South Carolina Criminal Defense Blog

Since the June 25th decision of Kennedy v. Louisiana, a military statute has been “discovered” that permits capital punishment for child rape in court martial. No lawyer mentioned this statute in brief or oral argument, and no justice mentioned the law in the opinion of the court. Many bloggers and writers have debated whether this statute changes the national consensus against the death penalty. Somehow, the more interesting question is how did no one know this law existed?

When the statute was passed in Congress the provision was on the 129th page of a 420 page omnibus authorization bill. The provision was neither mentioned nor debated by any legislator.

This bill has been approved by the president for over two years and no attorney ever seemed to know it was there.

Mistake in fact is a valid defense against a crime. You cannot steal what you believe to be yours. Mistake in law is not a valid legal defense. You can be convicted of DUI even if you do not know the legal BA level. You see, every Tom, Dick and Harry is on notice of all statutes and all case law no mater how complicated. This leads me to believe that the law is kind to those who know it.

The UCMJ statute makes me wonder who really knows the law. Nine of the most brilliant legal minds, all their law clerks, and professional SCOTUS attorneys missed this law. Perhaps the most valuable thing we can glean from this controversy is your legal writing professor was right. It’s embarrassing not to know legal precedent.