Model Statutory Language to Protect Rape Victim Mothers and Their Children

This language is directly from the two statutes recently passed in the Indiana Senate, by a 50-0 vote, except that the language in the Indiana bill says that a judge cannot grant child support if parental rights are terminated: “If a court denies an individual custody, parenting time, and contact with a child under this section, a court may not require the

individual to pay child support for the child.” As a Family Law Attorney, and having worked with many mothers who became pregnant by rape, I do not recommend this language nor do I think it is necessary, which is why I am not including it as “model language.” I’m not so sure that the marital exemption is necessary and/or properly crafted, given that I represented women who were raped by their husbands during a pending divorce, so I believe the ideal language will protect a woman in that scenario.

Indiana is poised to become the first state to properly protect rape victims mothers, and I hope that many states will follow Indiana’s example. This is clearly a pro-life bill, and yet, every pro-choice Senator voted for it, because protecting these women and their children is the right thing to do. Only 18 states currently provide for the termination of the parental rights of rapists, but each one of those requires a conviction for rape. According to the U.S. Supreme Court, the standard of proof in termination of parental rights cases of “by clear and convincing evidence,” and not the higher criminal standard of “beyond a reasonable doubt.” Rape victims should not be under greater burden than all other termination parental rights cases. It is estimated that only 1% of rape victims ever see the rapist convicted as charged. If a prosecutor actually pursues a case, most are plead down to a lesser crime than rape. It is further estimated that over a half a million rape kits sit on evidence shelves across the U.S.. Of those 18 states, only one makes the termination of parental rights mandatory (Louisiana,) and none of the states authorizes a rape victim to file the case herself when the prosecutor and/or child protective services has refused to do so. Finally, none of the states allows a Family Court judge to suspend parenting time and custody pending the outcome of the criminal prosecution and/or the termination of parental rights case. This statute allows a judge to do just that. Given that more than 50% of impregnated rape victims choose to parent their children, we need to focus on passing this model legislation instead of paying for her child to be killed. These women deserve better and need real help. If you really care about rape victims, you should be working to protect them from the rapist and from the abortion, and not the baby.

Synopsis:

Termination of parent-child relationship. Allows a parent

who is the victim of an act of rape from which a child was conceived

to file a petition to terminate the child’s parent-child relationship with

the alleged perpetrator. Requires a court to terminate the parent-child

relationship if the court finds: (1) by clear and convincing evidence that

the alleged perpetrator committed an act of rape against the parent who

has filed the petition to terminate the parent-child relationship and that

the child was conceived as a result of the act of rape; and (2)

terminating the parent-child relationship would be in the best interest

of the child.

“Act of rape”, for purposes of __

means an act described under:

___; or ____.

Sec. 1. A court, in a proceeding under ______, _________, or _______,

may appoint a guardian ad litem, a court appointed special advocate,

or both, for a child at any time.

Chapter ___. Termination of Parent-Child Relationship of an

Individual Who Committed an Act of Rape

Sec. 1. Proceedings under this chapter are governed by the

procedures prescribed by:

______ through _________, and

______ through _________;

but are distinct from proceedings under _ and _.

Sec. 2. The probate court has concurrent original jurisdiction

with the juvenile court in proceedings on a petition to terminate the

parent-child relationship under this chapter.

Sec. 3. If a child was conceived as a result of an act of rape, the

parent who is the victim of the act of rape may file a petition with

the juvenile or probate court to terminate the child’s parent-child

relationship with the alleged perpetrator of the act of rape.

Sec. 4. The verified petition filed under section 3 of this chapter

must:

(1) be entitled “In the Matter of the Termination of the

Parent-Child Relationship of ______________, a child, and

_______________, the parent”; and

(2) allege:

(A) that the alleged perpetrator committed an act of rape

against the parent who has filed the petition to terminate

the parent-child relationship;

(B) that the child was conceived as a result of the act of

rape described under clause (A); and

(C) that termination of the parent-child relationship of the

alleged perpetrator with the child is in the best interests of

the child.

Sec. 5. A showing by clear and convincing evidence that:

(1) the alleged perpetrator committed an act of rape against

a parent described in section 4(2)(A) of this chapter; and

(2) the child was conceived as a result of the act of rape;

is prima facie evidence that there is a reasonable probability that

continuation of the parent-child relationship with the alleged

perpetrator is not in the best interests of the child.

Sec. 6. (a) The court shall terminate the parent-child

relationship if the court finds:

(1) by clear and convincing evidence, that the allegations in a

petition described in section 4(2)(A) and 4(2)(B) of this

chapter are true; and

(2) that termination of the parent-child relationship is in the

best interests of the child.

(b) If the court does not find:

(1) by clear and convincing evidence, that the allegations in a

petition described in section 4(2)(A) and 4(2)(B) of this

chapter are true; and

(2) that termination of the parent-child relationship is in the

best interests of the child;

the court shall dismiss the petition.

Sec. 7. The court may appoint:

(1) a guardian ad litem;

(2) a court appointed special advocate; or

(3) both a guardian ad litem and a court appointed special

advocate;

for a child in a proceeding under this chapter as provided under

______.

Synopsis: Denial of parenting rights to rapists. Prohibits a person who

caused a child to be conceived by rape from obtaining custody,

parenting time, or contact with the child if a court finds by clear and

convincing evidence that the person perpetrated the rape. Provides an

exception if the biological parents of the child were married at the time

the child was conceived. Permits the court to order a party to pay the

prevailing party costs and attorney’s fees in an action to deny parenting

rights.

Chapter _. Child Conceived as a Result of an Act of Rape

Sec. 1. (a) This section does not apply if the biological parents of

a child were married at the time the child was conceived.

(b) If:

(1) an individual who:

(A) is the biological parent of a child; or

(B) alleges to be the biological parent of a child;

seeks custody, parenting time, or contact with the child; and

(2) the court finds by clear and convincing evidence that:

(A) the child was conceived as the result of an act of rape;

and

(B) the individual described under subdivision (1) was the

perpetrator of the act of rape;

the court shall deny the individual custody, parenting time, and

contact with the child.

Sec. 2. (a) The court may order a party to pay to the prevailing

party a reasonable amount for:

(1) the cost of maintaining an action under this chapter; and

(2) attorney’s fees, including amounts for legal services

provided and costs incurred, before the commencement of the

proceedings or after entry of judgment.

(b) The court may order the amount under subsection (a) to be

paid directly to the attorney of the prevailing party, who may

enforce the order in the attorney’s name.

“.

2 thoughts on “Model Statutory Language to Protect Rape Victim Mothers and Their Children

  1. Thank you for your work. So much needs to be done to raise awareness around this issue.

    I disagree that people would mean that your biological mother having the right to abort her pregnancy means something about you personally but I’m open that maybe I’m not understanding you.

    I’ve done both.

    I was only 13 when I became the victim of a perpetrator that violently sexually assaulted me. I tried to tell and was not believe. He then came to my house and raped me again. And again many times until I was 17 when he got me pregnant. I told my mother and his mother and they got together to bring me to have an abortion. I didn’t want to go through with it so I had the child. No one protected me and i ended up in a 4 year “relationship” with HIM. A drug dealer. An abusive nightmare of a relationship with a rapist, misogynist, sick person. I had 2 abortions during this “relationship” as I knew something was terribly wrong but by now I was suffering with a kind of stockholm syndrome.

    When I was 23 I had a nervous breakdown and lost my son to HIM.

    Now I’m 44. My son and I love each other and my son is on SSI for PTSD caused by abuse from HIM.

    I am speaking with a legal advocate and making a statement to police to have charges against HIM, possibly child abuse as well. Hopefully this weekend as I am going to that state to visit my son…and my new grandson.

    Like

  2. Hi Mila, thank you for sharing. You should have been protected. If you’d ever like to write out your story to share on my site, I’d love to host it. You are not alone. As you can see from the Pregnant By Rape page, there are many others. My e-mail is rebecca@rebeccakiessling.com

    Like

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