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 OurTime.org 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.

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