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What did Barack Obama and John McCain do when the U.S. Supreme Court on June 25 shot down laws that -- in some circumstances -- impose death sentences for consensual blow-jobs, teens having sex together, and adults spinning fantasies with each other online? The two presidential contenders didn't celebrate what was a fundamental victory for human rights. Instead, they quickly denounced the high court's contested 5-to-4 ruling.

The outcome in Kennedy v. Louisiana removes, for now, the U.S. from the list of countries where people face execution for consensual sex. That makes the case among the most important decisions since the high court struck down sodomy laws in 2003. Had the court's minority prevailed, Canada's Globe and Mail said in an editorial, it would "turn the state into a busy killing machine."

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Ugly cases, bad law

On first glance, Kennedy v. Louisiana wouldn't seem like a contest over sexual freedom. Defendant Patrick Kennedy, 43, was convicted in 2003 of raping his eight-year-old stepdaughter, leaving her injured and bleeding. Ambiguities surround the case: there was no physical evidence implicating Kennedy, and welfare authorities kept the girl from her mother until she accused her stepfather a year and a half after the assault. But Kennedy, who is black, was sentenced to execution under a 1995 Louisiana law stipulating death -- or life without parole -- for child rape.

Last December, he was joined on Louisiana's death row by Richard Davis, a white 35-year-old Ohioan found guilty in a case involving a five- year-old girl. Davis and his girlfriend (not the mother of the child) "on several occasions... performed oral sex on her, fondled her vaginal and anal areas, and forced her to perform sex acts on the couple," according to the Shreveport Times. In this case, the crime involved no physical force or injuries.

Besides Louisiana, five other states (and the U.S. military) have laws allowing execution, under some conditions, for sex crimes involving minors. Four of those laws were enacted in the last two years, and legislation in more states was pending.

"No one wants to be on the wrong side of a 15-second political spot on whether you're for or against child rape," says David Bruck, director of the Virginia Capital Case Clearinghouse.

Prosecutors in Louisiana (and nowhere else in the U.S.) have since sought the death penalty in four sex cases. Kennedy and Davis were the only defendants condemned, and the only people on death row in the U.S. for a crime not involving homicide.

A close reading of these various laws shows they cover conduct well beyond any standard notion of "rape." Oklahoma's death statute, which requires two convictions, includes as qualifying offenses internet sex chat entirely between adults where one of them poses as under 14. A clear instance of child rape was the centerpiece of the Kennedy case -- which made the majority ruling all the more sweeping. But far more sex crimes than "the worst of the worse" were targeted in this new wave of capital rape laws.

Out of sync

"Evolving standards of decency," Justice Anthony Kennedy wrote for the majority, prohibit execution for any offense short of first- degree murder or treason. "There is a social consensus against the death penalty for child rape," he went on, citing the small number of states now imposing that sentence and the more than 40 years that have passed since an execution on such a charge. (Curiously, justices on both side missed the military's provisions for executing child rapists, enacted by Congress in 2006.) "The death penalty," Kennedy continued, "is not proportional" for the crime, and so violates the Eighth Amendment's ban on cruel and unusual punishment.

As well, the majority cited practical problems with putting sex offenders to death. The mere threat might keep families from reporting offenses involving kin. The high evidentiary standards of capital trials impose extra traumas for victims. The justice noted "documented problem of unreliable, induced, and even imagined child testimony" creating a "special risk of wrongful execution." As well, rapists would lose an incentive not also to murder.

The majority's stance had the ring of déjà vu. In 1977 the court had overturned the death sentence imposed on Erlich Coker, a man convicted of raping a 16-year-old girl (who, because she was married, Georgia held to be an adult). Coker marked the end of an era in which hundreds had been executed for sex crimes -- some 455 between 1930 and 1964, with about 90 percent of them black. In Coker's wake, Florida and Mississippi courts ruled that precedent also barred execution for sex offenses involving children. In 2007, Louisiana's Supreme Court disagreed.

Watch your step

The U.S. Supreme Court's decision in Kennedy settled that dispute, and denunciations from the presidential candidates quickly ensued. McCain called the ruling an "assault" on the legal system. Obama concurred. "I think that the rape of a small child, six or eight years old, is a heinous crime," said the presumptive Democratic nominee, "and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."

Obama's words echo those of the four dissenting justices, led by Samuel Alito, who found there was no "basis for striking down all capital child-rape laws no matter how carefully and narrowly they are crafted." Existing laws, the minority asserted, met the test. It was enough to set an age -- for Louisiana, 13 -- beneath which a single instance of consensual oral sex warranted death. Or it was enough to require a previous conviction, as did, the statute in, say, Oklahoma, where one rung on the ladder to the scaffold could be to "lewdly or lasciviously look upon" a person under 14. Guardrails merely ankle-high were built into the laws Justice Alito praised -- laws, he said, whose "careful" and "narrow" crafting would "limit quite drastically the number of cases in which the death penalty may be imposed."

A tree with sturdy limbs

The high court majority thought otherwise, declaring that it "finds significant the substantial number of executions that would be allowed for child rape" under Louisiana's rationale -- potentially tens of thousands every year -- dwarfing the some 3400 cases of murder deemed intentional (hence potentially death-eligible) in the U.S. in 2005.

"Execute this man," Assistant District Attorney Lea Hall said as he pointed to a sobbing Richard Davis during closing arguments last December at Davis's trial in Caddo Parish for child fondling and oral sex. "Justice has a sword, and this sword needs to swing today." Yet in at least 40 cases since the enactment of Louisiana's capital rape law, judges handed down no death sentences in cases where defendants were found guilty of killing children.

Nonetheless, says Ben Cohen, one of Patrick Kennedy's attorneys, "I don't think we would have seen floods of executions," as he speculates about the consequences had his client lost. "But I do think we would have seen 20 years of litigation concerning the validity of these statutes."

Still, had Kennedy v. Louisiana gone the other way, legitimizing execution for sex crimes would have poured gasoline on fires already flaring.

In Weatherford, Texas, on July 3, James Kevin Pope, 43, was sentenced to 4060 years in prison for sex with three teenage girls -- in a case where the victims had not complained and no coercion was alleged. Last December in Atlanta, Cedric Bradshaw received a mandatory life in prison after trying, but failing for a second time, to fulfill Georgia's requirements to register as a sex offender. Bradshaw previously served five years in prison for sex with a 15-year- old girl when he himself was 19.

Who knows what the Supreme Court will look like after Obama or McCain get their chance to reshape it. But for now, a thin majority has balked at handing prosecutors and judges more rope for hanging.

A Kiss & Goodbye
Making death the wages of teen sex and internet fantasizing

Could you end up on death row for consensual sex in the U.S.? Before the Supreme Court ruled in Kennedy v. Louisiana on June 25, that was possible in half the six states that had enacted capital rape laws.

In Georgia, a 19-year-old who got convicted of oral sex with a 15-year-old, and who then proceeded to elope with his or her partner (what a prosecutor might call "kidnapping") would be subject to a death sentence.

Execution would be possible as well for an 18-year-old babystitter in Louisiana who gave an early birthday present of a blowjob to a boy just shy of 13. In any case, she would face -- and still does -- a mandatory life term without parole.

But the prize goes to Oklahoma lawmakers for the most expansive view of capital sex offenses.

In 2006, Oklahoma established that two convictions for "lewd molestation" of a minor under 14 warrant execution. The category is a catch-all: It covers people who "look upon... the body... in any lewd or lascivious manner" of a minor. It covers a crime committed by older brothers everywhere who are forced to share rooms with younger siblings: "ejaculat[ing] in the presence of...." Lewd molestation can even cover two adults chatting dirty together on the internet where one purports to be underage.

Author Profile:  Bill Andriette
Bill Andriette is features editor of The Guide
Email:	theguide@guidemag.com