Two Legal Decisions Support NASW Positions

— Lyn Stoesen, News Staff


NASW hailed a June decision from the United States Supreme Court that held that the imposition of the death penalty for child rape violates the Eight Amendment’s prohibition against cruel and unusual punishment. The association also lauded a Ninth Circuit Court of Appeals decision that found that a strip search of a 13-year-old girl was unconstitutional. NASW had filed briefs in both cases.

Death penalty

NASW and its Louisiana Chapter filed two amicus curiae briefs in the case, Kennedy v. Louisiana. One brief urged the court to accept the case for review; the second addressed the merits of the case and argued that the death penalty for child rape harms the victims it is intended to help.

“We are heartened that the Court found the real-life experiences of victims and their families, as well as research on the reporting of child sexual abuse, persuasive,” said NASW Executive Director Elizabeth J. Clark. “This ruling supports the investigation and prosecution of child sexual abuse while providing an opportunity for victims to heal.”

In the 5-4 ruling, the majority opinion stated that, “It is not at all evident that the child rape victim’s hurt is lessened when the law permits the death of the perpetrator” and noted that repeated testimony that is required of the child victim in a capital case “forces a moral choice on the child, who is not of mature age to make that choice.”

NASW’s brief argued that “the Court should eliminate the death penalth for child rape, a penalty that harms abused children rather than helps them,” stating that:

  • 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; and
  • Imposing the death penalty for child rape would equate the severity of that crime with the most egregious murders, thus impeding victims’ recovery.

In its ruling the court cited arguments from NASW’s brief that the death penalty: provides an incentive for the perpetrator to kill his victim who is often the only witness; is likely to increase the emotional trauma to the victim due to repeated court testimony about acts of brutality; and may increase the underreporting of child sexual abuse, as perpetrators are often family members.

The court also considered the lack of clear consensus among states on the penalty for child rape and the evolving standards of decency in forming its ruling.

Strip searches

In July, the Ninth Circuit Court of Appeals issued a 6-5 decision in the case Redding v. Safford Unified School District, holding that the strip search of a 13 year old student for ibuprofen was unconstitutional. NASW and its Arizona chapter field a brief in the case.

“We are pleased that the Ninth Circuit Court of Appeals honored the Supreme Court precedent on the search and seizure of students and correctly found that the strip search in this instance is unconstitutional,” Clark said. “Children should not be subjected to the emotional trauma inherent in strip searches, absent compelling circumstances.”

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

The brief made two arguments:

  • A strip search of a 13-year-old girl by school authorities is an extraordinarily intrusive action. The brief detailed social science research indicating that strip searches can cause severe emotional and psychological harm to children. 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 brief argued that “if a school strip search of a 13-year-old girl could be justified in some circumstances, it was certainly not justified here. To the contrary, the uncorroborated tip of another girl already in trouble for actually possessing the ibuprofen was not even close to adequate grounds to conduct the strip search.”

For information: Amicus Brief Database.