[The NYT article on this issue (the AP piece linked by Talking Points Memo leaves out a few important details) is entitled "Justices to Decide if Rape of a Child Merits Death." This sounds like a value judgment, while what they really are deciding if a state could execute, not if it "merits" it.]
The Supreme Court has just accepted for review a special sort of capital case: is it constitutional to execute for raping a child without an accompanying death? This adds to the "OJ" reference case (also out of LA) and the upcoming examination of lethal injection protocols (Kentucky but an issue nation-wide of late).
In 1977, the Supreme Court held that execution was not a legitimate punishment for rape, Coker v. Georgia.* The opinion, though involving a sixteen year old (married) woman, did speak of "adult" women at some points. But, it clearly noted "the death sentence is a disproportionate punishment for rape" and "we have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.”
The crime here was particularly heinous, Justice Powell's somewhat curious concurrence aside, but the ruling rested on a clear principle. The rape also involved a white man raping a white woman (see also the link), but racial history did affect the ruling -- over the years, the penalty was very disproportionately applied to black males. It was not just a neutral concern for women's purity and its ultimate violation.
On precedent, the lower court here is on dubious ground, even if child rape was not directly addressed in the case. There are other difficulties. There are two people -- both in LA -- on death row because of rape of a child. The law involved is different from a few other states that recently allowed the death sentence for child rape in that a second offense is not required.
Likewise, the particular defendant here has a serious claim of reasonable doubt. To degree some "residual doubt" is particularly problematic in death penalty cases, relying on testimony of young children is problematic. Those who don't have much sympathy might be more concerned that:
Another brief, from social workers and organizations working with sexual assault victims, describes the Louisiana law, with its broad definition of rape and its drastic penalty, as counterproductive and likely to lead to under reporting of offenses, especially within families.
The narrow question involved here limits the likely breadth of the ruling (it is telling, after all, there are all of two people on death row because of rape alone, and the law in question is particularly objectable even as these things go), but such a basic examination of a categorical challenge to the death penalty remains important. It also will help understand the views of the two newer justices.
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* The ruling also made a reference to the relevance of international practice that underlines that this was not just something that popped up in the last few years:
In [1958 case] the the plurality took pains to note the climate of international opinion concerning the acceptability of a particular punishment. It is thus not irrelevant here that, out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue.
Other citations to international practice can be listed from over the years as well. Right or wrong, it was a perfectly well accepted -- including by conservative leaning sorts like Justice White here -- practice for some time.