The Rape Survivor Child Custody Act is a new federal law that will protect women who are victims of rape who become pregnant (as a result of rape) and decide to keep their baby. The Rape Survivor Child Custody Act “provides an incentive to states to pass legislation providing for a means to terminate the parental rights of rapists, using the “clear and convincing evidence” standard from the U.S Supreme Court case of Santosky v Kramer.” The Rape Survivor Child Custody Act is an amendment to the Justice for Victims of Trafficking Act (JVTA).
Text of The Rape Survivor Child Custody Act can be read here: https://www.govtrack.us/congress/bills/114/hr1257/text
“This bipartisan bill, which is part of the larger JVTA legislation, is an important step forward for rape survivors, who deserve commonsense protections under the law. No state should allow a rapist to use parental rights as a weapon against a survivor.” says Congresswoman Debbie Wasserman Schultz.
Analyn Megison, Florida, is a rape survivor and co-founder/board Member of Hope After Rape Conception who helped to implement the law. Megison conceived a child out of rape only to be sued by the rapist for custody of the child. Megison says, “My basic human rights were violated when I was raped during his violent attack years ago as I plead for my dignity and humanity, but I think that one of the things I am still having to advocate for is the basic human rights of my child, and other innocent children like mine.“
The dangers to women sharing custody with a rapist, and children conceived as a result of rape being forced to have contact with a rapist are real. There are stories of children who have been abused and molested by their rapist fathers. And other stories of mothers who have been harassed, stalked, and raped again by rapist fathers who used contact with the child to re-victimize the mother. A violent person, who has prior criminal offenses, and/or has committed physical and sexual violence against another person should not be given custody or visitation of a vulnerable child.
Text in the Rape Survivor Act is very clear about the risks to mother and child if forced to interact, and share custody with a rapist, “(10) A rapist pursuing parental or custody rights forces the survivor to have continued interaction with the rapist, which can have traumatic psychological effects on the survivor, making it more difficult for her to recover…(12) Rapists may use the threat of pursuing custody or parental rights to coerce survivors into not prosecuting rape, or otherwise harass, intimidate, or manipulate them.”
Every year between 25,000 – 32,000 women in the US become pregnant as a result of rape. According to one study, 1/3 of women choose to keep their baby, others choose adoption or abortion. Another study concludes that of the 73% of women who become pregnant as a result of rape and choose to continue the pregnancy, 64% keep their children. That is an estimated 10,000 custody battles per year involving rapists seeking custody of their children.
The Rape Survivor Child Custody Act works by giving states a federal grant money, “The Attorney General shall make grants to States that have in place a law that allows the mother of any child that was conceived through rape to seek court-ordered termination of the parental rights of her rapist with regard to that child, which the court shall grant upon clear and convincing evidence of rape...There is authorized to be appropriated $5,000,000 for each of fiscal years 2016 through 2020.“ The grant money is to be used in approved programs, the STOP Violence Against Women Formula Grant Program and the Violence Against Women Act of 1994, and used as incentive for states to pass laws to terminate the parental rights of men who have been proved to be rapists, and conceived a child as a result of rape.
I applaud and support the efforts of states to terminate the parental rights of men who have been proven to be rapists, and who have conceived a child as a result of rape. However this law should also extend to anyone who has a history of violent crime, sexual assault, child molestation or child abuse. There are real cases of men who have been convicted of sexual offenses who gain custody or visitation of children. Or judges that order children must visit a parent in jail. This law is an important first step in protecting rape survivors and their children, but more must be done to reform family court overall.
Another thing I find interesting is that the use of federal funding is influencing and shaping state laws. The incentive for terminating the rights of a man who fathered a child through rape should be based on the safety and well-being of the child, and the safety of the rape victim; these laws should be passed in the interest of public safety, not just because there is a federal grant behind it. Federal money should not be leading changes in state laws, or in the operations of our courts. You have to wonder how other parts of family court are being influenced by federal funding, and if child custody is up for sale.
What I find encouraging is that the Rape Survivor Child Custody Act is a result of grassroots action – rape survivors, victim advocacy groups, several national organizations like the National Alliance to End Sexual Violence and several state-specific sexual violence coalitions and others worked together to create and promote this law. It gives me hope that a similar effort can be rallied to effect needed reform in family court, and its systemic approach to dealing with families who have experienced domestic violence.
— Emily Court
“New Law Says Rapist Shouldn’t Get Custody of His Child When a Raped Woman Rejects Abortion” by Rebecca Kiessling, Life News, 6/1/2015: http://www.lifenews.com/2015/06/01/new-law-says-rapist-shouldnt-get-custody-of-his-child-when-a-raped-woman-rejects-abortion/
“People Look at Me in Horror when they Learn My Daughter was Conceived in Rape” by Analyn Megison, Life News, 8/20/2014: http://www.lifenews.com/2014/08/20/people-look-at-me-in-horror-when-they-learn-my-daughter-was-conceived-in-rape/
“Reps. Marino, Wasserman Schultz Applaud Passage of Rape Survivor Child Custody Act” by Tom Marino, U.S. Congressman, 5/19/2015: http://marino.house.gov/press-release/reps-marino-wasserman-schultz-applaud-passage-rape-survivor-child-custody-act
“Senate Moves Closer to Stopping Rapists from Getting Custody of Children” by Lauren Fox, National Journal, 4/22/2015: http://www.nationaljournal.com/congress/senate-moves-closer-to-stopping-rapists-from-getting-custody-of-children-20150422
“Everything I Love is Gone: Theola Nealy v. Peter Nelson (Mother Loses Custody After Impregnated by Social Worker” : https://familycourtinjustice.wordpress.com/2014/09/24/lost-everything-i-love-theola-nealy/
(Wisconsin) Theola Nealy is a vulnerable adult who was coerced into have sex with Peter Nelson, social worker. Nelson told Nealy that if she has sex with him, he can prevent the state from taking her 2 children.
Because Theola Nealy has a mental health diagnosis, she is considered a vulnerable adult, and cannot consent to a sexual relationship. This makes what Peter Nelson did rape. According to Wisconsin law,”Minors, persons suffering from mental illness or defect, and sleeping or unconscious persons are presumed unable to give consent. Failure to resist does not indicate consent.” Section 940.225 (4).
Peter Nelson has never been criminally charged. When Nealy became pregnant, and gave birth to a daughter, Nelson fought for sole custody and won.