The US Supreme Court narrowly ruled on Wednesday that a man convicted of raping a child cannot be sentenced to death, saying capital punishment must be reserved for murder cases.

By a one-vote majority of 5-4 the justices said the US constitution which prohibits "cruel and unusual punishment" bars the imposition of the death penalty "for the rape of a child where the crime did not result, and was not intended to result, in the victim's death."

In its written ruling, the court specified that even if a rape was particularly atrocious, it was impossible to set down a list of circumstances under which the death penalty would be justified, without opening the door to arbitrary decisions.

Over the past years many parts of the United States have tightened legislation against child rapists introducing maximum penalties of 25 years in prison for their crimes.

Some five states have also introduced the death penalty for the rape of a child, usually for repeat offenders.

Not a proportional punishment

The case before the Supreme Court involved an appeal by lawyers for Patrick Kennedy (43) who was sentenced to death in Louisiana in 2003 for raping his girlfriend's daughter five years earlier, when she was eight years old.

But in its ruling, written by Justice Anthony Kennedy, the Supreme Court cited a "national consensus" across most US states that do not have laws allowing capital punishment for the crime of child rape.

Given previous court rulings and its interpretation of the US constitution, the justices held that "the death penalty is not a proportional punishment for the crime of child rape."

In a dissenting opinion, justice Samuel Alito and backed by Chief Justice John Roberts and justices Antonin Scalia and Clarence Thomas, denounced the decision as too "sweeping."

The Supreme Court was banning the death penalty "no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime," Alito wrote.

Punishment is excessive

Since the death penalty was reinstated in the United States in 1976, it has only been carried out for crimes of murder.

The last execution in the US for someone other than a convicted murderer was in 1964.

And in 1977 the Supreme Court overturned the death sentence of a rapist, saying the punishment for the crime was excessive, and banned under the constitution.

In May 2007 however, the Louisiana state supreme court endorsed Kennedy's sentence, saying the 1977 ruling applied to the rape of an adult and not of a child.

Imposing the death penalty for child rape has been controversial even among victim support groups, with critics arguing that if the death penalty were introduced rapists would have no reason to save the lives of their young victims.

The "resort to the penalty must be reserved for the worst of crimes and limited in its instances of application," the court ruled.

"In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offence."

In the five states which have set the death penalty as the maximum for the crime, it has rarely been handed down: only one other rapist has been sentenced to death, also in Louisiana last month, a man convicted of abusing a neighbour’s daughter several times in 2004.

Both Louisiana men will now have their sentences changed to life without parole.

AFP