Nel's New Day

August 21, 2013

Rapists May Get Visitation, Custody Rights

Rape should not be a reason for a woman to have an abortion, according to many conservatives and rigid religions. What happens if a girl or woman follows the conservative position to save the fetus’s life and keep the baby after it is born? In some states, the rapist can get legal paternity rights over the child born from the rape.

In the Commonwealth of Massachusetts, one woman is fighting her rapist over this. After H.T. was raped, she lived with her mother, who had to quit her job to care for H.T.’s baby. Both H.T. and her mother have repeated told state officials that they want no contact for themselves and for the child with the rapist. H.T. asked during the criminal request for the rapist to pay criminal restitution instead of child support, thereby releasing her from any legal proceedings concerning him, but the sentencing judge refused. When she asked the Supreme Judicial Court for Massachusetts to review that judge’s decision, the one justice found that she lacked standing to challenge the judge’s order. H.T. would have to appeal the judge’s order in family court.

If H.T. doesn’t participate in the court proceedings for the 16 years, she can lose custody of the child. At the same time, she has to pay legal fees for the court proceedings. For 16 years, she lives under the threat of her rapist gaining parental rights if he tries to do this in order to avoid child support orders.

A year ago, H.T. and her mother found out that the rapist was trying to get visitation rights with the two-year-old child. He said that he would withdraw the request if he didn’t have to pay the $110-per-week child support. The complaint declares:

“An estimated 35,000 babies are born from rape every year. No state court has ever issued an order such as the one at issue here. Granting the plaintiff’s requested relief will inhibit state court judges in Massachusetts and elsewhere from similarly depriving rape victims of their liberty, personal autonomy and due process.”

Shauna Prewitt, a lawyer and rape survivor, has reported that 31 states allow rapists to sue for visitation rights. Shortly after her daughter’s birth in 2005 when Prewitt was pursuing charges against her accused rapist, he served her with papers demanding custody of their daughter. Missouri did not allow Prewitt to directly fight the custody request; the court needed to file a petition independently. Missouri has a law allowing the court to terminate parental rights in rape cases upon conviction. Statistics indicate that between one-third and two-thirds of women impregnated through rape carry the fetus to full term and keep the child.

As many as 91 percent of rapes are not prosecuted, and of those, only about half lead to a felony conviction. In the 19 states with laws addressing custody of rape-conceived children, 13 demand proof of conviction to waive the rapist’s parental rights. Two states have provisions that apply only if the victim is a minor and another one, only if the minor is a stepchild or adopted child of the rapist. Another three don’t deal with custody but restrict parental rights of a father or mother who sexually abused the other parent.

A Maryland state senator tried to get a law passed that used preponderance of evidence, when a jury needs to be at least 51 percent sure that the rape occurred. Thus far, the bill has failed despite testimony from several women about their continued harassment after rapists asserted parental rights.

Oregon passed a conviction-based law in 2011. Indiana passed a bill through the Senate, but it was modified in the House to authorize an advisory committee to study the issue first where it was dropped.

Last January, State Rep. Cathrynn Brown (R) proposed a bill in New Mexico that would require rape victims to carry their pregnancies to term during their sexual assault trials or face charges of “tampering with evidence.”  

HB 206 stated that both the pregnant woman and her doctor would be charged with a felong punishable by up to three years in state prison by “procuring or facilitating an abortion.” After national recognition—and embarrassment for the proposed bill—Brown said that she didn’t mean that the woman and the doctor would be guilty, that the bill was “poorly written.”

The proposed bill follows a year of GOP legislators, both federal and state, trying to add the term “forcible” to rape in order for raped women to get assistance. For example, New Mexico Gov. Susana Martinez (R) removed the term “forcible rape” from updates to the state’s Child Care Assistance Policy under conditions for those seeking assistance—again after the mandate hit the national media. Martinez claimed that she used the term because the same language is in childcare regulations in Oklahoma, West Virginia, Maryland, and Maine. The New Mexico policy is not clear about whether women need to seek child support from their rapists because getting child care assistance.

Statistics indicate that between one-third and two-thirds of women impregnated through rape carry the fetus to full term and keep the child. The GOP wants to prevent all abortions, yet they refuse to pass laws that will protect the women who choose to not get an abortion and keep their children. Conservatives care only for fetuses–nothing for women and children.


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