Parental Rights for Rapists?

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.

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.