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