Thousands of pregnancies occur as a result of rape. Surprisingly, states are split over giving a father custody of a child conceived as a result of his act of rape. That is because parenting is a fundamental constitutional right. With Alabama’s strict new anti-abortion law, and other states looking to pass bills restricting abortion, the custody rights of rapists may be back in court.
Southern Man
According to the Washington Post, a young woman came to Family Services in Alabama last year saying she had been raped by her step-uncle. The rape crisis advocate heard the victim say something that “killed me, shocked me”:
The step-uncle, who was getting out of jail after a drug conviction, wanted to be a part of their child’s life. And in Alabama, the alleged rapist could get custody.
Incredibly, Alabama is one of two states with no statute terminating parental rights for a person found to have conceived the child by rape or incest, a fact that has gained fresh relevance since its lawmakers adopted the nation’s strictest abortion ban last month in May.
That new Alabama statute even outlaws the procedure for victims of sexual assault and jails doctors who perform it, except in cases of serious risk to the woman’s health.
Sweet Home Florida
I’ve written about the phenomenon of a rapist trying to get custody before, and it is actually a national problem.
Statistics, like the number children conceived as a result of sexual battery, are sobering. Each year, there are approximately 32,000 pregnancies resulting from rape, according to a 1996 study by the American Journal of Obstetrics and Gynecology.
Congress got involved. The Rape Survivor Child Custody Act (the “RSCCA”) was made into law as part of the bipartisan Justice for Victims of Trafficking Act.
The RSCCA authorizes the U.S. Attorney General to make grants to states that pass legislation terminating the parental rights of men who father children through rape.
Many states adopted laws terminating parental rights in rape cases after Congress passed the RSCCA, granting additional funding to help sexual assault victims in states that allow courts to end parental rights when there is “clear and convincing evidence” that a child was conceived by rape.
However, some states require a rape conviction to terminate parental rights. But activists argue that the conviction standard is too high. The statistics they cite to are highly contested, but they argue three out of four rapes go unreported and less than 1% of all rapes lead to criminal convictions with incarceration.
Florida has been a part of this national trend. The child’s best interest is the guiding principle in establishing a parenting plan and for ordering a timesharing schedule in Florida.
Under Florida law, if a court determines by clear and convincing evidence that a child was conceived as a result of an act of sexual battery, the court must presume that termination of the father’s parental rights is in the best interest of the child if the child was conceived as a result of the unlawful sexual battery.
The action to terminate the parental rights of the rapist under the Florida Statute may be filed at any time and generally doesn’t require proof of a proof of a guilty plea or conviction in a criminal proceeding.
They Call Alabama the Crimson Tide
While the Alabama abortion law has been challenged, abortion rights activists fear it could reduce access to the procedure, forcing rape victims to bear children and possibly even have to co-parent with their attackers.
Last month, Alabama lawmakers considered a bill that addressed ending parental rights in cases of rape that result in conception, but the legislature removed that language, limiting the law to cases in which people sexually assault their children.
Some anti-abortion activists have been at the forefront of efforts to pass stronger laws. Rebecca Kiessling, an antiabortion family attorney who was conceived by rape, said the laws protect women who choose to keep their pregnancies. “Maybe they wouldn’t abort or give the child up for adoption if they knew they were protected,” she said. But laws terminating parental rights in rape cases have raised controversy.
Ned Holstein, board chair for the National Parents Organization, which advocates for shared parenting after divorce, said that allowing family courts to sever parental rights based on rape accusations is “an open invitation to fraud.”
The chair of National Parents Organization argues that even if a person is convicted of rape:
“there is merit on both sides of this issue, and we have no position on it, either way.”
For those who do raise their children conceived by rape, it’s not unheard of for the men to seek involvement in their lives. Analyn Megison, a former Florida attorney who was allegedly raped by a man she knew, fought him for years for custody of her daughter, who is now 14.
“When my case was going on, Florida had no legal protection in place a rapist father was better than no father at all.”
Eventually, the man stopped pursuing the case, after the judge said he wanted a “full evidentiary hearing about how the child was conceived,” she said.
The Washington Post article is here.