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.
Speaking hypothetically, if a woman came to me saying an acquaintance raped her, and she never pressed charges, and he was now seeking visitation, I would probably seek a protective order (maybe called a restraining order elsewhere). If the judge believed her story he would enter a finding of family violence that could serve as the basis for ordering supervised visitation under the Texas Family Code, and ultimately termination. If the judge didn’t believe her we would likely end up in a bitter custody battle that would end up with the accused rapist getting a standard possession order. I guess it would come down to the credibility of the mother, but I think Texas law does a passable job dealing with this quite intractable situation. Still, there is a 2 year limit on how long a petitioner can wait before seeking a protective order. If the child was older and the rapists father resurfaced seeking visitation, it would get very difficult to oppose his claim for unsupervised visitation.
False comparison – you
largely ignored the cost of a false positive in the civil trial. A man’s
reputation will be destroyed, and he’ll lose contact with his child. Win or
lose, of course, the reputations of both will be harmed, society being what it
is. And the cost of a false negative, as you point out is high. Still, I don’t
think this is as easy as you make it seem, and I would have hoped for a more
balanced presentation of difficult choices.
The notion of over-turning the burden of proof aspect of our justice system seems misguided. In our sympathy for one person’s version of events we are willing to violate the rights of another?
But isn’t Family Court already set up to make custody and visitation determinations based on claims raised by each party, which can (and in my experience often do) include allegations of domestic violence and abuse? Your article sets up a false dichotomy between respecting the mother’s rights and allowing contact with an alleged-though-not-convicted rapist father. That is, if any contact facilitated by any means occurs, it causes an unjustifiable amount of suffering and harm to the mother. Unfortunately, this fails to consider either the possibility that accusations of rape are anything but true (or, that if it becomes easier to obtain permanent removal of the father’s rights some mothers might be incentivized to make false claims of rape) or that the court might be persuaded on he-said-she-said alone, in the absence of other evidence, to permanently remove parental rights from a father. It also ignores what the impact of such an error would have on the father or on the child, who is now left in the custody of a parent willing to perjure herself in a vindictive effort to hurt the father (both in terms of loss of rights and loss of reputation) rather than having at least some access with the victimized father. I am not suggesting that your proposed solution would not come to the “right” result the majority of the time; instead, I am suggesting that the severity of the false positives generated by this proposal, both in terms of parental rights and the best interests of the child, far outweigh the consequences. If a coin was weighted in such a way that it came up heads 95% of the time, no fit parent would be willing to stake their parental rights on the possibility that the coin came up heads. And yet, you seem content with a more-likely-than-not result, as though the suffering of the mothers who were in fact raped somehow offsets the complete and utter loss of all current and future parental rights of the falsely-accused fathers. This also assumes that family courts, as currently constituted, are incapable of coming to proper decisions about parental access, even though stripping of parental rights is a possible remedy in most family courts, albeit one that judges are rightly reluctant to impose absent clear and overwhelming (rather than merely more-likely-than-not) evidence. In comparing parental rights to civil decisions, you ignore one fundamental truth: money is fungible; children are not.
It is devastating (as I have experienced in my family law career) for a parent to lose regular access to a child and, as you suggest but then seem to discard out-of-hand, the vast majority of parents would value parenting their child over mere money. This proposal is an example of results-oriented, rather than process-oriented, law, where ensuring that the alleging mother doesn’t have to ever deal with the alleged rapist father is more important than requiring conclusive proof that the alleged rape actually occurred. Furthermore, it seems to imply that family court judges are currently incapable of reaching the “right” conclusion, which is denial of access to the child. It sucks that mothers whose children were conceived by rape may, in some cases, have to share parental rights with the father. However, the courts can take measures to minimize contact between the parents and to ensure that the father, if the court is not absolutely certain that the rape took place, will have at least some visitation with his child.
Personally, the problem is over complication of the issue. If rape is proven and the man is convicted, then it should be a simple answer: deny access. Start with that and make it uniform. The next step is whether a complaint is lodged. If a complaint is lodged, guilty or not, there is a least a measure of concern. From that point, if the mother is assessed to be sound of mind and has the financial support she needs, then access to the father should be limited. Maybe to supervised visits?
I reunite families and my downstairs neighbors father was convicted of a violent street rape of her mother in New York City in the 1970’s and went to jail for it. He was not named on her birth certificate under this ridiculous idea that its wrong to put the truth down if the powers that be find the truth to be unpleasant. Well that meant legally she’s not her father’s child even though her mother pointed him out in a line up and he went to jail for it and it was well publicized and I guess so was her mom’s pregnancy from it. So his family knew he had a daughter and they wanted to see her their niece and grandchild. He was murdered in jail by a relative of her mothers to avenge the rape. My friend never met him.
Why was my friend denied a medically accurate birth record? Why was she not entitled to his financial support? Couldn’t they just have terminated his parental rights without terminating his parenthood by leaving him off her birth certificate? This is done all the time when violent parents are stripped of their rights it does not strip the child of their identity, legal kinship or their right to support or their right to inherit from them or their right to social security and military death benefits. She did not receive military or social security death benefits from her father after he died and she should have. This is the unfair result of thinking that her mothers piece of mind should somehow trump the child’s equal rights with all other children born. Her mother or the state should not be able to opt her out of her rights to support from her father or to be identified as his child on her birth record no matter what he did. The truth is the truth and it should be recorded and she should have had her proper rights and kinship intact and it should be everyone’s right to manage their lives around the truth rather than force falsehood out of some misguided idea of protecting the child from the truth.
There are all kinds of ways to protect the child without stripping the child of their identity and their rights. Arguing from a place of supposition is ridiculous. He actually inherited while he was in jail after the death of a parent, her grandparent. That money should have gone to her but it did not it went to his sisters, who as it turns out saved it for her until they day they’d one day find her and they did find her and they love her very much and she’s glad to have the love of her aunts and cousins. They saved it for her. But what of other families that would not have done the same thing? Shouldn’t the law protect the kid’s basic right to support from their father no matter what? Especially if ‘what’ actually because when a person who has an unloving unsympathetic louse of a parent they are most vulnerable and really need that extra protection in receiving their owed support and they need protection from opportunistic adults who might wish to seize a permanent parental relationship with a kid by de-facto hold out or some other nonsense that winds up costing the kid their identity and kinship rights in his or her own family.
We need to stop thinking of parental title as something people earn through effort and good behavior because you have to be one before your compelled to act like one. Being one is a matter of scientific fact if you have offspring you are a parent and therefore have an obligation to support your dependent offspring even if you don’t want to – the law needs to really protect kids when their parents don’t want to, lest they fall victim to trafficking or black market step parent adoptions with or without paternity fraud. Rape happened to the mother. The child was just born with two bio parents and should not be punished by being forced to live a falsehood.
How does someone have parenthood if they aren’t a legal parent?
You should clarify that conceiving a child makes a person a biological parent but not necessarily a parent.