— Lyn Stoesen, News Staff

NASW has filed a brief in a case before the United States Supreme Court addressing the imposition of the death penalty for child rape in Louisiana. NASW has also filed a brief in a U.S. Court of Appeals regarding the strip-search of a 13-year-old student in Arizona.

Death penalty

In the case Patrick Kennedy v. State of Louisiana, Kennedy has been sentenced to death after being convicted of raping his eight-year-old stepdaughter. The Louisiana Supreme Court ruled in May 2007 that the U.S. Supreme Court's 1977 decision barring capital punishment for rape does not apply when the victim is under age 12.

NASW and its Louisiana Chapter previously filed a brief asking the U.S. Supreme Court to accept the case for review, and in January, the high court granted certiorari. A second brief has been filed addressing the legal merits of the case.

The brief argues that "the Court should eliminate the death penalty for child rape, a penalty that harms abused children rather than helps them," with four arguments:

• Permitting the death penalty for child rape will worsen the problem of underreporting sexual abuse.
• Allowing Louisiana to execute child rapists will increase the incentives that child molesters have to kill their victims.
• The Louisiana statute will greatly magnify the trauma that child victims already experience while participating in the criminal justice process.
• Imposing the death penalty for child rape would equate the severity of that crime with the most egregious murders, thus impeding victims' recovery.

"The consequences of the Louisiana statute authorizing the death penalty for child rape are perverse — almost certainly increasing the amount of child sexual abuse, placing the victims of child abuse at greater risk of murder and increasing the trauma that such victims suffer," the brief concludes. "This court should invalidate the Louisiana statute to protect the victims of child rape and to clarify that, despite the heinous nature of this crime, the Eighth Amendment forbids the execution of child rapists."

NASW was joined in the brief by the National Alliance to End Sexual Violence, the Louisiana Foundation Against Sexual Assault, the Texas Association Against Sexual Assault, the New Jersey Coalition Against Sexual Assault and the Minnesota Coalition Against Sexual Assault.

The brief was prepared by the pro bono efforts of David Gossett and Kevin Ranlett of Mayer Brown LLP of Washington, D.C. Joseph Thai of the University of Oklahoma College of Law was also on the brief.

Strip-search

In the case Redding v. Safford Unified School District No. 1, Savana Redding was subjected to a strip-search after another student claimed she had received prescription Ibuprofen from Redding, which was barred at the school.

The case is currently in the U.S. Court of Appeals for the Ninth Circuit.

NASW argues that the Fourth Amendment prohibits such a search, submitting a brief "to explain and document why school strip-searches of youth and children are so extremely intrusive and to demonstrate their traumatic effect on adolescents and school communities."

The brief makes two arguments:

• A strip-search of a 13-year-old girl by school authorities is an extraordinarily intrusive search. The brief details social science research that has indicated that strip searches can cause severe emotional and psychological harm to children. "NASW recognizes the importance of treating children in ways that recognize their developmental differences, including in the disciplinary context," the brief states. "Because strip-searching children at school clearly does inflict damage . . . NASW urges that disciplinary practices in schools 'must reflect the desire to shape students' behavior toward productive participation in schools and society,' and utilize a problem-solving process with parents and guardians." The brief also notes that in similar cases, courts have agreed with researchers that strip-searches are excessively intrusive and traumatic.
• The excessively intrusive search in the Redding case was not justified by any sufficiently reliable basis for the search or by the nature of the suspected infraction.

"The question for the court is whether a suspicion that an honors student with no disciplinary problems might have menstrual cramp medication (even though none was found in her backpack), based on an uncorroborated tip from another student already in trouble for possessing the same medication, justifies a strip search that fully exposed a 13-year-old female, subjecting her to immediate humiliation and embarrassment and to potentially long-term emotional and social trauma," the brief concludes. "If children retain any right to privacy at the schoolhouse, as our Supreme Court has said they do, the answer must be a resounding no."

NASW was represented by the pro bono law team of David Handzo, Julie Carpenter and Michael Hoffman of Jenner & Block LLP of Washington, D.C.

Get NASW legal briefs on the Amicus Brief Database.