Washington, D.C.–Attorney Tim Murray, a frequent commenter on my blog, has an interesting perspective on the new Supreme Court decision on child rape.
We have often discussed the problems of false allegations of molestation, particularly in the context of custody battles. Here, the Supreme Court cited this problem as one reason for declaring that the death penalty is unconstitutional for child rape.
In a 5-4 decision, the Supreme Court just overturned the death sentence of a Louisiana man convicted of the aggravated rape of his 8-year-old stepdaughter. Patrick Kennedy v. Louisiana, 2008 U.S. LEXIS 5262 (June 25, 2008). Justice Kennedy, writing for the majority, explained that the practice imposing the death penalty for child rape violated “evolving standards of decency,” the yardstick the court uses to decide whether a punishment is cruel and unusual.
The court expressly noted that one of the bases for its holding that the death penalty is unconstitutional for child rape is the risk of false claims. Here is what the court wrote:
There are, moreover, serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases. . . . .
This undermines, at least to some degree, the meaningful contribution of the death penalty to legitimate goals of punishment. Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. . . . .
See Ceci & Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33, 47 (2000) (there is “strong evidence that children, especially young children, are suggestible to a significant degree–even on abuse-related questions”); Gross, Jacoby, [*63] Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & C. 523, 539 (2005) (discussing allegations of abuse at the Little Rascals Day Care Center); see also Quas, Davis, Goodman, & Myers, Repeated Questions, Deception, and Children’s True and False Reports of Body Touch, 12 Child Maltreatment 60, 61-66 (2007) (finding that 4- to 7-year-olds “were able to maintain [a] lie about body touch fairly effectively when asked repeated, direct questions during a mock forensic interview”).
Similar criticisms pertain to other cases involving child witnesses; but child rape cases present heightened concerns because the central narrative and account of the crime often comes from the child herself. She and the accused are, in most instances, the only ones present when the crime was committed. See Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987). Cf. Goodman, Testifying in Criminal Court, at 118. And the question in a capital case is not just the fact of the crime, including, say, proof of rape as distinct from abuse short of rape, but details bearing upon brutality in its commission. These matters are subject to fabrication or exaggeration, or both. See Ceci and Friedman, supra; Quas, supra. Although capital punishment does bring retribution, and the legislature here has chosen to use it for this end, its judgment must be weighed, in deciding the constitutional question, against the special risks of unreliable testimony with respect to this crime.
It seems worth noting, if only to buttress the Supreme Court’s rationale, that the victim in this particular case made a false accusation before the real rapist was arrested. Specifically, after the victim was raped by her stepfather, the victim and her stepfather both claimed that the girl was raped by two neighborhood boys. “She told the psychologist that she had been playing in the garage when a boy came over and asked her about Girl Scout cookies she was selling; and that the boy ‘pulled [her by the legs to] the backyard,’. . . where he placed his hand over her mouth, ‘pulled down [her] shorts,’ . . . .”
This, of course, turned out to be a false accusation. We don’t know if the two neighborhood boys were arrested and charged, but cases are legion where innocent victims of false accusations spend decades in prison for rapes they did not commit. It is not far-fetched to imagine that this could have happened here, too.
The Supreme Court reached the correct decision.
I oppose the death penalty in general, for any crime, but I am pleased that the Court acknowledged the false accusations issue.