American law has for more than 30 years adhered to an eye-for-an-eye legal standard for capital punishment: Only murderers could be executed. But that may be about to change. The U.S. Supreme Court on Wednesday heard the case of a Louisiana man facing the death penalty for brutally raping his 8-year-old stepdaughter.

Supporters of the penalty say Patrick Kennedy’s crime was so heinous that death is the only appropriate punishment. But opponents say an execution might make victims more reluctant to report the crime — or motivate rapists to kill their victims. Should the death penalty be extended to child rapists? Ben Boychuk and Joel Mathis, the moderators of, weigh in.

Ben Boychuk:

The question before the Supreme Court is whether the Eighth Amendment’s prohibition of cruel and unusual punishment lets a state execute child rapists and, if so, whether Louisiana’s capital-rape law is narrowly tailored to pass constitutional muster. The question is not whether a victim or a victim’s family wants the perpetrator to die or to spend the rest of his life in jail. Nor is the question whether such laws create more victims.

Those are public policy questions best decided by elected officials, not unelected judges. The Louisiana legislature, in its wisdom, decided to extend the death penalty to monsters that rape helpless little girls. Society, by and large, understands that some crimes are so heinous that the only just punishment is death.

But the Supreme Court has established a murky precedent whereby a state’s death-penalty law must be weighed against “evolving standards of decency.” The court also ruled in 1977 that the death penalty was excessive for the rape of an adult woman, but not for all rapes. So the high court has an opportunity here to clean up some cloudy jurisprudence and ensure that justice is done. A monster like Patrick Kennedy can’t get the needle soon enough.

Joel Mathis:

If anybody deserves the death penalty, Patrick Kennedy does.

There is no penalty too great for the person who sexually abuses a child, particularly when that person is a relative charged with keeping the child safe. In such cases, it’s difficult to say that any punishment would be “cruel or unusual.” But that doesn’t make it a good idea to execute Kennedy.

Sexual crimes very often go unreported. That’s because the victim often knows the assailant and either fears him (the perpetrator is almost always male) or is confused about what happened. Many victims go years, decades or even lifetimes suffering in silence. And experts on sexual violence worry that allowing the death penalty for child rape would either make victims more hesitant to report the abuse or encourage rapists to kill their victims in order to hide their crimes.

A coalition of groups against sexual violence has made this case to the Supreme Court, writing: “By magnifying the possible effects of a report of child rape, the Louisiana statute will likely ensure that fewer victims are identified and receive treatment — and that fewer abusers are stopped from continuing to abuse their victims and from victimizing even more children.”

We should be tough on child rapists. They deserve no better. But we shouldn’t be so tough that we inadvertently create more victims.

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