WASHINGTON – Lynda Marie Kirby sexually abused her young son in ways more horrible than anyone could imagine, and she should have had to pay a steep price for her crimes.
Kirby was orginally sentenced to 125 years in prison and was supposed to remain in prison for half that time — 62 1/2 years — before she became eligible for parole.
But the case was reversed on appeal; the prosecution couldn't retry the case because it couldn't expose the child to testifying against his mother a second time. Kirby ended up getting only two years in prison in return for a guilty plea. She will have to register as a sex offender for the rest of her life.
But there are many in Texas who think crimes of Kirby's nature deserve a greater punishment than imprisonment, and now the state is on its way toward approving the death penalty for child rapists.
Texas is the latest state to pass a form of "Jessica’s Law" — named after 9-year-old Jessica Lunsford of Florida, who was abducted, abused, buried alive and left to die in a dirt hole by a known sex offender who lived nearby — that includes the death penalty.
The Texas bill reserves the death penalty for people who rape children under age 6 at least twice, or children younger than 14 if the crime also involves the use of a deadly weapon, alcohol or drugs, death threats, bodily injury, kidnapping or gang rape. Texas Gov. Rick Perry is expected to sign the bill into law.
But in 80 to 90 percent of child rapes, the victims know their attacker, and in many cases the rapist is a relative. Critics of the bill say the knowledge that he or she could be responsible for a relative's execution could do more psychological damage to a child than the rapes themselves.
Terry Kirby doesn’t think people like his child’s mother deserve to die for their crimes.
"I think the death penalty is not the answer. I feel like restorative justice is more in order, and time — not just time behind bars but counseling and some type of program," Kirby said.
"Abuse is such a wide category and it’s despicable and it’s real hard on victims. But I tell you, I think there’s a lot of place — I do agree with the death penalty in certain cases, but not for molestation of a child."
Even in some of the most heinous abuse cases, many think the damage done to a child’s psyche knowing he or she could be responsible for sentencing a relative to death is worse than letting their attackers live.
"My son was sexually abused by his biological mother and the penalty could be the death sentence ... to me it seems that’s a reason for a child to not outcry. And really the thing is, kids need to be listened to, they need to be believed," Kirby said.
"You want kids talking and they need to feel safe about it and I think that this is pushing things in the wrong direction, to keep kids from opening up."
Jody Plauche, who was abducted in 1984 by his karate instructor and abused for more than one year, agrees.
"I can understand why people would want to put to death these repeat sex offenders," Plauche said. "But I think in the long run what you're going to see, you're going to see the reluctance of people to come forwards because the perpetrators are usually someone known to the family.
"It’s going to keep their victims quiet because they know Uncle Bill's going to be killed."
John Bradley, a Texas district attorney, has testified in the state legislature against death penalty sentences for child rapists.
"It has taken a lot of work over several decades for government to develop an understanding of how to approach a victim … to give them the confidence to come forward and testify with the security they'll be protected," he said.
"Now I think we've sort of turned that apple cart over by beginning with the proposition that the very child's testimony not only determines the child's own personal security but the potential death of the defendant."
But the death penalty option does have popular support. Some Houston Chronicle readers, for example, posted online comments about that state's possible new law. "It's about time! Sex crimes against kids is about as bad as it gets," "WorriedCitizen" wrote.
"Why wait till the second time ... isn't once enough?!!" added "ladygrant."
Death penalty aside, Bradley noted that the difficulty faced on the Kirby case retrial shows even more why some form of Jessica's Law is needed in Texas: It includes a new offense of continuous sexual abuse, which he says would have done a better job of accommodating the child's testimony and probably would have avoided a reversal on direct appeal.
Is Any Non-Homicide Crime More Deserving?
Louisiana is one of only five states that allow capital punishment in child-rape cases that don’t result in the victim’s death. Patrick Kennedy is on death row for the rape of his 8-year-old stepdaughter.
"Execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would," Associate Justice Jeffrey Victory wrote for the majority in the court’s opinion that Kennedy should be executed.
"Short of a first-degree murderer, we can think of no other non-homicide crime more deserving."
Emergency workers found Kennedy’s victim wrapped in a bloody cargo blanket and bleeding profusely. She was sexually abused so violently that a surgeon was called in to repair the damage. The victim first told the same story as her stepfather — that two boys from the neighborhood had raped her. The girl eventually told police that her stepfather was her attacker.
Plauche, who has no problem with death sentences for rapists who also murder children, is concerned that if more abusers know they could be sentenced to death based on a child victim’s testimony, "it's going to end up getting kids killed because there's not going to be a witness to testify against them."
Even though Louisiana is alone in allowing first-time offenders to be executed, Judy Benitez, executive director of the Louisiana Foundation Against Sexual Assault, said how many times an offender has struck should not be the issue.
"Not very many rapists or child rapists are first-time offenders — it may be the first time they're caught and prosecuted," Benitez said. "I think there's some value to the law (first-term offenders getting the death penalty) in terms of leverage for prosecutors … [but] being sentenced to death doesn't do anything more than the other option right now."
Whereas a prison sentence is a definitive punishment for an abuser, Benitez said the appeals process in a death penalty case can drag out for years and the victims can never get closure.
Kennedy’s lawyers plan to appeal his death sentence in state court and, if that doesn’t work, take it all the way to the U.S. Supreme Court.
At issue is a 1977 U.S. Supreme Court ruling banning the application of the death penalty for the rape of a 16-year-old. That case, Coker v. Georgia, stressed that capital punishment should be used only for a capital crime like murder.
Since then, many states stopped applying the death penalty to cases involving children, but Louisiana just amended its laws to specify that punishment for the rape of a child, not an adult, could include the death penalty.
"The issue before the United States Supreme Court is whether the 8th Amendment prohibits the death penalty for those circumstances," Bradley said. "This idea that we could withdraw an entire offense or offenses because the offense itself didn't result in the death of the victim is an interesting one, because it gets into the value of life and the value of quality of life.
"Destroying a child's personality and to have an enjoyment of future life is just as powerful an impact as say, ending a child's life by killing them."
But Bradley is worried about one case that could turn these "Jessica’s Laws" on their head.
In November 1998, the body of an infant dubbed "Baby Hope" was found inside a trash bag with duct tape over his mouth in a dumpster in Beaumont, Texas. His arms were taped across his chest with tape, as well.
The case remained unsolved until the summer of 2003, when it was determined that Kenisha Eronda Berry was the mother; her DNA and fingerprints were found on the duct tape. Berry was then in prison awaiting trial for abandoning another newborn, Paris, who was found June 6, 2003, beside the road in a remote part of Jefferson County, her eyes swollen shut from ant bites.
Berry was sentenced to death, but her sentence was overturned and she received life in prison.
"The evidence indicates that appellant has been dangerous only toward those of her own children whose existence she wanted to hide from her favored mate, that there is a very low probability that, if sentenced to life in prison, she will have any more children, and that therefore it is unlikely that she would be a danger in the future," the Texas Court of Criminal Appeals said in a 5-4 decision.
Bradley thinks this ruling could send the wrong message to child molesters who deserve the death penalty for killing their victims.
"I guarantee you, lawyers who represent child molesters ... are going to take that case and ram it down all of our throats. They'll say 'well, this guy is a pedophile, he hurts only children,'" Bradley said.
"I'm very concerned about this opinion, a 5-4 vote; it's a fairly narrow decision and nobody's talking about it. It is going to kill the availability of the death penalty before anyone can even put it into law."