Parental Rights for Rapists?

Sara Ainsworth

For the thousands of women in the United States who become pregnant and bear children as a result of rape each year, the need to ensure that they can raise their children without further threat from the rapist is a critical - and largely unacknowledged - concern.

Women's rights advocates have paid little attention to what happens to women who bear children as a result of rape, and whether they are able to raise those children without threat from the men who raped them. But for the thousands of women in the United States who become pregnant and bear children as a result of rape each year, the need to ensure that they can raise their children without further threat from the rapist is a critical – and largely unacknowledged – concern.

Why the Inattention?

There may be several reasons for this inattention. Some may assume that this is a rare event, or be unaware that rapists may have parental rights. Some women raising children born of rape may want to keep their children's provenance a secret. Regardless, the result has been that women in this situation typically suffer in isolation, with little coordinated women's rights advocacy to champion their cause.

Unfortunately, this has resulted in the passage of paternity laws in every state that rarely address the concerns of mothers who wish to raise their children born of rape. The ultimate effect of these family laws is to ensure, in most situations, that a rapist has parental rights, thereby diminishing the significance of rape and ignoring the threat the rapist poses to the mother and the child.

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When Rape Survivors Decide to Parent

To illustrate the problem, imagine Maria, a young adult woman who becomes pregnant as a result of a rape – one of approximately 32,000 women who become pregnant in the United States as a result of rape each year. Of those women, about half decide to terminate their pregnancies, rather than cope with the psychological torment of going through the pregnancy. Many others, for just as legitimate reasons, decide to carry the pregnancies to term and have babies. Maria decides not to terminate the pregnancy. And, like the vast majority of women who make this decision, Maria keeps her baby rather than give the child up for adoption.

Once Maria has the child, the rapist may gain parental rights depending on his relation to Maria. If the rapist is a stranger to Maria and risks implicating himself criminally, he is probably unlikely to pursue parental rights in the child. But most rapes are perpetrated by someone the victim knows. If the rapist is Maria's abusive husband, his parental rights are presumed upon the birth of the child. If he is an acquaintance or a former boyfriend, he may learn of the child and file a paternity action to establish his legal parenthood. Or, if Maria receives public assistance benefits, the state will pursue his paternity, unless she is lucky enough both to live in a state that exempts victims of violence from participating in such paternity cases, and she is actually informed of her right to exercise that option. Under most state's laws, the rapist's biological connection to the child, regardless of its provenance – even, in many states, in the case of incest – is sufficient to gain parental rights.

At the very least, the attempt to gain legal recognition of parental rights enables the rapist to bring Maria in to court, in which she will be forced either to relive the rape in her efforts to seek justice, or to pretend it didn't happen rather than risk a judicial violation of her privacy. And if a rapist secures parental rights, generally, parental rights guarantee a lifetime of ongoing contact between the mother and the rapist – including visitation rights, child support, and even ongoing legal disputes over custody.

And what if Maria proves to a court's satisfaction that the child was a result of a rape? Many state laws make no provision for such a situation and thus the court may be obligated to legally recognize the rapist's paternity.

How Should Advocates for Women's Reproductive Freedom Respond?

I do not call for a simple legal solution, but exhort our community to recognize the problem and began working towards a comprehensive approach.

We must recognize that this is a complex issue: women raising children born of rape are not identical, and neither are their concerns. One woman – raped by an acquaintance she barely knew – raised her child to adulthood without interference, and decided when her son was grown to tell him the story of his father, a secret she had kept his entire life. Another survivor, a 14-year-old girl, decided to give up her baby for adoption. She was required by law to give notice of the adoption to the rapist, an adult man. While she was permitted by a court to give up her rights to the child, the rapist retained his and then sought child support payments from her. Women raped by abusive husbands have children whose legal relationship to their biological fathers is presumed by law and can only be challenged by affirmative legal action on the part of the mother. Another survivor, who gave birth to twins after a date rape, raised them peacefully with her intimate partner until they were five years old, at which time the rapist learned of their existence and filed a lawsuit to establish his paternity and gain visitation rights, and attempted to use the mother's sexual orientation against her in the legal proceedings. Women who are trafficked, whether for labor, sex work, or for marriage, who have children resulting from their sexual exploitation may face immigration obstacles that force them to remain in dangerous situations or risk losing their children.

Another complication is the well-known judicial bias against rape victims and the difficulty of "proving" a rape charge in the context of either the civil or criminal justice systems. Nationally, less than 20 percent of rape survivors report the assaults to law enforcement, but those few states that do permit courts to deny parental rights to a rapist tend to grant this exception only for cases in which the putative father is convicted of rape, and make no provision for addressing the vast majority of rapes that are not reported or prosecuted.

Interacting Rights

But the rape survivor's perspective should not be our only consideration. Inherent in this discussion is the constitutional nature of parental rights, and whether and how those rights interact for both the mother who has been raped and the rapist who is the progenitor of the child. It is especially important to recognize the demonstrated tendency of the legal system to hold the parental rights of men of color and poor men in lesser esteem – and, for that matter, its greater willingness to view men of color as rapists and women of color as unlikely victims. A case like Pena v. Mattox, in which a Hispanic 19-year-old man lost the right even to notice of his offspring's adoption when convicted of statutory rape of his 15-year-old girlfriend, is alarming not only because of the obvious injustice in the situation but for the way the decision ignores the racist undertones of the actions taken against the father and how it renders the mother entirely faceless and voiceless. In the wake of that decision, commentators gave little or no attention to the situation of a mother raising a child born of rape. It is critical for us to consider a legal framework that grants justice for the mother but does not result in the perpetuation of other injustices.

For this very reason, the child's interests must also be considered. A child's human right to a life free of violence is of paramount concern. But denying parentage to a biological father eliminates the child's right to financial support from that parent, ensures that the child is not recognized for inheritance purposes, and may deny that child knowledge of his or her genetic history. Advocates for women's rights should consider and address the child's concerns while developing a response that ensures the humanity and safety of the mother.

An Unlikely Alliance?

Finally, advocates for reproductive freedom may struggle – or see an opportunity – with the realization that on this issue, we may find allies in the fervently anti-choice. The Maryland State Legislature is considering a bill sponsored by pro-choice Democrats that would permit a court to refuse to recognize a biological father's parental rights if the mother shows by clear and convincing evidence that the child was born of rape. This bill is supported by the anti-choice Maryland Right to Life. As that organization proclaims on its website: "[w]omen who choose childbirth when rape results in a pregnancy should be able to do so without fearing the rapist's involvement in decisions regarding the child's welfare. These women need care and support, not the additional stress and burden of a rapist's paternity rights."

While I predict that we will come to radically different conclusions about how to approach this problem, on this, for once, we agree.

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (R-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

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Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.