In seven states in the USA. rapists can sue victims for custody of any children concieved by the assault. A conviction is needed to anull rapists’ parental rights. The problem is that most rapes don’t even go to court. Even in the minority of cases where a conviction is secured, these are often the result of plea deals, meaning that the conviction is for less serious sexual assault or for physical assault. Neither will prevent a rapist from suing for child custody.
So victims are failed by the law twice. Their rapist may receive no sentence, while the victim and her innocent child are tied to the rapist for 18 years. The first question we’re likely to ask is, why on earth would the law do this to people? As a feminist it’s tempting to fall back on “patriarchy!”, but although most legal systems were created in patriarchies and are inherently stacked against women- especially in regard to sex crimes- a more nuanced approach is needed. If patriarchy was the sole cause, American law would not remove parental rights in cases of rape convictions, nor would most states have a lower threshold for withholding custody from rapists. The Obama administration incentivised states to amend laws which gave rapists parental rights; it is, unsurprisingly, the Trump administration which is removing them. While at first glance this situation appears baffling- almost deliberately engineered to punish rape victims and their children- it’s important to understand the legal principles behind it, as well as the wider societal context.
First, let’s look at the law. (I didn’t study American law so this is going to be a very brief overview, not a JD level discussion.)
The legal context of parental rights arising from non-consensual conception
Statutory rape, parental rights and parental responsibility
If we look at how US law treats victims of statutory rape, we can see that victims of all genders are subject to the same parental rights and responsibilities. They usually can’t use their non-consent to avoid paying child support to their statutory rapist. Adults who have children by underage minors cannot have the child removed from their custody on that basis. This is as true in Britain; the only grounds for the court to grant the removal of a child from its parent are those of child protection (abuse or neglect). Therefore, statutory rapists enjoy shared or even sole custody.
Nonconsensual insemination and parental responsibility
Conception without consent doesn’t only occur through rape or (arguably) statutory rape. It also occurs when gametes are used for conception without the consent of the person from whom they are taken. One British man’s ex-wife defrauded a sperm bank into using his frozen sperm to conceive two children without his knowledge. He was ordered to pay child support. By contrast, egg and sperm donors are exempt from parental responsibility so they don’t have to pay child support. However, they’re also unable to exercise parental rights. In Scots law, unofficial egg and sperm donors have been granted parental rights even against the legal parents’ wishes. Though a surrogate who “steals” the mother’s child is regarded as the legal mother in Scotland, the biological mother is granted shared custody. The takeaway here is that only an official, legally sanctioned pre-conception contract can nullify parental rights. Hence, the unofficial donors could still have shared custody.
Biological parenthood = legal parenthood
So, what does statutory rape, child maintenance and sperm donation have to do with rape survivors being forced to share custody with their rapists? My point is that the law is strict on the biological connection creating legal rights and responsibilities. Note that one can’t exist without the other; donors don’t have responsibilities but they don’t have any parental rights either. In many US states, child maintenance and custody are processed together in a single case. Sadly, this resulted in a woman who’d been abducted and raped at 12 having to share her child’s custody with her rapist, her address disclosed to him and being ordered to move to the state where her rapist lived. (He made a plea deal and was convicted of attempted sexual assault before DNA evidence could be taken from the baby to prove it was rape, thereby avoiding a 25 year minimum sentence and serving just six months). She had a child support suit filed by the state on her behalf after she applied for welfare, and a child custody order routinely goes along with child support suits. (The judge eventually set the ruling aside because the rapist had not requested custody. Survivors whose rapists want custody are not so lucky.)
A paper examining nonconsensual insemination and statutory rape explains that “Thus, child support is essentially a form of strict liability with the justification being that the child is an innocent party, and, therefore, it is the child’s interests and welfare that the court must look to in adjudicating support.” Change “support” to “custody” and you have the legal philosophy behind forcing rape victims to share custody with their rapists.
Therefore the issue may be more to do with children’s rights than excessive protection of fathers’ parental rights.
My argument would be that non-statutory rape/coercion/exploitation/CSA and CSE should be treated differently from statutory rape due to the harm it causes to the victim parent. (Personally I don’t think statutory rapists should be entitled to child support, but that’s a different issue). However, as few would disagree that survivors shouldn’t be forced to share custody with rapists, and as US law recognises that this is wrong (rape convictions anull parental rights and most states do not require a conviction to anull rights), I won’t elaborate on this. What’s pertinent is that treating rape differently from statutory rape regarding custody is not without its problems. Distinguishing statutory rape (merely sex with a person who only legally can’t consent) from CSE (sex trafficking, grooming, rape) or coercion (e.g. grooming, threats, anything not ‘bad enough’ to be rape under the law) may be difficult. Some adults look back fondly on their statutory rape and refuse to call it abuse, while others were happy at the time but later regret it when they realise they were taken advantage of. It’s easy to see why laws in seven US states require a conviction of (non statutory) rape- it’s easier!
And these issues- the complexity of abusive and illegal relationships, and the strict legal principle of the biological connection creating legal rights- lead us onto the second part of this article: the social context.
The social context of parental rights in abusive circumstances
Rape and the law
One reason why some US states demand a standard of proof that most victims cannot achieve in the current legal system is that previously it wasn’t known that most rapes don’t result in convictions.
The perspective of family courts and social services
Another reason is, it’s important to prevent parents crying rape to stop their ex-partner gaining custody, just like parents shouldn’t cry child abuse or drug dependency. However child abuse and drug use does not require a conviction to anull custody. So why should rape? Perhaps because abuse and neglect cause harm to the child. Whereas rape is harmful to the mother, or at worst only potentially a sex abuse risk to the child.
The invisible rape victims who share custody with their rapists
So far we’ve kept the focus on America. But rapists gaining custody of children may happen more often than we think- including in the UK. Most women (and other people with wombs) are raped by friends or family. These victims may be less surprised at a custody demand from an ex-husband, colleague, or fellow student they bump into every day, than they would a demand from a stranger who barely saw their face. The rapist who is present in their victim’s life has the opportunity to display clues as to their intent to sue for custody, or may even express that wish as soon as the pregnancy is known to them, further lessening the victim’s surprise when custody is demanded. Therefore these victims may not publicize the rapist’s custody lawsuit. Most victims never tell police (many don’t even tell their family) so such custody battles may not be identified for what they are.
Domestic violence and child custody
Furthermore sexual assault is not uncommon in domestic violence, so some custody battles which arise from abusive relationships may have involved rape. This raises the question of how cases where rapists want custody of children not born from rape be treated. The harm to the mother of contacting her assailant is likely to be the same whether or not the child(ren) were conceived by the assault. Yet one could argue that it is grossly unfair to punish a criminal by removing his parental rights when his fatherhood has nothing to do with his crime. Situations where it is unclear whether conception resulted from rape or from consensual sex a short time earlier/later also pose problems.
It is notable that domestic physical violence survivors have to share custody of children- despite the trauma suffered by some survivors being similar or worse than the trauma suffered by some rape survivors. Domestic and intimate partner violence tends to have a much longer duration than a single incident of rape. It sometimes carries similar hallmarks to some sexual attacks such as physical restraint, imprisonment inside the home, psychological abuse and physical assault. So this raises the question of whether physical abusers who conceived children in abusive relationships should have rights. But they do. Physical abusers who are considered to pose a threat to their victim or the child have supervised custody, but it is custody nonetheless. Only a risk to the child can result in parental rights being removed. Further, parental rights are usually not removed completely; a parent who loses custody may still be granted supervised contact and has a say in the child’s education. This applies to parents of all genders including adoptive parents.
While the idea of a man ‘owning’ his biological children (and sometimes any woman he sleeps with) is patriarchal, I don’t think there is consistent evidence that Law’s patriarchal history (and present) is the sole or even major factor at play. The laws of different legal systems bestow parental rights and responsibilities regardless of how children are conceived. Statutory rapists can receive child support from their victims and, since most single parent families are female-headed, female statutory rapists are perhaps more likely to have sole custody. Men who didn’t consent to insemination are nevertheless given responsibilities as well as rights. The survivors who are forced to share custody aren’t the victims of outdated or unusual laws. Rather, the inhumane way they are treated is embedded in the principles of western legal systems.
In conclusion, the issue of how the law should treat rapists who want parental rights is, morally, clear-cut. However, in legal terms it’s less clear and raises a lot of questions about how abusive parents more generally should be treated. The first step would be for the seven states to fall in line with the others and abolish the need for a conviction, instead using a civil process to determine whether rape was committed. The civil standard is already used in the process of assessing state compensation for rape (in the states which provide criminal injuries compensation to victims of crime). As to how other sex crimes such as statutory rape and coercion should be treated, not to mention children born from physically abusive or extreme psychologically abusive relationships, hopefully in future we’ll see a change towards protecting victims, children and innocent family members, while guaranteeing parents’ rights wherever appropriate.
It’s also important to remember that the news of necessity features survivors who are free to speak out and sometimes willing to waive their anonymity. Behind the headlines there are many more victims of rape and sexual abuse being forced to share custody with their assailants in silence.