Pennsylvania Tightens Loophole in Rapist-Fathers’ Rights Law

A bill that would amend Pennsylvania law to tighten—but not close—a loophole enabling rapist-fathers to obtain custody and visitation rights over a child conceived in rape unanimously passed the Pennsylvania house.

Stack noted that though the state’s governor has vowed to veto the measure should the state senate take it up and pass the anti-choice bill, the voting margins in the house were “close to the two-thirds margin needed to override a gubernatorial veto.” Republicans hold huge majorities in both chambers of the Pennsylvania legislature. Pennsylvania Capitol via Shutterstock

A bill that would amend Pennsylvania law to tighten—but not close—a loophole enabling rapist-fathers to obtain custody and visitation rights over a child conceived in rape unanimously passed the Pennsylvania house.

Previous versions of a bill addressing rapist-father custody and visitation rights failed twice over the past three years, partly due to opposition from “special-interest groups” over the language of the bill being gender-specific (the language assumed the rapist is a man and the person with custody of the child conceived in rape was a woman). In response, the bill’s language was revised to be gender-neutral.

The second part of the bill, sponsored by Rep. Angel Cruz (D-Philadelphia), enables a rape survivor who bears a child conceived in assault to seek financial support from the assailant. Under current law, a rape survivor who successfully petitions a judge to terminate parental rights of her assailant automatically surrenders the right to financial support. This provision was initially addressed in a separate bill sponsored by Rep. Mike Schlossberg (D-Lehigh), but that initiative was folded into Cruz’s bill.

Two years ago, when this issue first came to light, more than two-thirds of states did not have any laws restricting custody and visitation privileges of rapists over the children conceived through the assault. Currently, 26 states have some protections for women who become mothers through rape.

Rapists have taken advantage of the law’s favor by using their parental rights as leverage to coerce their victims into dropping charges, or withdrawing testimony against them at trial. Rapist-father rights have also interfered with a mother’s choice to place an infant up for adoption, since one parent needs the approval of the other biological parent.

The rights of rapist-parents over their children and, by extension, over the victims who survived their violence was generally ignored until 2012, when Chicago-based attorney Shauna Prewitt wrote about the issue in response to Todd Akin’s notorious “legitimate rape” comment. (“If it’s a legitimate rape,” the former Missouri representative said, “the female body has ways to try to shut the whole thing down.”)

Though false claims that rape is less likely to result in pregnancy than consensual sex furthers the political agenda of anti-choice lawmakers seeking to refuse rape exceptions in abortion restrictions, such claims are not grounded in science. It’s estimated that between 25,000 to 32,000 women become pregnant through rape each year.

As Prewitt noted in “Giving Birth to a ‘Rapist’s Child’: A Discussion and Analysis of the Limited Legal Protections Afforded to Women Who Become Mothers Through Rape,” an article published in the Georgetown Law Journal, between one-third and two-thirds of women impregnated as a result of rape choose to carry those pregnancies to term.

From the paper:

In response [to women impregnated by rape], many states have passed special laws, devised streamlined procedures, or both, to aid pregnant women who seek abortions or wish to place their rape-conceived children for adoption. However, few states have passed laws to aid the large numbers of raped women who choose to raise their rape-conceived children.

Prewitt pursued a legal career explicitly to work on this issue, which she became aware of through personal experience; she became pregnant as the result of being raped while a college student. Her report of a near-total lack of support for women who choose to carry rape-conceived pregnancies to term was particularly stark in contrast to the unprecedented number of anti-choice bills proposed in recent years, including those that would prohibit private insurance from covering abortion for rape victims.

Relative to most states, Pennsylvania has been praised as “one of the more protective states regarding rapist-father rights, though experts such as Harry Gruener, associate professor of law at the University of Pittsburgh, say that claim has been overstated.

Though a parent being charged and/or convicted of any crime, including rape, has generally always been a factor a family court judge’s determination of best interests of a child, Pennsylvania statute only codified that consideration in a revised custody statute that took effect in January 2011.

Under that law, rape was added to an expanded list of 30 criminal convictions courts may consider in determining custody, Gruener told Rewire.

As attorney Todd Spivak has pointed out in an editorial for the Pittsburgh Post-Gazette, current Pennsylvania law simply allows a rape victim to request that a judge sever the parental rights of her rapist.

It does, however, make modest steps toward tightening, but not closing, the loophole wherein a convicted rapist could obtain custody or visitation rights to the child conceived in the assault.

From the bill:

If a parent who is a victim of any of the offenses set forth in this paragraph objects, no court shall award any type of custody set forth in section 5323 (relating to award of custody) to the other parent of a child conceived as a result of any of the following offenses for which the other parent has been convicted.

It then lists five rape-related offenses.

Cruz’s bill is not a ban on awarding child custody to fathers convicted of rape. It still preserves judicial discretion, though it adds a new requirement that such a custody decision requires the consent of the child “of suitable age.”

The new language echoes Pennsylvania’s child custody statute as applied when one parent has been convicted of murder.

While it may seem common sense not to award custody or visitation to a convicted rapist—a decision one Pennsylvania judge incredulously called “stupid”—Rep. Cruz has stated that such a custody decision recently happened to a constituent in his district, which prompted his support of the bill. (His office declined to discuss the specific case.)

The second part of Cruz’s bill will enable a rape survivor to seek financial child support from her rapist. This provision creates an explicit exception to current law. By default, terminating a person’s parental rights simultaneously terminates their parental obligations.

Shauna Prewitt told Rewire that in her view, there has been significant progress in many states on this issue since her 2012 report.

“Additionally, a federal bill is slowly making its way through the House and Senate,” said Prewitt.

The Pennsylvania bill now heads to the state senate, where it will need to pass before heading to the governor’s desk to be signed into law.