TWO REASONS WHY RAPISTS SHOULD NOT HAVE PARENTAL RIGHTS
Vice President, Joel Sheppard Family Law Assistance Program
JD Candidate 2015
Sandra Day O’Connor College of Law
Arizona State University
After a sexual assault victim is raped, violated, traumatized, and impregnated, she lacks legal protection in many states to raise the child without the involvement of the rapist. Because of the traumatic and criminal nature of sexual assault, rapists should not be able to continue re-traumatizing their victims by having visitation rights to the child conceived by that crime. In 31 states, a rapist is not automatically prevented from seeking and exercising his parental rights over the child conceived by sexual assault. In Massachusetts, a 14 year old girl was raped, impregnated, and had the child in 2011. In 2013, despite being convicted for sexual assault, the rapist is pursuing visitation rights and is continuing to traumatize his victim and now child. In S.J. v. L.T., the Supreme Court of Alaska held “absent a statutory mandate, the court refused to terminate a rapist’s parental rights over the child conceived by rape.” A sexual assault victim who chooses to raise the child she conceived through rape should not have to endure a lifetime of forced, involuntary, court ordered interactions with her attacker. Because of a lack of statutory protections, this is the precise reality that many rape victims are experiencing.
Sexual assault survivors in states without statutory protections are forced to gamble with the family courts.  The mother is forced to play “Russian Roulette” with the family law judge to deny custody and visitation with her attacker.  Or the rape victim can try to bargain with her rapist to not pursue criminal prosecution for the rape, in lieu of the rapist promising to allegedly relinquish their parental rights or run. Absent legislation to the contrary, a rapist has the same parental rights to a child as any other father.
Neither adoption nor abortion resolves the issue of a rapist having or asserting parental rights because not all sexual assault victims chose those options.  More importantly, the assumption that a woman will automatically want an abortion, robs her of a free choice to make a decision about the pregnancy.  Arizona should correct this statutory deficiency for two reasons: (1) it is in the best interest of the child; and (2) it will help alleviate the recurring and traumatic harm to the victim.
A real rape victim would never make the conscious and deliberate decision to carry to term, deliver and raise a child conceived by rape. If she does she is an imposter and not a real victim of sexual assault. This is the precise rhetoric that contributes to the ideal rape victim, the prototype. There are rape prototypes circulating in the media, literature and culture. Prototypes are a cognitive trick that people use to determine whether an individual’s behavior is typical or normal.
Pregnancy resulting from rape occurs with significance. Contrary to Senator Akin’s inflammatory comments that “’legitimate rape’ rarely results in pregnancy,” conception from rape occurs more frequently than society realizes. A 1996 study (which has not been updated) estimates the pregnancy from rape rate to be 5 percent, which translates that for rape victims of reproductive age (15-45) there are likely “32,101” pregnancies that result from rape each year. Conversely, a study from 2000 estimates that the roughly 25,000 sexual assault victims become pregnant after their attack. Both studies indicate the clear reality that rape can result in pregnancy and that those women are in need of protection from the rapists should they choose to raise their children. The 1996 study revealed that of the women pregnant from rape 50 percent aborted the pregnancy, 5.9 percent placed the child for adoption, 11.9 percent experienced a spontaneous abortion and 32.2 percent decided to keep the child. Thus, the 32.2 percent of women who made the choice to keep the child conceived by sexual assault are in critical need of legal protections from the rapists who may try to assert any type of parental rights to the child.
The rape-product justification underpinning harps on “the notion that it is cruel to force, through the absence of abortion laws or other protections, a pregnant woman to carry the ‘product of such [a] violent, vicious and terrible act as that of rape.’” The rape product justification rhetoric further vilifies the child and leaps to the assumption that “any child born of such an occasion would have little chance of being well-loved.” This idea that the “rapist’s child” is unwanted also supplies the basis of the notion that “pregnancy by rape does not result in ‘real ’motherhood.” Further, the rape product justification advances support for abortions on the premise that by giving the rape victim a choice to terminate the unwanted and undesirable rape product pregnancy empowers the victim to take control and end the violence of the rape. The rape product justification robs a pregnant rape victim of the choice to determine if she, as an individual, wants to terminate her pregnancy. Society takes the choice away from the sexual assault victim by telling her that her child is a “monstrosity” and that she is not experiencing “real motherhood,” and should consequently terminate the pregnancy.
Arizona should not require a conviction of rape in order to terminate a rapist’s parental rights.  Arizona should revise A.R.S. §8-533(B) to include the following grounds to terminate parental rights:
(12) The court’s presiding officer shall terminate a biological father’s parental rights (legal decision making, parenting time, supervised, unsupervised visitation or any combination of those) if:
(a) It can be established by clear and convincing evidence that child was conceived by rape.
(i) If the court’s presiding officer finds the child was conceived by rape there is a rebuttable presumption that is not in the child’s best interest for the father to have any legal decision-making, parenting time, supervised, unsupervised visitation or any combination of those.
(b) During this process the court’s presiding officer shall not allow the biological father to have legal decision-making or parenting time with the child(ren) in question until a decision is made.
(c) A court may not impose child support against the rapist when parental rights are terminated.
The reformed statute provides necessary safeguards to the biological father/rapist while protecting the mother and ultimately providing for the best interest of the child. First, the statute prohibits termination of the biological father/rapist’s sole or joint decision making of the child or unsupervised parenting time unless it is proven that the child was conceived by rape using a clear and convincing standard.  Clear and convincing evidence is a taxing standard; it requires “‘testimony that is so clear, so direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of truth, of the precise facts in issue.’” The burden of the proof protects the biological father/rapist and enables a mother/rape victim to pursue this claim without the formidable task of obtaining a criminal conviction against the rapist, which requires proof beyond a reasonable doubt. 
Importantly, this statute also provides a mechanism to protect the child’s best interests. By creating a rebuttable presumption, the statute assumes it is in the best interest of the child to not have a relationship with the rapist. Additionally, to avoid the problem of the Texas statute, this proposal denies all visitation or custody of the child until a decision is rendered. Conceiving a child by rape does not create a family between the rapist, the rape victim and the child. The goal of this statutory reform is to protect rape victims/survivors and their children from the continued harassment and abuse of the rapist. 
 In this paper, the term rape and sexual assault refers to incidents where there has been sex without consent as claim by the woman. Rape and sexual in this paper does necessarily mean that the rapist was tried and convicted by a court of law.
 Gideon Resnick, Massachusetts Might Force a Woman to Share Parental Rights with the Rapist Who Impregnated Her, http://m.vice.com/read/massachusetts-might-grant-a-rapist (last visited November 22, 2013); Dahlia Lithwick, A Spectacularly Awful Week for Rape: http://www.slate.com/articles/double_x/doublex/2013/08/montana_massachusetts_rape_cases_when_judges_can_t_get_even_the_easy_cases.html (last visited November 22, 2013).
 See Resnick supra note 2.
 S.J. v. L.T., 727 P.2d 789, 800 (Alaska 1986)
 Meehan Fights for Rape Victims’ Rights, http://riponadvance.com/news/meehan-fights-for-rape-victims-rights/4671 (last visited November 22, 2013). In fact, on August 2, 2013, a move by “the bi-partisan team of Debbie Wasserman Schultz (D-FL) and Tom Marino (R-PA)” introduced federal legislation to enable “survivors of rape to terminate the parental rights of the men who raped them.” Without passage of “The Rape Survivor Child Custody Act” rape survivors are left with scant legal protections in the respective states.
 Shauna Prewitt Note, Giving Birth to a “Rapist’s Child”: A Discussion and Analysis of the Limited Legal Protections Afforded to Women Who Become Mothers Through Rape, 98. Geo. L.J. 827, 857 (2010)
 Shauna Prewitt, Pregnant, Raped and Ordeal Not Over http://www.cnn.com/2012/08/22/opinion/prewitt-rapist-visitation-rights/index.html?eref=mrss_igoogle_cnn (last visited September 28, 2013); See Prewitt, supra note 7, at 854
 Mark Duell, ‘This is not a family, it’s a felony: Teen whose rapist wants rights to visit their child says he is using the family court system to continue to victimize her” http://www.dailymail.co.uk/news/article-2402493/Massachusetts-teens-rapist-Jamie-Melendez-wants-rights-visit-child.html (last visited November 22, 2013)
 See Prewitt, supra note 7, at 829; Kara Bitar, Gender and Criminal Law & Policy: Note: The Parental Rights of Rapist 19 Duke Gender L. & Pol’y 275, 275 (2012)
 Id. at 275.
 Bitar, supra note 9 at 275-76, stating, “ Women are not forced to carry their pregnancies to term. Nor are women forced to have abortions or place their children up for adoption- or are they? […] even less protection is provided to women who keep their children [conceived by rape] instead of placing them up for adoption. This lack of protection strips women of a real choice.”
Prewitt, supra note 7 at 840-42; See generally Bitar, supra note 10 at 275, 285-286 discussing a woman’s lack of meaningful choice concerning her pregnancy by rape.
 Melissa M. Holmes et al., Rape-Related Pregnancy: Estimates and Descriptive Characteristics from a National Sample of Women, 175 AM. J. OBSTETRICS & GYNECOLOGY 320, 320 (1996); Casia Spohn & Julie Horney, Rape Law Reform: A Grassroots and Its Impact, 159-75(1992); See also Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law, 17-46 (1998).
 Martha Chamallas, Deepening the Legal Understanding of Bias: On Devaluation and Biased Prototypes, 74 S. CAL. L. REV. 747, 782-89 (2001).
 Holmes, supra note 13 at 320.
 See Prewitt, Pregnant, Raped and Ordeal Not Over, supra note 8.
 Holmes, supra note 13 at 320, 322.
 Felicia H. Stewart & James Trussell, Prevention of Pregnancy Resulting from Rape: A Neglected Preventive Health Measure, 19 Am. J. Preventive Med. 228, 228 (2000). This study sampled 4,008 women over three years and then took the results to estimate the frequency nationally.
 Holmes, supra note 13 at 320,322; See Stewart, supra note 18 at 228.
 Holmes, supra note 13 at 320.
 Bitar, supra note 9 at 276; Prewitt, supra note 7 at 829.
 Prewitt, supra note 7 at 842; 141 CONG. REC. 21, 925 (1995) (statement of Rep. Johnson).
 Prewitt, supra note 7 at 847; See also Petition from NARAL Pro-Choice America to the United States Congress (“NARAL petition”) (June 27, 2007), http://www.thepetitionsite.com/takeaction/352749405 (quoting comments of Petitioner # 36,950, Anonymous) footnotes 141 and 133.
 Prewitt, supra note 7 at 842.
 SeSee also Petition from NARAL Pro-Choice America to the United States Congress (“NARAL petition”) (June 27, 2007), http://www.thepetitionsite.com/takeaction/352749405 quoting comments of Petitioner # 2, Pat Rued; Prewitt supra note 7 at 847.
 Prewitt, supra note 7 at 836-37, discussing the difficulty of obtaining a conviction, and highlighting the fact that rape is the most underreported crime.
 Bitar, supra note 9 at 296-97;
 Bitar, supra note 9 at 296.
 Bitar, supra note 9 at 296-297;
 Prewitt supra note 7 at 856-57, discussing as a result of time delay between a criminal conviction and termination proceedings, anywhere from 6 months to two years, termination statutes that are permissive rather than mandatory may force the mother and child to the nonetheless interact with the rapist. Further, during the time between criminal trial and termination proceedings, the mother may be forced to interact with the rapist where the criminal case precedes the custody hearing
 See Resnick, supra note 2; See Litwithick, supra note 2; See Prewitt, supra note 8; See Duell, supra note 9; See Filip, supra note 158.
 Bitar, supra note 10 at 302.