With 6 Other States, Alabama Doesn't Protect Rape Victim Moms and Their Children, by Rebecca Kiessling

Alabama urgently needs to pass The Rape Survivor Child Custody Act, to terminate the parental rights of rapists and to suspend any custody or visitation.  Last week, a rape survivor mom from our network, J.C., published her story in our Save The 1 blog, "From Age 13, My Uncle Raped and Impregnated Me, But The Judge Said It's Irrelevant."  In her custody case for her two surviving children conceived in rape-incest, DeKalb County, Alabama Judge Steven Whitmire told her that their conception was irrelevant, and granted her rapist uncle visits over Christmas.  Determined to protect her children, she's sought protection from the County Sheriff's office, imploring them to file charges against him for the years of rape.

All four of her children were conceived in rape-incest -- the first two were conceived when she was under "the age of consent" in Alabama.  J.C. miscarried her first child, and her third child died at 2-1/2 years old, due to a serious genetic disorder -- Krabbe Disease -- which was the result of the genetics involved in being too closely related.  These children died because of her uncle's actions.  In Alabama, incest is a Class C felony and statutory rape with a victim under the age of 16 is 2nd degree rape -- a Class B felony.  There is no statute of limitation for rape in Alabama, so he can be prosecuted for the rape and incest.  Yet, the judge didn't see his being a child molester as relevant to parenting.

A Fox News article from Apr. 2017 highlights the fact that Alabama is only 1 of 7 states (joining Mississippi, Minnesote, North Dakota, Wyoming and New Mexico, which has NO law providing for the termination of parental rights of rapists: In 7 US states, rape victims can be legally forced to share custody of their children with their rapist fathers

 

So exactly what needs to be done in Alabama?  Under current law, Alabama Code - Section 26-18-7, there are 8 subsections listing grounds for termination of parental rights.  At the outset, the standard of judicial review is set forth:  "If the court finds from clear and convincing evidence, competent, material, and relevant in nature. . . ."

For Alabama, all that's needed is a 9th subsection stating:

(9)  That the parent raped the other parent and the minor child was conceived as a result of the rape.

Furthermore, Alabama and other states should follow Michigan's example and also provide protection in the code on custody and visitation to authorize a judge to suspend those rights. Typically, this is how the issue of a rapist seeking parental rights first comes up -- on a paternity/child support case or other family law matter.  These mothers like J.C. need immediate relief and should not have to file an actual termination of parental rights case in order to be immediately protected by the court in a family law matter.

Yes, there may be other language under current law which a judge may decide to employ in order to do what's right and suspend or terminate parental rights, but the law should be explicit so that every judge understands what is expected of them, and that the public will not tolerate awarding parental rights to rapists.

In Michigan, with the law passed the way it was, my client in the recent Sanilac County case of national attention was able to be protected.  My client's rapist molested her when she was 12 and he was 19, but during her pregnancy, he had only been convicted of "attempted" criminal sexual conduct due to a plea deal, and then years later, Judge Gregory Ross awarded him joint legal custody and parenting time without a hearing, by simply signing an order presented to him by the Prosecutor's office in a paternity case, without my client's consent.  But the judge reversed himself because of the law passed in Michigan in 2016. The Michigan case is one with a happier ending, demonstrating the importance of getting this legislation passed in every state.

Here is detailed information on the Michigan law from Right to Life of Michigan, who made this project a priority in it's legislative agenda:

 https://www.rtl.org/legislation/PendingLegislation/RapeSurvivorChildCustody.html  Because of my experience in working with so many rape victim mothers who have fought their rapist over custody and visitation issues, I emphasized the need for authorizing judges in family law matters to be able to suspend these rights upon a finding by "clear and convincing evidence" that the child was conceived in rape.  One of these Michigan companion bills passed in 2016 addresses custody and the other addresses parenting time.

Florida passed this law unanimously a few year ago, which was the impetus to Congresswoman Debbie Wasserman-Schultz co-sponsoring with Sen. Sherrod Brown the Federal Bill, The Rape Survivor Child Custody Act, signed by Pres. Obama in 2015. H.R.1257 - 114th Congress (2015-2016): Rape Survivor Child Custody Act 

The law gives an incentive to states which pass legislation with the necessary language, as follows: 

"Directs the Attorney General to make grants to states that have in place a law that allows the mother of any child that was conceived through rape to seek court-ordered termination of the parental rights of her rapist with regard to that child, which the court shall grant upon clear and convincing evidence of rape.

"Limits such a grant to: (1) an amount that is not greater than 10% of the average of the total funding of the three most recent awards a state received under the STOP Violence Against Women Formula Grant Program and the Sexual Assault Services Program; and (2) a one-year term, subject to renewal for not more than three additional years.

"Requires a state that receives such a grant to use: (1) 25% of grant funds for permissible uses under the STOP Violence Against Women Formula Grant Program, and (2) 75% of funds for permissible uses under the Sexual Assault Services Program."

Please note the Federal law says "shall grant," not "may grant," so if the court determines the child was conceived in rape, then terminating parental rights is not discretionary.  The Federal law is gender-specific -- "a law that allows the mother. . .", but all of the states where I've worked on this have passed gender-neutral bills because men get raped too -- particular cases of statutory rape.  In fact, I'm currently working with a father in Iowa who actually got a rape conviction, but the judge in the custody case said he doesn't believe in statutory rape and that for a 15 year old boy, having a naked woman in his bed was "manna from Heaven."  More to come on that story. . . .
In the Federal law, Congress made the following findings:  

(1) Men who father children through rape should be prohibited from visiting or having
custody of those children.
(2) According to several studies, it is estimated that there are between 25,000 and 32,000 rape-related pregnancies annually in the United States.
(3) A substantial number of women choose to raise their child conceived through rape
and, as a result, may face custody battles with their rapists.
(4) According to one study, 32.3 percent of women who were raped and became pregnant as a result of the rape kept their child.
(5) Another study found that, of the 73 percent of women who became pregnant as a result of a rape and carried their pregnancies to term, 64 percent raised their children.
(6) Rape is one of the most under-prosecuted serious crimes, with estimates of criminal
conviction occurring in less than 5 percent of rapes.
(7) The clear and convincing evidence standard is the most common standard for termination of parental rights among the 50 States, territories, and the District of Columbia.
(8) The Supreme Court established that the clear and convincing evidence standard
satisfies due process for allegations to terminate or restrict parental rights in Santosky v. Kramer (455 U.S. 745 (1982)).
(9) Currently only 6 States have statutes allowing rape survivors to petition for the
termination of parental rights of the rapist based on clear and convincing evidence that the child was conceived through rape.
(10) A rapist pursuing parental or custody rights forces the survivor to have continued
interaction with the rapist, which can have traumatic psychological effects on the survivor, making it more difficult for her to recover.
(11) These traumatic effects on the mother can severely negatively impact her ability to
raise a healthy child.
(12) Rapists may use the threat of pursuing custody or parental rights to coerce survivors

into not prosecuting rape, or otherwise harass, intimidate, or manipulate them.

Last year, I helped get this law introduced and passed in Iowa, Georgia, Michigan, and Indiana, and I was able to assist or consult in many other states.  I also got legislators in Brazil and in Malta to initiate this legislation, and whenever I speak in a nation's Parliament, I always try to get legislators to sponsor this bill.  It's not just an issue in the U.S., but globally of course.

A bill to terminate the parental rights of rapists is being reintroduced in Maryland this coming month.  Some states like Ohio got it wrong by requiring a rape conviction, when it's estimated that only 1% of rape victims ever see their rapist convicted as charged.  As Congress and the U.S. Supreme Court found, the proper standard in termination of parental rights cases is "clear and convincing evidence."

But we need more advocates for this law.  Please see if your state requires a rape conviction or if it uses the "clear and convincing evidence" standard.  And if you live in one of the seven states that has no law -- contact your legislator with this information and advocate to get this passed!  I've reached out to a handful of legislators in Alabama, but ideally, ever single one should be contacted.

If you have progress and a bill sponsor, please let me know!  I can certainly arrange for rape victim mothers to testify.  With my experience as a family law attorney, having litigated these cases myself or working on them with others, I can offer a lot of insight for legislators who may have questions.  

In addition, we desperately need a network of attorneys nationwide who also would be willing to handle these cases pro bono.  Right now, the mother in DeKalb County, Alabama is in need of a pro bono lawyer, as well as the father in Iowa.  Please contact me if you are able to assist now or in the future.

As someone conceived in rape myself, I can tell you that I would not have wanted the rapist to be anywhere near me growing up!  Our global network of rape survivor mothers and those conceived in rape is now nearly 550 strong, and we've seen this issue come up quite a bit.  These mothers and their children deserve to be protected.  Won't you help us?  

BIO:  Rebecca Kiessling is an international pro-life speaker, blogger and attorney,

advocating for the rights of rape victim mothers and their children.  She's the founder and president of Save The 1, and co-founder of Hope After Rape Conception.