099 persons executed could have been innocent. The possibility of wrongful executions among the 374 African-Americans put to death since 1976 is even greater because 223 of those executions involved a white victim. There are currently 3300 inmates on the nation’s death rows. Utilizing the one in eight ratio innocent-to-execute guide, it can be reasonably said that as many as 400 of the 3300 condemned inmates are potentially innocent.
The U.S. Supreme Court on April 16, 2008 rejected a challenge by two death row inmates that Kentucky’s lethal injection protocol constituted cruel and unusual punishment. Given the politically conservative makeup of the nation’s high court, it can be assumed that the justices will rule in favor of Louisiana’s child rape law. These two cases portend that the death penalty will be a fixture in the nation’s criminal justice system for decades to come.
That is a terrible tragedy, a blight on the nation’s soul. The death penalty is a regional punishment. 901 of the 1099 persons executed since 1976 were put to death in southern states. Nearly half of those executed were put to death by Texas and Virginia alone. If one person is executed per day, it will take nearly nine years to kill off the 3300 condemned inmates in this country – and with approximately 120 death sentences being handed out each year, it will take two executions every fourth day to kill off the entire crop.
It can be done. We could join ranks with China who executed at least 470 people last year, making it the most prolific execution nation in the world – according to Amnesty International. Iran was a close second with 377 executions that included the stoning death of a man who committed adultery and the execution of a 13-year-old boy for some unknown offense. Amnesty reported that at least 3,347 executions were carried out in 51 countries last year from the estimated 27,500 population on the world’s death rows. One of those executed was an Egyptian beheaded in Saudi Arabia for sorcery.
While the death penalty horizon is bleak, there are flickers of hope. Public support for the death penalty has declined over the last ten years. Still, as many as 65 percent of the American public favor the ultimate penalty for at least some kinds of murder. Some jurors who have voted for the death penalty are beginning to have second thoughts about their decisions. For example, when Kenneth Boyd became the 1000th person executed in 2006 in North Carolina, two of the jurors who had voted to impose the death sentence on him had pleaded with the governor to spare the killer’s life.
Susan Childress, writing in Newsweek (Oct. 27, 2007), pointed to the Louisiana case of Dan Bright who was sentenced to death in 1996. The jury forewoman in the Bright case, Kathleen Hawk Norman, later filed an amicus brief in support of his effort to win a new trial. Bright’s conviction was reversed in 2006 leading to his release from prison. Norman formed Jurors for Justice, an advocacy group for jurors haunted by the death verdicts they voted for. Newsweek reported that before his release but still in shackles Bright told Norman: “You were used like I was used. Do me a favor—don’t forget about the others.”
This brings us back to the Pope and the Catholic Church scandals which has fueled the efforts of victims rights advocates and lawmakers to lobby for the death penalty for child rape.
Is America prepared to condemn and execute a white 65-year-old priest for sexually molesting (a crime of rape in Louisiana) an 8-year-old altar boy? Or, is the child rape death penalty reserved for a functionally retarded African-American janitor who molests his stepdaughter?
SOURCES: Brief for Petitioner, Patrick Kennedy, U.S. Sup.Ct., Jelpi P. Picou & G. Ben Cohen, The Capital Appeals Protject, 636 Baronne Street, New Orleans, Louisiana 70113; Pope “deeply ashamed” over sex abuse, MSNBC.com, April 15, 2008; Facts About the Death Penalty, Death Penalty Information Center, April 1, 2008; The Death Penalty, Beyond Eye For An Eye, CBSNews.com, April 14, 2008; The Supreme Penalty for Rape, Newsweek, April 12, 2008.
© JOHN T. FLOYD LAW FIRM
HOUSTON CRIMINAL DEFENSE ATTORNEY
[ Back to top ]
