In Some States, Rapists Have Custody Rights to Their Victims’ Children

A few lawmakers are trying to change that.

WASHINGTON, DC - JANUARY 19: Florida Representative Debbie Wasserman Schultz (D-FL) speaks onstage at the Generation Now Inaugural Youth Ball hosted by on January 19, 2013 in Washington, United States. 
National Journal
Michael Catalini
June 19, 2014, 4:34 p.m.

Some­how, rap­ists in nearly half the states and the Dis­trict of Columbia have par­ent­al rights to the chil­dren they for­cibly fathered.

It’s a start­ling real­ity — that a rap­ist can sue a vic­tim over child cus­tody rights — and one that some mem­bers of Con­gress are mount­ing a long-shot and low-pro­file le­gis­lat­ive cam­paign to try to change.

Long-shot be­cause not much bey­ond the parties’ main agenda items moves through the House or Sen­ate, let alone all the way to the pres­id­ent’s desk. And low-pro­file by design, with the le­gis­la­tion’s chief spon­sors work­ing their col­leagues be­hind closed doors, on the House floor, and in let­ters to oth­er law­makers so as not to un­in­ten­tion­ally fan any par­tis­an fires.

The le­gis­la­tion, writ­ten in the House by Demo­crat­ic Na­tion­al Com­mit­tee Chair­wo­man Debbie Wasser­man Schultz of Flor­ida and Sher­rod Brown of Ohio in the Sen­ate, doesn’t go at the prob­lem dir­ectly. In­stead, it uses $25 mil­lion of grant money over five years to in­centiv­ize states to make changes to their laws. To qual­i­fy, the states must al­low rape vic­tims to seek to ter­min­ate rap­ists’ par­ent­al rights, con­di­tioned on clear and con­vin­cing evid­ence that rape oc­curred.

So far in the House there are only 51 co­spon­sors, while in the Sen­ate there are just sev­en. In both cham­bers the bill sits in the Ju­di­ciary Com­mit­tee, with no ac­tion sched­uled.

While that tally seems weak, vic­tims’ ad­voc­ates are grat­i­fied Con­gress is pay­ing at­ten­tion at all.

“To me what it says, there are people who are in­cred­ibly ded­ic­ated and don’t care we’re in a ses­sion with a lot of lo­g­jams,” said Re­becca O’Con­nor, the vice pres­id­ent for pub­lic policy at the Rape, Ab­use, In­cest Na­tion­al Net­work. “For me it’s ac­tu­ally been an en­cour­aging pro­cess to fight for this.”

While Con­gress inches along, many states have already be­gun end­ing stat­utory re­quire­ments that call for a con­vic­tion or proof of rape bey­ond a reas­on­able doubt, which ex­plains why rap­ists could sue for cus­tody in the first place. Over the past four years, 27 states have ad­dressed rap­ists’ cus­tody rights, up from 16.

“It’s huge,” said Shauna Pre­witt, a Chica­go-based at­tor­ney and rape-vic­tim ad­voc­ate, who has be­come this is­sue’s highest-pro­file sup­port­er. “This is really my first for­ay in­to the le­gis­lat­ive arena. To go from 16 to 27 [states] is pretty amaz­ing from what I’ve heard from people. I’m im­mensely proud of the pro­gress we’ve made.”

Pre­witt was raped as an un­der­gradu­ate, be­came preg­nant as a res­ult, and chose to have her child. She then en­dured a cus­tody battle with her rap­ist, which she even­tu­ally won.

“It’s enorm­ously frus­trat­ing,” said Pre­witt. “If you can ima­gine a life­time tethered to an at­tack­er.”

The or­deal led her to at­tend Geor­getown Law School and to be­gin ad­voc­at­ing for wo­men who had sim­il­ar ex­per­i­ences. Her story was well-doc­u­mented after she wrote on the sub­ject first in 2010 in a leg­al pa­per, then in 2012 around the time then-Rep. Todd Akin made his in­fam­ous “le­git­im­ate rape” com­ments.

Of the about 25,000 to 32,000 wo­men who be­come preg­nant from rape an­nu­ally, about a third choose to have their chil­dren, ac­cord­ing to stat­ist­ics provided by House Demo­crat­ic staffers. That amounts to 5,000 to 8,000 po­ten­tial cus­tody battles, Pre­witt said.

Those battles mostly oc­cur at the state level, which ex­plains Pre­witt’s fo­cus — up to now — on the states. It also why Wasser­man Schultz and Brown wrote the le­gis­la­tion as an in­cent­ive to states.

In Wash­ing­ton par­lance, the le­gis­la­tion au­thor­izes a “plus-up” — the ad­di­tion of more money — to two already-ex­ist­ing grant pro­grams cre­ated un­der the Vi­ol­ence Against Wo­men Act. It’s a cru­cial dis­tinc­tion be­cause when the bill’s spon­sors try to per­suade their col­leagues to sign on to the bill, they can say the le­gis­la­tion cre­ates no new pro­grams, in­stead giv­ing states an in­cent­ive to change their laws, thereby se­cur­ing more grant money, ac­cord­ing to House Demo­crat­ic and Re­pub­lic­an aides.

In the House there’s a strategy un­der way to get the bill mov­ing, ac­cord­ing to aides from both parties. Wasser­man Schultz and Pennsylvania Re­pub­lic­an Rep. Tom Marino have fo­cused on reach­ing out to com­mit­tee mem­bers, se­cur­ing the back­ing of eight Re­pub­lic­ans and eight Demo­crats on the com­mit­tee. While the ul­ti­mate goal, the spon­sors say is pas­sage, for now the fo­cus is on get­ting enough back­ers to get a slot on the crowded Ju­di­ciary Com­mit­tee dock­et. Wasser­man Schultz says she’s spoken with House Ju­di­ciary Com­mit­tee Chair­man Bob Good­latte of Vir­gin­ia and is op­tim­ist­ic there could be a hear­ing or a markup.

In the Sen­ate, where Demo­crats con­trol the agenda, the pro­gress has been slow. None of the co­spon­sors sit on the Ju­di­ciary Com­mit­tee, and while Brown says he’s in talks to get the bill on the pan­el’s agenda, “we haven’t done enough work yet,” and As­sist­ant Ma­jor­ity Lead­er Dick Durbin, who is on the com­mit­tee, had yet to read the bill, he said.

Build­ing bi­par­tis­an and bicam­er­al sup­port is a cent­ral part of the strategy to move the le­gis­la­tion as well, but sup­port in both cham­bers and from both parties is hardly enough to move le­gis­la­tion these days in Con­gress. A bevy of bills, in­clud­ing an over­haul of the im­mig­ra­tion sys­tem, an en­ergy-ef­fi­ciency meas­ure, and an ex­ten­sion of un­em­ploy­ment in­sur­ance had power­ful Demo­crat­ic and Re­pub­lic­an sup­port­ers across the Cap­it­ol — and have stalled.

In truth, this le­gis­la­tion falls in­to a broad cat­egory of bills aimed at worthy causes that gen­er­ate a fair amount of con­sensus among law­makers but that nev­er make it out of the white-marble halls of the Cap­it­ol. The un­likely pas­sage of the rape-sur­viv­or bill says, un­for­tu­nately, that Con­gress has a crowded floor and com­mit­tee sched­ule, mem­bers say.

Still, Wasser­man Schultz says once more law­makers un­der­stand the is­sue ex­ists, le­gis­la­tion will ad­vance.

“Once they learn the facts and listen to the stor­ies of sur­viv­ors and fam­il­ies, I be­lieve mem­bers from both sides of the aisle and people from every polit­ic­al per­spect­ive will be sup­port­ive of ter­min­at­ing the par­ent­al rights of rap­ists,” Wasser­man Schultz said in an email. “The only people who lose in this bill are rap­ists.”

It’s a sen­ti­ment that Re­pub­lic­ans agree with. But wheth­er Con­gress can act on something that is in more than one party’s in­terest re­mains, as al­ways, an open ques­tion.

What We're Following See More »
In Dropout Speech, Santorum Endorses Rubio
3 days ago

As expected after earlier reports on Wednesday, Rick Santorum ended his presidential bid. But less expected: he threw his support to Marco Rubio. After noting he spoke with Rubio the day before for an hour, he said, “Someone who has a real understanding of the threat of ISIS, real understanding of the threat of fundamentalist Islam, and has experience, one of the things I wanted was someone who has experience in this area, and that’s why we decided to support Marco Rubio.” It doesn’t figure to help Rubio much in New Hampshire, but the Santorum nod could pay dividends down the road in southern states.

Rubio, Trump Question Obama’s Mosque Visit
3 days ago

President Obama’s decision to visit a mosque in Baltimore today was never going to be completely uncontroversial. And Donald Trump and Marco Rubio proved it. “Maybe he feels comfortable there,” Trump told interviewer Greta van Susteren on Fox News. “There are a lot of places he can go, and he chose a mosque.” And in New Hampshire, Rubio said of Obama, “Always pitting people against each other. Always. Look at today – he gave a speech at a mosque. Oh, you know, basically implying that America is discriminating against Muslims.”

Cruz Must Max Out on Evangelical Support through Early March
3 days ago

For Ted Cruz, a strong showing in New Hampshire would be nice, but not necessary. That’s because evangelical voters only make up 21% of the Granite State’s population. “But from the February 20 South Carolina primary through March 15, there are nine states (South Carolina, Alabama, Arkansas, Georgia, Oklahoma, Tennessee, Kentucky, Mississippi, and North Carolina) with an estimated white-Evangelical percentage of the GOP electorate over 60 percent, and another four (Texas, Kansas, Louisiana, and Missouri) that come in over 50 percent.” But after that, he better be in the catbird’s seat, because only four smaller states remain with evangelical voter majorities.

Rubio Now Winning the ‘Endorsement Primary’
3 days ago

Since his strong third-place finish in Iowa, Marco Rubio has won endorsement by two sitting senators and two congressmen, putting him in the lead for the first time of FiveThirtyEight‘s Endorsement Tracker. “Some politicians had put early support behind Jeb Bush — he had led [their] list since August — but since January the only new endorsement he has received was from former presidential candidate Sen. Lindsey Graham.” Meanwhile, the New York Times reports that fueled by resentment, “members of the Bush and Christie campaigns have communicated about their mutual desire to halt … Rubio’s rise in the polls.”

Carly Fiorina Will Not Be Allowed to Debate on Saturday
2 days ago

ABC News has announced the criteria for Saturday’s Republican debate, and that means Carly Fiorina won’t be a part of it. The network is demanding candidates have “a top-three finish in Iowa, a top-six standing in an average of recent New Hampshire polls or a top-six placement in national polls in order for candidates to qualify.” And there will be no “happy hour” undercard debate this time. “So that means no Fiorina vs. Jim Gilmore showdown earlier in the evening for the most ardent of campaign 2016 junkies.