Joanna Schroeder asserts that the viral story of a woman who was raped and made pregnant leads to many bigger questions about how states should legislate parental rights of rapists.
There has been a wildly popular news story making its way through both the Internet and mainstream media the last two days—that of the very brave Shauna Prewitt who is sharing the torment of women like herself, who conceived a child from being raped.
It’s impossible for most of us to imagine the trauma of a woman who was raped, and made pregnant by the rape (estimates of these occurrences range between 15,000-30,000 babies conceived via rape each year, depending upon data collection methods), and then legally forced to see her rapist on a regular basis while fighting for custody of the conceived child. It’s beyond comprehension, really, and it strikes a chord within our psyches as one of the most wrong things that could happen to a person at the hands of the law.
It’s natural to have a knee-jerk reaction and to think, “That should be illegal!” But we must take a closer look and examine exactly how a law against this would work.
First, we should be clear that there are states with laws on the books that talk about custody in the case of fatherhood via rape. The Daily Kos blog details such data. This is going to be a long quote, but the information contained is critical to our discussion:
The latest case to discuss this issue is Shepherd v. Clemens, 752 A.2d 533 (Del. 2000). There, the court concluded that when a child is conceived and born as the result of an unlawful sexual intercourse as defined in the code, the biological father shall not be permitted visitation. This does not violate constitutional principles. “No court has held that the mere fact of biological fatherhood that was the result of a conception during a criminal act and that is unaccompanied by a relationship with the child, creates an interest that the United States Constitution protects in the name of liberty.” See Lehr v. Robertson, 463 U.S. 248, 259-62 (1983). See generally Deborah L. Forman, Unwed Fathers and Adoption: A Theoretical Analysis in Context, 72 Texas L.Rev. 967 (1994).
Other states have similar statutory provisions. Alaska Stat. § 25.23.180 (1999) court may terminate parental relationship if child was conceived as a result of sexual assault, and termination is in the best interests of the child); Cal. Welf. & Inst. Code § 361.5 (West 1999) (reunification not provided to parent of child conceived as result of sexual assault); Conn. Gen. Stat. § 45a-717 (1999) (court may terminate parental rights of parent convicted of a sexual assault resulting in the conception of a child, except in certain cases of statutory rape); Idaho Code § 16-2005 (1999) (court may grant termination of parental rights as to a parent who conceived a child as a result of rape); 750 Ill. Comp. Stat. Ann. 50/8 (West 1999) (father’s consent to adoption not required if he fathered child as result of criminal sexual abuse or assault); Ind. Code § 31-19-9-8 (1999) (notice to father of adoption proceedings not required if child conceived as result of rape, incest, or sexual misconduct with a minor); Me. Rev. Stat. Ann. Tit. 19-A, § 1658 (West 1999) (court may terminate parental rights of person who conceived child as result of crime involving sexual intercourse, unless court informed that the act was consensual); Mo. Rev. Stat. § 211.447 (1999) (biological father’s guilty plea or conviction of forcible rape of the birth mother is conclusive evidence to termination his parental rights); Nev. Rev. Stat. § 125c.210 (1999) (father has no right of custody or visitation if child conceived as result of sexual assault unless consented to by mother and is in the best interest of the child); N.J. Stat. Ann. § 9:2-4.1 (West 1999) (see infra text accompanying this note); N.M. Stat. Ann. § 32A-5-19 (Michie 1999); N.Y. Dom. Rel. Law § 111-a (McKinney 1999); Okla. Stat. Ann. Tit. 10, § 7006-1.1 (1999) (stating that the court may terminate parental rights if the child was conceived as a result of rape); 23 Pa. Cons. Stat. Ann. § 2511 (West 1999) (father’s parental rights may be terminated if child conceived as a result of rape or incest); S.C. Code Ann. § 20-7-1734 (Law Co-op. 1999) (father not entitled to notice of adoption proceedings if child conceived as result of criminal sexual misconduct); Wis. Stat. §§ 48.42, 48.415 (1999) (§ 48.42 stating that no notice is required to the father in a termination of parental rights case when the child has been conceived as a result of sexual assault or rape; § 48.415 stating that parenthood as a result of sexual assault or rape is grounds for involuntary termination of parental rights).
Now, let it be known that I am nowhere near a lawyer or member of law-enforcement. My degree from UCLA is in Women’s Studies, and so I obviously have to approach this conversation as a layperson, but I think it’s important to discuss what we really want, and need, in this situation in order to create a safer society, rather than react out of unreasoned emotion.
Most, if not all, of the states that have legislation about the case of paternity rights of rapists use wording that seems very helpful. For instance: “Conn. Gen. Stat. § 45a-717 (1999) (court may terminate parental rights of parent convicted of a sexual assault resulting in the conception of a child, except in certain cases of statutory rape)“. This statute simply states that the court has the right to block a man convicted of raping a woman from having parental rights to resulting child. Such was the case with Shauna Prewitt, her baby’s father’s rights were revoked. This seems like good language—it allows the court the discretion to determine whether or not said father should have paternal rights.
In Connecticut, the law applies to those convicted of the sexual assault that resulted in the child, but not to those who are accused of a rape. But many people on the Internet are talking about how these law should also apply to those who are also accused of rape.
This may cause another knee-jerk reaction. We think, no way can we make a law preventing fathers accused of raping the mother from having parental rights! They haven’t even been convicted, imagine the abuse this law could suffer. And while I maintain that the number of women who would lie about being raped and having conceived a child is relatively small, the possibility of any accusation having legal consequences to a person’s parental rights is frightening.
And so we return to the notion that a father should only lose parental rights or custody if he’s been convicted of the crime. But we have to bear in mind that there is a pretty serious gap between the time in which a person is accused of a crime and when he or she will actually be tried and found guilty or innocent of said crime. This interim time can often be up to 18 months, and being as a baby gestates for only 38 weeks, there’s a very real possibility that even in the most obvious cases of rape (i.e. a lot of physical evidence), a father could petition for parental rights and custody, and no law would bar him from doing so until he’s convicted.
It seems nearly everyone can agree that our legal system is deeply fallible in determining guilt in rape cases. There are notable examples of women who have falsely accused a man of rape, only to recant after the man has served prison time. These cases are relatively rare compared to how many rape convictions are handed down with solid evidence that they are just verdicts, and yet they happen. Beyond that, as Prewitt points out in her article in the Georgetown Law Journal, the conviction rates of reported rape are startlingly low compared with other serious crimes. Can we depend upon our judicial system to find just verdicts in rape trials? Many—on both sides—say no.
Finally we land in the middle ground, full of questions and stuck in an ugly quagmire. Should there be laws allowing a judge discretion in preventing a father from contacting the mother whom he’s accused of raping, as well as preventing him from gaining custody or even visitation of his child? Possibly. Should the accused father have his parental rights terminated on the basis of the accused rape? No.
Here’s why: As it stands, a judge in a family court can still deny the accused father access to the child regardless of the conviction. If the judge deems the father to be dangerous, he or she can deny access as they see fit, from a judicial standpoint. In collecting evidence, the judge will hear testimony from the mother and consider the accusation and evidence and then rule.
If a father has not lost parental rights, he can continue to pursue custody and do what happens in some of the stories Shauna Prewitt relays—drag the alleged victim into court on a regular basis for the duration of the child’s dependency, causing further trauma (imagine if the victim were one of the many rape survivors who experiences PTSD as a result) and ever-mounting legal fees.
And yet without conviction, it’s hard to imagine that a law keeping an accused rapist from access to—at the very least—due process in his custody process would be constitutional. It is not a perfect judicial system, but it is the one we have. With our presumption of innocence until proven guilty, a lot of grey area exists in which exploitation can occur. And yet without this presumption of innocence, we are not a free society.
To me, as an admitted layperson, it seems we need to look not only at laws like some of the states cited above have, but also elsewhere in order to protect rape survivors from further trauma. We need to look deeper, and get even more grassroots. We need to revolutionize the way we, as a society, regard rape victims. We need to respect them as we do victims of any crime. You know the old story, if a woman is mugged and her purse is stolen, we don’t say, “Why were you carrying a Louis Vuitton? Weren’t you asking for it to be stolen?” We need to see the victim as an innocent, just as the rapist is innocent until convicted. We need to be make the judicial system a safe place for victims of sexual assault—both men and women—to bring their cases as soon as they happen, when evidence is most available, so we have more accurate convictions.
We also need to understand that men can be victims of rape, even at the hands of women. If we’re talking about custody or parental rights being disallowed for either accused or convicted rapists, we also need to talk about what would happen in the case of a woman who became pregnant from raping a man. As far as I know there are no statistics about how often this happens, and if there are I’d bet they aren’t as peer-reviewed and replicable as we’d like them to be. But that doesn’t discount the fact that no doubt that pregnancies like this (even if rare) have occurred. Would that woman be exempt from laws that allow judges to terminate parental rights of men based upon an accusation or even conviction of rape?
There are no good answers here. We’re asking people to have faith in a very faulted system. We’re asking women who have been raped to return to court to face their rapists in order to determine custody and parental rights, at least until a conviction is handed down. But why do we do it?
For freedom and the equal right to due process for all individuals.
Because when we need the presumption of innocence, it is there for us, and it must apply to everybody.
What do you think of Shauna Prewitt’s mission to educate people about the suffering many mothers of rape-conceived kids experience?
Is “innocent until proven guilty” even the best system for maintaining freedom?
How best should we legislate parental rights and custody in cases of children who were conceived via rape?
How can we, at a grassroots level, change the way in which rape victims of both/any gender or sexuality are treated within the judicial system? How will this aid the process of protecting survivors of sexual assault who conceive?
For more reading, check out Yes, Rape Victims Get Erections, Too
Image of Custody of Child courtesy of Shutterstock