A new federal law today will award grant money to states that pass laws making it easier for victims of rape to strip their assailants of parental rights to children born out of rape, a step that a minority of women's advocates still say doesn't go far enough toward protecting women.
The new Rape Survivor Child Custody Act, signed Friday by President Obama as part of the Justice for Victims of Trafficking Act, will incentivize states to pass their own laws mandating that in cases where it is clear that a baby was born out of an unwanted sexual encounter, the victim can have the attacker's parental rights terminated.
Advocates, including bill sponsors Rep. Debbie Wasserman Schultz and Rep. Tom Marino, and members of the Rape, Abuse & Incest National Network and National Alliance to End Sexual Violence praised the signing of the bill as a step forward for protecting victims of sexual assault.
The Congresswoman quoted statistics estimating that as many as 30,000 women become pregnant from rape and decide to keep the baby each year. Those cases can end up in court where the attackers can then vie for parental rights to the child.
"Nearly two years ago, Congressman Marino and I introduced legislation that would assist women with one of the most traumatic things that they can go through: Being a victim of a rape. For thousands of women every year, rape is just the beginning of the traumatic experience," Wasserman Schultz said during a call with state-level advocates and journalists on Wednesday.
"Today, we are here to declare a major victory on behalf of those rape survivors," she said, "We are also here to say now the real battle begins at the state level to push legislatures to pass this vitally important protection for women and their children."
Wasserman Schultz and other advocates on the call said they hoped the incentive program would urge states to adopt similar laws, and said they would be working with state advocates to help start organizing for state-level bills around the country. Information provided by Wasserman Schultz's office argued that victims of rape who are forced to have continued interaction with the rapist endure traumatic psychological effects, which can make it difficult for the victim to recover and raise a healthy child.
They also said that many courts around the country are reluctant to terminate a parent's rights without an explicit statute on the books allowing it.
"My interest in this issue stemmed from my own experience a little over 10 years ago, when I was raped, became pregnant, and decided to keep and raise my daughter," Shauna Prewitt, a legal advocate who has been pushing for hte legislation, said on the call. "I did not realize I was setting myself up for custody battle with my attacker. After a long, hard fight, his parental rights were terminated, but I came away from that convinced that my protection shouldn't have been dependent on luck, but on the law."
But not all victims' advocates are pleased with the new law. Wendy Murphy, a criminal law attorney representing the victim of such a case in Massachusetts, told VICE News that the federal law might actually make it harder for victims to prove the sexual encounter was unwanted because of the language used in the bill.
Murphy said that the burden of proof should be the civil standard: preponderance of evidence. Instead, many states and the new federal law are enforcing the next-highest level of proof: clear and convincing evidence. If victims can't prove the encounter was unwanted, their attackers can get parental rights, and then can avoid paying child support as well as have access to and control over the child, she said.
"It's about money," Murphy said. "If a perpetrator can disprove or inhibit the victim from proving the unwantedness [of the sexual encounter], including simply saying, 'I thought she wanted it,' then he doesn't have to pay. Then he can get half-time custody and doesn't have to pay. That's the ultimate issue: perpetrators want some form of parental rights."
Murphy has been representing a victim who was 14-years-old when she was raped by a 20-year-old, who was then convicted. The convicted assailant was then remanded to family court to pay child support for the baby that resulted from the rape, a court decision that Murphy is still fighting in appellate court in Massachusetts.
"It's an unconscionable thing to have your own government, in the name of justice, force you into an 18-year relationship with your attacker in family court," Murphy said of her client's experience.
She also said convicted rapists should be forced to pay restitution in criminal court, not child support in family court.
"Our position since the beginning is that family court has no authority or jurisdiction over the matter," Murphy said. "I think everybody would agree the rapist caused a felony, and not a family. To my knowledge jurisdiction has never been decided by a court anywhere."
Currently 20 states and Washington D.C. have no law allowing women who may want to keep their child to restrict or terminate the parental rights of men who father a child through rape. Murphy said that she is trying to use the judicial system in Massachusetts, which does not have a law, to argue that the family court has no standing to demand child support payments because it is a criminal case.
Thirty states have a law allowing this type of termination, but 20 of them require a rape conviction. Ten states — Alaska, Colorado, Florida, Idaho, Illinois, Louisiana, Oklahoma, Pennsylvania, Vermont, and Wisconsin— allow courts to terminate a rapist's parental rights based on clear and convincing evidence of rape.
Wasserman Schultz's office said the law used the clear and convincing evidence as the standard of proof for rape due to a 1982 Supreme Court decision that found that anything lower would violate due process.
Wasserman Schultz boasted in a press call today that, as a member of the House Appropriations Committee, she was able to get $5 million included in the Criminal Justice Appropriations bill to fund the initiative. States that pass the new law will be eligible for an amount equal to up to 10 percent of what the state already receives for the Violence Against Women Act grants.
Follow Colleen Curry on Twitter: @currycolleen
Watch the VICE News documentary, "Bangladeshi Gang Rape."
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