WASHINGTON — The U.S. Supreme Court will hear arguments today in a Louisiana case that will decide whether a death sentence for child rape is constitutional.

The court's decision also will decide whether Richard Davis, an Ohio man convicted last year of raping a 5-year-old Caddo girl, remains on death row.
Davis is the second person sentenced to death under the Louisiana law. The first is Patrick Kennedy, 43, of Jefferson Parish, whose case will be the subject of today's oral arguments.

Kennedy was convicted of raping his 8-year-old stepdaughter so violently the child needed surgery. His attorney, Jeffrey Fisher of the Capital Appeals Project of New Orleans, is expected to tell the Supreme Court justices rape is not serious enough to merit the death penalty, even if the victim is a child.

Brady O'Callahan, the Caddo assistant district attorney who prosecuted Davis, said that case clearly merited the death penalty. He and other state prosecutors are closely watching the Kennedy case.

"I hope they leave the Louisiana law alone. The Constitution leaves the punishment of crimes to the state."

But since the Supreme Court reinstated the death penalty 30 years ago, justices have found ways to limit it. They excluded juveniles and mentally retarded killers from death row and decided states could not execute a man for raping an adult woman.

Bernadette Palombo, an LSU-Shreveport criminal justice professor, said imposing the death penalty may have unintended consequences — including a greater likelihood child rapists would kill their victims to keep them from reporting a rape.

Palombo also said she supports the death penalty in certain cases but it should not be used in child rape cases. "It's a horrible situation, but does it deserve the punishment of death?"

Louisiana's law runs against the trend. But it prompted four other states — Montana, South Carolina, Oklahoma and Texas — to take similar steps. A defendant in those four states, however, must have a prior conviction for sexually assaulting a child to be eligible for the death penalty. That restriction isn't part of the Louisiana law.

Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assault, traveled to Washington, D.C., this week to hear today's oral arguments. She said she opposes Louisiana's law because it has a "chilling effect" on the reporting of child sexual abuse.

Since most abuse is committed by family members or family friends, Benitez said, there's "an ambivalence" about turning in child abusers when the punishment is so harsh.

"They want the abuse to stop, but they don't want them on death row."