Rape suspects' parental rights under debate

Bill would let judge waive rights without a conviction

By Gadi Dechter |Sun reporter

In Maryland, a man who fathers a child through rape maintains parental rights, such as the right to appeal for visitation or custody of his offspring.

Those rights are the subject of sharp debate in the General Assembly this session, with lawmakers struggling to balance the welfare of rape victims with the rights of accused sexual offenders to due process and fair hearings.

Advocates say cases in which the issue comes up are rare but not unheard of. They cited a recent instance in which a court sought a suspected rapist's opinion about what to do with his daughter when the traumatized mother -- his alleged victim and former stepdaughter -- became unable to care for her.

Senate lawmakers considered legislation yesterday that would allow a judge to waive an alleged rapist's parental rights, even if he has been acquitted of the charge in criminal court.

"Rapists should not have paternity rights in their victims' offspring," said state Sen. Jamie Raskin, a constitutional law professor at American University and a sponsor of the bill.

A similar bill was approved by the state Senate last year but died in a House of Delegates committee. The proposal still faces opposition in the House Judiciary Committee, where members say they are reluctant to rescind the parental rights of men who have not been convicted of a crime.

"I think that at present, a majority of the members of the committee have profound, and I think well-founded, concerns about the actual content of the bill," said Del. Luiz R.S. Simmons, a Montgomery County Democrat and Judiciary Committee member. "You can be accused of rape, you can be indicted for rape, you can be acquitted by a unanimous jury, and yet you can still lose your child under this bill."

Under the measure, a judge could exclude a man as the legal father of a child if the court believed that there was "clear and convincing evidence" that a rape had occurred. That is a lesser burden of proof than the "beyond a reasonable doubt" standard applied in criminal cases.

Raskin and House of Delegates sponsor Del. Kathleen M. Dumais, both Montgomery County Democrats, said they are not willing to amend the legislation to apply only to convicted rapists, arguing that doing so would render the bill meaningless.

"Only 39 percent of rapes are reported, and only about 16 percent of those result in a conviction," Dumais said.

As of 2004, 21 states had enacted laws terminating some parental rights in the case of a child conceived by sexual assault, according to the Maryland Coalition Against Sexual Assault, which supports the bill. About half of the states do not require a criminal conviction, said Lisae C. Jordan, the group's legislative counsel.

The Maryland bill stems from a 2005 Montgomery County juvenile court custody case involving a 14-year-old girl whose mother was hospitalized after attempting suicide.

The 27-year-old mother told social workers that she conceived the daughter after being raped repeatedly by her stepfather.

When the state asked a juvenile court judge to transfer custody of the girl to relatives, the judge said that under Maryland law, the father's "rights and wishes need to be considered in planning for this child," according to written testimony by Michael Stevens, the social worker involved.

"It was horrible," said Mary E. Shine, supervisor of child protective services in Montgomery County. "The child had not known until this series of events the story of her conception. We had a mother who was emotionally compromised, and here was the notion of this man suddenly having the right to appear in court."

Ultimately, relatives were able to persuade the stepfather to withdraw his rights, but social workers said the case convinced them of the need to amend Maryland law.

During yesterday's hearing, Sen. Lisa A. Gladden, a Baltimore Democrat and public defender, asked advocates how many similar cases have occurred recently in Maryland.

Jordan, the victims' advocate, said she did not know, but noted that about 5 percent of rapes of females ages 12 to 45 result in pregnancy. About half of those pregnancies are aborted, she said.

Under current law, courts generally may not award custody or visitation rights to a parent who has been found guilty of killing the other parent or another of his children. The law does not address the issue of rape.

Fathers also have a say when mothers want to put a child up for adoption. That occurs in about 6 percent of rape-related pregnancies, according to a 1996 study published in the American Journal of Obstetrics and Gynecology that Jordan cited.

Raskin said that in those cases, a mother might opt for abortion rather than risk handing over her child to the man who raped her. "It puts the women in a terrible quandary," he said.

Anti-abortion groups, such as the Maryland Catholic Conference, support the bill in part for that reason, he said.

"They want to remove any disincentive for women who want to go ahead and give birth," Raskin said.

The Maryland Judicial Conference, a judges group, and the Office of the Public Defender oppose the bill in its current form.

Dumais said she is working on amendments that would address some of the concerns raised by fellow delegates and is hopeful that a bill will make it to the House floor. More than half of that chamber has co-sponsored the measure.

Raskin predicted easy passage in the Senate. Gov. Martin O'Malley has not yet reviewed the bill, said spokesman Rick Abbruzzese.