Do Rapists Have the Right to Parent Children Conceived in Rape? Part Two of a Two-Part Series of Columns

This is the second in a two-part series of columns by Professor Colb. Part One appeared here on Justia’s Verdict on Wednesday, December 12 –Ed.

In Part One of this two-part series, I took up the question whether rapists ought to have the right to a parental relationship with the children they conceive in rape.  I examined some arguments for recognizing this right but ultimately concluded that no such right ought to exist.

In this, Part Two of the series, I consider the legal reality of rapists’ parental rights.  I offer an account of why rape victims may sometimes find themselves at the mercy of this phenomenon, despite a likely consensus rejecting a rapist’s entitlement to visitation with the children conceived during a sexual assault.

The Complicating Factor:  Burdens of Proof

Given the power of the argument against allowing rapist-fathers to exercise parental rights over their rape-generated offspring, does the law accordingly deny this exercise to perpetrators?  The answer is unclear.  As this article in Mother Jones explains, many states provide no express protection against rapists’ assertions of parental rights, and a number of states that do offer protection provide for the termination of parental rights only when a man has been convicted of rape.  Many rapes, however, never lead to even an arrest, much less a conviction.  This state of affairs reflects the fact that rape trials are often a nightmare for rape victims, despite the legal reforms of the past three or four decades, and many women thus prefer to move on with their lives without pursuing a criminal action against their rapists.

When a rape victim does not pursue her legal remedies, however, the father of her child can easily claim that there was no rape.  Under these circumstances, when a father seeks (or threatens to seek) custody or visitation with a child—sometimes as a means of harassing his victim—what should the law do?

Assuming that the law aims to divest rapists of parental rights with regard to the children of their rapes, there are a number of possible approaches it might take.  One would be to require a criminal conviction, or an equivalent finding beyond a reasonable doubt, that the conception of this child occurred during a rape.  In Maryland, for example, legislators rejected a bill that would have provided for the forfeiture of parental rights upon a finding of rape by a preponderance of the evidence, which is the standard of proof in civil cases.  According to the Representative who unsuccessfully pressed for the bill, “[t]he House took the position that you can’t say there was conception by rape unless there was a rape conviction.”

I would not infer from these state laws that people support parental rights for rapist-fathers.  Instead, what may be happening is a potential misreading of the criminal-trial directive to presume innocence.  Under this directive, a jury must begin the criminal trial with a strong presumption that the defendant is innocent.  At the end of the trial, then, the jury must return a verdict of “Not guilty” if the prosecutor fails to rebut the presumption of innocence with evidence that persuades the jury of the defendant’s guilt beyond a reasonable doubt.

The primary reason for the strong presumption of innocence and the corresponding heavy burden of proof (or, as we Evidence professors like to say, “burden of persuasion”) in criminal cases is the fact that the defendant may lose his or her liberty (or even, in some cases, his or her life) as a direct consequence of a guilty verdict.  For this reason—because it is, as William Blackstone said, “better that ten guilty persons escape than that one innocent suffer”—we selectively and strongly favor Type 2 errors (where we falsely acquit a guilty person) over Type 1 errors (where we falsely convict an innocent person).

The calculus changes, however, in civil cases, where the burden the plaintiff must carry is a preponderance of the evidence, even if the case concerns the same misconduct as the analogous criminal trial would have.  Thus, if a plaintiff were to bring a lawsuit against a defendant for an intentional tort (a category that would include sexual assault), she would prevail in her lawsuit so long as she was able to provide sufficient evidence to persuade the jury that the defendant probably raped her, i.e., that the scenario in which he committed a sexual assault against her is more likely than the scenario in which he did not.  That is because the stakes in a civil suit are much lower for the defendant than they are in a criminal prosecution, since the court will award money damages rather than order the defendant’s confinement.

Issues of parental rights might seem to fall somewhere in between civil and criminal law issues.  The loss of parental rights may not be as devastating as the loss of one’s freedom from physical confinement or the loss of one’s life, but parental rights matter more—indeed, sometimes overwhelmingly more—to many people than money ever could.

Should the burden of proof reflect this complexity, perhaps by falling somewhere in between the “preponderance of the evidence” standard and the “beyond a reasonable doubt” standard (as the “clear and convincing evidence” standard does)?

To answer this question, it is useful to think not only about the downside risk of a false positive (unjust money damages, unfair loss of parental rights, and undeserved loss of liberty or life, respectively), but also about the downside risk of a false negative as well.  What is the false negative?  In a criminal case, a guilty person is allowed to go free.  When this happens, we are upset because someone has gotten away with misconduct, and because perhaps the criminal actor is dangerous and may continue to prey on the population as long as he is free.  The latter possibility is speculative, in part because for anyone who will one day leave prison, recidivism rates can be higher after a stint behind bars.  Thus, the only thing we definitely lose, if we erroneously acquit a guilty person, is the opportunity to exact retribution and justice for his misconduct.

In the case of parental rights, however, an erroneous decision to allow a rapist to have an ongoing relationship with the child conceived in rape has considerably greater potential costs, as follows:  First, to whatever extent criminals tend to be more dangerous than other people, a rapist might be expected to be a less-than-ideal father.

Second, any relationship with the rape victim’s child will necessarily generate distress and anxiety for the rape victim.  She will, for example, have to endure less time with her own child than she wanted and rightly deserves to have; and she may well have to interact with the rapist himself on an ongoing basis, despite the traumatic nature of any such interaction.  Also, because she may fear a relationship between her attacker and her child, she may be vulnerable to efforts by the rapist to extort money and other concessions from her (including backing off a criminal prosecution) in exchange for his refraining from pressing his legal right to visitation.  To create a burden that is greater than a preponderance of the evidence, in this context, then, is to require probable rape victims to suffer these harms and indignities.  Put another way, it is to inflict a type of punishment on them.

He Said, She Said

One underlying problem in all of this is the differing intuitions that people have about acquaintance rape.  When a stranger rapes a victim, he most likely will avoid coming forward to make claims of paternity over the child conceived in rape.  In such cases—generally “whodunit” scenarios—the question is not whether the sexual intercourse was consensual, but rather who the perpetrator of the forcible intercourse was.  And the perpetrator, rather than seeking to assert parental rights, will typically seek to avoid detection.

In acquaintance rape cases, by contrast, there is no “whodunit” mystery, and the issue in contention is whether the intercourse itself—which both parties might agree took place—was or was not forced.  Because the physical evidence in such cases is often ambiguous, the jury must decide whether what “he said” (the woman consented) is accurate or whether what “she said” (there was no consent, and force or threats were used by the man) is accurate.  Some believe this question to be inherently unresolvable beyond a reasonable doubt.

My view is that we have a great deal more to worry about from stranger-rape victims who inadvertently misidentify their assailants than we do from acquaintance-rape victims who invent a rape that did not take place.  One’s view on the risks of believing the sworn testimony of an accuser over that of an accused will depend on how frequently one thinks that such false claims of rape are made.  If, as Lord Matthew Hale believed, “rape…is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent,” then we would want to be very cautious about allowing any serious consequences (such as the loss of parental rights or of liberty) to turn on a so-called “swearing contest” between the alleged victim and the alleged perpetrator.

In reality, though, we routinely rely on fact-finders (that is, juries and judges) to determine whether or not to believe witnesses’ sworn testimony in criminal and civil cases that have nothing to do with sexual assault.  The question for doubters, then, is why this routine reliance should not extend to rape cases as well.

Furthermore, it seems fanciful to imagine that many mothers will falsely accuse the fathers of their children of rape simply to avoid the prospect of paternal visitation.  And to the extent that some mothers actually do so, placing a burden on the woman’s side of the case to prove the rape by a preponderance of the evidence will permit the fact-finder to reach the more-likely-than-not correct resolution to the custody and visitation questions.

It is appropriate to treat parental rights as a civil, rather than as a criminal, matter in this context, both because no one faces a potential loss of liberty or life, and—perhaps more importantly—because of the tremendous psychological costs involved in forcing a woman who was probably raped to facilitate her rapist’s parenting of her child.  Given the low rate at which rape is reported to the police, moreover—especially the acquaintance rape variety in which such paternal rights are likely to be sought—we should not demand that a woman go to the police and participate in a criminal prosecution, or its equivalent, as the price of preserving her peace of mind and freedom from having the very perpetrator who raped her become a part of her child’s life and thus a continuing and integral part of her own as well.