Blogger Finds Flaw In High Court’s Child-Rape Ruling

(CN) - A blogger observed that the U.S. Supreme Court's decision to rule out the death penalty for child rapists contained a factual flaw that overlooked the military's treatment of child rapists, The New York Times reported.

The majority opinion partially based its decision on a "national consensus" that the death penalty should be reserved for murder crimes. Justice Anthony Kennedy noted that 36 states plus the federal government have the death penalty, but "only six of those jurisdictions authorize the death penalty for rape of a child."

The military law blog CAAFLog pointed out that the justices ignored the revised sex crimes section of the Uniform Code of Military Justice, which added child rape to the military death penalty in 2006.

"But just two years ago, Congress did enact a law permitting the death penalty for the rape of a child, which makes the number of authorizing jurisdictions seven (Louisiana, Georgia, Montana, Oklahoma, South Carolina, Texas, and the military), not six," Marine Corps Reserve Col. Dwight Sullivan wrote in a CAAFlog entry called "The Supremes Dis the Military Justice System."

No one in the government or the 10 briefs filed for Kennedy v. Louisiana flagged the flaw, The Times said. The Office of the Solicitor General, representing the government, did not file a brief.

Jeffrey Fisher, a Stanford Law School professor who represented the defendant, said he and others on the defense team looked into the military law, but found only an "old provision" that predated the modern death penalty jurisdiction, The Times reported.

"We just assumed (the military provision) was defunct," Fisher told The Times. "We figured if somebody in the government though otherwise, we'd hear about it."

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