Analyn Megison could remember smelling her own blood as she fought off her attacker. The law school graduate was 29 years old when she was beaten and raped until she fell unconscious. The attack, committed in Baton Rouge, Louisiana in 2003, was just the beginning of the assault.
Days later, Megison discovered she was pregnant. People she turned to for help immediately pressured her to abort or put her baby up for adoption. She resisted, and her daughter is now 10 years old. For Megison, being a mother has breathed love and optimism back into her life, helping her to move forward from that harrowing night.
But a few years ago in Florida, where Megison and her daughter moved after Hurricane Katrina ravaged Louisiana in 2005, the now 40-year-old mother was forced to relive the nightmare. Her rapist had tracked her down and filed for joint custody of her child. At the time the case began in 2010, Florida was among a number of states that had no laws stopping even convicted rapists from receiving parental rights of the children born out of their crime.
"It can't get any more intimidating than somebody trying to take or harm, or do something to your child," Megison told VICE News. "That's more difficult than facing any harm to yourself for many parents. You can chew me up and cut me into bits and pieces, but not my child."
After two years spent in and out of courtrooms, her rapist eventually dropped his custody case. Megison has since married twice and had two more children. She also advocates against domestic and sexual abuse as an attorney and co-founder of the non-profit Hope After Rape Conception (HARC). Her work there pushed the state to change their laws in June 2014, helping rape survivors retain full custody of their children. She is now fighting to get similar legislation passed in other states and at the federal level.
The situation for rape survivors has moved fast since 2012, when more than two-thirds of US states had no rape custody laws in place whatsoever. Today, that number has shrunk to 17 states and DC, according to sexual rights advocacy group the Rape Abuse and Incest National Network (RAINN).
Of the 33 states that do provide laws to terminate a rapist's parental rights, nearly three quarters require a conviction — an understandable requirement, but problematic because less than half of survivors report their rapes, and conviction rates are low. Only about 4 percent of defendants who go to trial for felony rape are sentenced, and only 3 percent will spend a single day in jail, according to RAINN.
'It can't get anymore intimidating than somebody trying to take or harm or trying to do something to your child.'
For the estimated 25,000 to 32,000 survivors who become pregnant from rape each year, the nationwide spread of laws that stop rapists seeking custody is a welcome shift. Recent high profile cases — such as that of Cleveland kidnapper Ariel Castro, who held three women prisoner in his home for years and fathered a child with one victim — have also helped elicit more awareness and push laws through state legislatures. But it's still not enough, advocates say.
Rebecca Kiessling, a Michigan family lawyer and fellow HARC board member who was conceived out of rape, told VICE News she has dealt with several cases where rape survivors have lost partial custody to their attackers over the years. This is possible, she said, because of deeply held societal assumptions of how a woman would or should act if she was a "real" rape victim — ideas which have crept into the judicial system.
"Most people assume that a 'real' rape victim would have had an abortion," Kiessling said. "I dealt with so many women who chose life for their child, but then they weren't protected."
The system also failed the children, she added. "We need to make sure they're protected, that they don't have to be afraid. I know that I wouldn't have wanted to have anything to do with my biological father."
Holly Turner, whose name has been changed to protect her privacy, was a 14-year-old Catholic middle school student in Massachusetts in 2009 when she was raped, became pregnant, and gave birth to her baby. The rapist, who was 20 at the time of the attack, pleaded guilty and was sentenced to 16 years probation in 2011. As part of his probation conditions, the attacker was ordered by a state criminal judge to declare paternity, pay child support, and comply with any family court proceedings with Turner until her child turned 18.
Faced with 16 years of being tethered to her rapist, and potentially forced to make joint decisions — involving anything from schooling to the child's religious upbringing — Turner was flung into a situation that would have been terrifying for any woman, let alone a girl still legally a child herself. Turner risked losing custody of her baby if she refused to comply with family court proceedings. On the other hand, she would have to work her life around future court dates with her rapist and spend thousands of dollars she didn't have in legal fees to fight the decision.
"It is a horrible feeling I can't really describe," she told VICE News. "The proceedings are traumatic. It brings up memories of the crime every time we have to go to court. I'm scared that the justice system is not protecting me or my child."
Turner's pro bono lawyer, Wendy Murphy, who co-directs the Women's and Children's Advocacy Project at the Center for Law and Social Responsibility in Boston, later filed a petition on her behalf, asking that the judge's conditions be overturned.
"This is not a family, it's a felony. It's barbaric to force a rape victim to be in court with her perpetrator. It's bad enough for one day, let alone years," Murphy told VICE News. "I'm very nervous for the future of rape victims going forward."
Murphy said that before the judge's ruling, Turner's attacker had no interest in fathering the child, and fought his biological connection. But after being ordered to pay $110 a week in child support, her attacker filed for child visitation rights, telling Turner he would ditch his custody request if she abandoned her rape allegations.
"It's a strategy to exact retribution," Kiessling said of this disturbingly common occurrence. "Most of the time, unless there's a child support case or a criminal prosecution, [the rapist] is not going to bother her, unless he's so obsessed, which also happens. It's a power control issue."
In the summer of 2013, the country was shocked when news broke that the convicted rapist Castro — who has since committed suicide — had requested visitation rights from jail to the daughter he fathered with Amanda Berry, one of three women he raped and tortured in his basement for more than a decade in Cleveland.
Public outrage swiftly translated into action. An Ohio judge immediately denied Castro visitation rights, and not long afterward, Congresswoman Debbie Wasserman Schultz (D-FL) introduced the Rape Survivor Child Custody Act to Congress at the federal level. The bill is based on the model laws HARC helped draft, the likes of which have already been installed in several states, including Wasserman Schultz's home state of Florida.
In June, US Senators Sherrod Brown (D-Ohio) and Kelly Ayotte (R-NH) filed a companion bill to the House proposal in the Senate, which has been inching slowly through the parliamentary legislative process. Government transparency website GovTrack predicts the acts have only a 12 percent chance of passing the House and a 3 percent chance of getting through the Senate.
Both bills feature a crucial clause that would lower the evidence standards required in court, so that instead of having to prove "beyond a reasonable doubt," survivors could instead provide "clear and convincing evidence" that the child was conceived through rape. Currently only six states allow the termination of a rapist's parental rights based on the lesser standard.
The "clear and convincing" evidence standard already applies to most cases where termination of parental rights is sought — in cases of abuse or neglect, for example. Lawyers frequently point to the fact that parents in these cases are not held to the burdensome and nearly insurmountable criminal standard. Why, then, are rape custody cases set apart?
"By requiring a criminal rape conviction, you're actually making a more stringent standard to be applied to rape victims and their children, which is so unfair," said Kiessling. "If you have a rape conviction, it should automatically be a termination of parental rights. Without a rape conviction then it should be clear and convincing evidence, which is still a high standard — the same standard used in all other parental unfitness cases."
The iniquity of rape custody legislation in many states fails to provide protection for the majority of raped women, Kiessling said. Even in areas that have adopted legislation, implementation remains a problem. State governments have been slow to roll out training on the new laws, and there is no way to earmark real progress, according to Megison.
"[The law] is barely a year old and so it's difficult to even track how it's being applied here in Florida," said Megison. "There's no way to determine how many ongoing court cases or new ones have been affected."
Megison also added she was surprised to learn that some advocates, social workers or child protection service caseworkers she met weren't even aware of the new rules.
'By requiring a criminal rape conviction, you're actually making a more stringent standard to be applied to rape victims and their children, which is so unfair.'
A few months ago, in a family court outside Boston, Turner won her case to terminate all her rapist's child visitation rights. But she still faces an appeal questioning whether the court should have taken up the decision on the issue in the first place. The case raises questions of whether the justice system, and judges acting at their discretion, are equipped with enough understanding of the relevant psychological factors to make such life-changing decisions for those involved in rape custody cases. The primary goal should be to prevent further harm to the rape survivor and child in these circumstances. But that is not always the outcome.
Complications in cases are compounded by the social prejudices that pervade the legal system, said Kiessling. To many, a woman choosing to keep a baby born from rape is unbelievable. If a woman doesn't abhor or resent what people often refer to as the "rapist's child," and say she wants to abort the pregnancy, then her story is often doubted. Such assumptions are deeply ingrained even in the psyche of many pro-life and pro-choice proponents, Kiessling said
"There's a prejudice against these women that's cast out on whether their story is true, because the rhetoric is that this is the rapist's baby, not the rape victim's baby," she added.
These reactions are part of the reason why many survivors fail to speak out about rape — one of the most under-reported and under-prosecuted serious crimes, Kiessling said. Instead, many women have reasonable expectations that in court they will experience harsh judgment and possible harassment from their attackers, defense attorneys, judges, and jurors.
The prominence of paternity and patrilineage is also evident in our legal code, said Murphy. In Turner's case, the judge "gifted" the privilege of fatherhood to someone who was not only initially allergic to the idea, but was also, in Murphy's opinion, undeserving of the title. The court's decision certainly didn't address the wishes and best interests of the survivor and child, she said.
"Our laws were developed along the lines of, if you are the biological source of semen, you are the father," said Murphy. "A man's biology should not determine his fatherhood. Fatherhood should mean more than ejaculation."
Follow Liz Fields on Twitter: @lianzifields