Speaking of Women's Rights: 03/16

Tuesday, March 1, 2016

The Never-Ending Nightmare:
Why We Must Ban Rapists from Seeking Parental Rights Over Children Conceived by Their Crime

By Martha Burwell

Your hands are sweating. Your heart is pounding. You pull your jacket closer around you, against the late winter breeze, as you focus on climbing the stairs, one at a time. Right foot. Left foot. Right foot. Left foot.

Every atom in your body is screaming for you to turn and run, to get out of this place. But you can’t. You must keep going. Because in order to keep your child safe, you must finish walking up these stairs and go into the courtroom, where a judge will decide if the father of the child can have visitation, or even—you shudder at the thought—custody.

But this case is different from most custody battles. Because in this case, your child was conceived through rape. And the rapist is waiting for you in the courtroom. 

Unfortunately, with our current laws, dealing with the legal aftermath of rape can be extremely re-traumatizing for the victim. After the horrific violence of the act itself, there’s the rape kit, the police report, filing paperwork, going to court—all part of a lengthy, grating process of getting the rapist convicted, which happens only in 2% of rapes.

And what if the unthinkable happens—what if the woman gets pregnant? (Yes, women can and do get pregnant from rape, despite what dangerously misinformed male politicians may say).

Currently, if a woman keeps the child, which women decide to do in about 30% of pregnancies caused by rape, the rapist may petition for parental rights, depending on which state they're in. Yes, you read that right. The fact that the child is a result of rape is not grounds for denying paternity rights such as visitation, or even custody, if he can prove he is the biological father. This is true in many U.S. states.

And one of those states is Washington.

Surely, the mother can block the rapist from obtaining these parental rights, you’d think. Technically? Maybe. But it’s extremely difficult, and can only be done through an invasive and often expensive legal battle. And stringent conditions must be met, including the rapist being *convicted* of rape (remember how rare that is?). 

It’s clear to see how damaging this would be to both the child and the mother, having to deal with draining legal work, repeatedly discussing the rape, and seeing the rapist in court. And of course, 98% of cases wouldn’t even meet the requirement of having the perpetrator convicted of rape.

Additionally, with current laws, rapists can use the potential of custody or visitation as a legal bartering chip, pushing the mother to give away other rights in order to protect her child:

“When no law prohibits a rapist from exercising these [parental] rights, a woman may feel forced to bargain away her legal rights to a criminal trial in exchange for the rapist dropping the bid to have access to her child.” Not to mention that rapists may use the courtroom as a way to continue to harass their victims, emotionally and psychologically.

Some might argue that the woman doesn’t have to tell the rapist that she’s having his child. But unfortunately, most women are raped by someone they know. They may have been dating the rapist; they may share mutual friends or family. Also, “some of these men discover they are fathers only when the state targets them for child support, as single mothers must identify them to qualify for government assistance. This prompts some to file a lawsuit of their own.”

It’s obvious that this setup is far from ideal for rape victims. But what should we do about it?

Legal Voice has a solution.

In the 2014 session of the Washington State Legislature, Legal Voice advocated for two bills (​SB 6364 / HB 2559) that would have made it much more difficult for rapists to petition for parental rights. These bills mirrored similar laws passed in several other states—rather than requiring a conviction of rape for this legal barrier to take effect, the law would have required “clear and convincing evidence” that a rape had occurred. This is the same standard family courts use to decide whether a child has been abused or neglected. Since most rapes are not reported to the criminal justice system and those that are rarely result in conviction, this piece is key.

Not only would this bill prevent rapists from gaining parental rights over the child, but it also would prevent dragging rape survivors through traumatic and expensive court cases. While the bills did not pass the legislature in 2014, Legal Voice will revisit this issue for its 2017 legislative priorities.

When a woman has been raped, is unintentionally pregnant, and makes the extremely challenging decision to keep the unexpected child, the last thing she needs to worry about is going to court over the custody of that child.

Let’s make sure that she doesn’t have to.

Martha Burwell is a gender equity consultant, researcher, and writer based in Seattle. You can see her explorations into intersectional feminist topics on her blog EqualiSea: The pulse on gender equity in Seattle and beyond, or say hello on twitter @EqualiSea.

Photo courtesy of Donne Ray Jones | Licensed under CC by 2.0