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.
This article appears in the June 20, 2014 edition of NJ Daily.