This is the first in a two-part series of columns by Professor Colb. Part Two will appear here on Justia’s Verdict on Wednesday, December 19. –Ed.
In August of this year, U.S. Representative Todd Akin made what has become an infamously insensitive claim about children conceived in rape: He suggested that they simply do not exist. More specifically, he said of pregnancy from rape that “[i]t seems to me, from what I understand from doctors, that’s really rare . . . . If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.” Akin thereby claimed that there is a biological mechanism in women that precludes conception from rape.
Though some female animals have a biological mechanism like this, as discussed by Cornell Professor and Justia columnist Michael C. Dorf here, the human female does not. Representative Akin’s suggestion therefore displayed a combination of startling ignorance about human reproductive biology, and deplorable indifference to the plight of rape victims who find themselves carrying their attackers’ progeny. The context of Akin’s remarks, as readers may recall, was the debate over whether women who conceive in rape should have legal access to an abortion. Akin’s answer was no, in part because, to his mind, the category of such women represents a virtual null set.
Given that such women—women who conceive as a result of rape—do in fact exist, a different question has arisen and recently received critical commentary in a number of news articles and editorials: Do men who father children through rape, and whose victims take their pregnancies to term, have parental rights vis-à-vis those children?
Put another way, the question is whether a rapist might go into court and demand visitation with, or even custody of, a child whose existence is the product of the rapist’s sexual assault on the child’s mother?
Part I of this column will examine this question. Part II will examine how and why many state laws appear to support rapist visitation.
The Particular Kind of Situation Involved
This column leaves aside the question whether rapists, as a general matter, should necessarily lose (or never have) parental rights. That is, if a person has committed a rape and has also, separately, conceived children through consensual sex, then some would argue that the person should have visitation rights with his children (and perhaps even custody, under some circumstances). Others would reject this view and say that committing a violent crime ought always to mean that one forfeits one’s parental rights. In this space, I will not weigh in on this controversy.
In contrast, the particular scenario I will discuss here involves a man who rapes a woman and—through that rape—causes his victim to become pregnant. Once pregnant, the victim in the scenario decides to take the pregnancy to term (or finds herself pressured into doing so). The victim then gives birth to the child, and decides to remain his or her parent, rather than surrendering the child for adoption. It is the relationship between that child and the man whose violence against the child’s mother led to the child’s conception that is the subject of this discussion.
The Affirmative Argument
Some people might take the position that any man who fathers a child, no matter what the circumstances, ought to have parental rights vis-à-vis that child, at least as a presumptive matter. For such people, the argument supporting their view might go something like this:
If a man parents a child, then he is the only reason that the child exists. As such, he has an automatic and pre-legal, biological, and moral interest in playing a role in the child’s upbringing. Under very limited circumstances, he may either waive or forfeit that right. For example, if he gives up the child for adoption, or if he donates sperm to a sperm bank and signs a waiver, then he waives his parental rights. Alternatively, if he abuses the child or neglects him or her, then he may thereby forfeit his parental rights. In other words, if he either willingly relinquishes his status as a parent or behaves in a manner that demonstrates a lack of parental fitness, his parental rights may be properly suspended or even terminated.
Conceiving a child by committing a rape against the child’s mother, however, does not necessarily fall into either category. It certainly does not represent a voluntary decision by the man to give up his parental rights, since the rape is, by hypothesis, the only reason that there is a parental relationship in which to have rights in the first place. And as to demonstrating one’s lack of fitness to parent, this depends on an assessment of the person as a whole, including his violence against the child’s mother, but including, as well, the possibility that the father has changed, that he was psychiatrically-impaired at the time of his sexual attack, and/or that his dangerousness is limited in scope and does not extend to the child.
Some might argue, then, that the fact that a man conceived a child in rape is a relevant, but not dispositive, factor in assessing his parental fitness and entitlements, just as his other misconduct directed at the child’s mother or a third party would be relevant but not dispositive in this assessment. Indeed, if the father refrained from all violence from the moment after the rape until the present time, it might be accurate to say that all of his violence against the mother preceded the existence of the child and accordingly has less bearing on his parental fitness than it otherwise might.
This argument concludes that contributing genetically to the creation of a child triggers the existence of parental rights that entitle the father to the enjoyment of those rights in the absence of strong countervailing factors (or voluntary relinquishment). The rape of the child’s mother prior to the child’s existence might constitute such a factor, but one would have to analyze the question on a case-by-case basis to make an informed determination.
Rejecting the Affirmative Argument
I find the affirmative argument above unconvincing. Rape is an extreme violation of its victim’s bodily integrity. It therefore cannot legitimately be understood to give rise to legal entitlements on the part of the rapist.
To take a far-less-disturbing property analogy, imagine that a person trespasses into his neighbor’s garden, notwithstanding the neighbor’s having made it absolutely clear that the trespass is unwelcome. Imagine further that the trespasser plants an apple tree in the neighbor’s garden. The property owner has no obligation to share with the trespasser the apples that eventually grow from this tree. The invasion involved is, of course, categorically far worse when we are talking about the rape of a sentient victim, rather than an intrusion on inanimate property. It would thus be all the more outrageous to allow a rapist to gain parental entitlements not in spite of, but because of, his act of sexual assault and battery against a woman.
In this regard, consider the evolutionary account that some have provided for the phenomenon of forcible sexual intercourse, a type of violence that appears not only among humans but among nonhumans as well. Though one can try to explain rape culturally and socially, there is at least a strong possibility, given the ubiquitous nature of this offense, that some people (and some animals) are genetically predisposed to be undeterred (or perhaps even positively motivated) in their sexual designs by the fact that their desired partner does not want sex. To put it differently, some number of male animals, both human and nonhuman, are willing to force mating on an unwilling female.
As an evolutionary strategy, rape provides the rapist’s genes with the opportunity for survival, regardless of whether the rapist’s traits are independently desirable to a sought-after female. Again, this account of rape is not intended to explain the phenomenon across the board, but it does offer a potential evolutionary “payoff” for such extremely anti-social behavior—the perpetuation of one’s genetic line.
The argument in favor of a right to abortion in the case of rape is appealing to many people, I think, in part because of the “unjust enrichment” of the rapist’s genetic line that forcible pregnancy following forcible rape necessarily entails. We can understand the pregnant rape victim as feeling doubly victimized—because she has not only suffered an outrageous violation of her bodily integrity in the rape itself, but she now may also experience herself as unwillingly enduring an enormous physical and emotional burden that will facilitate the rapist’s propagating his genes into the next generation. One can understand the systematic rape by an invading army of the enemy’s wives and daughters as an exemplar of this model: the invading nation has now appropriated the bodies of its enemy in the service of forcibly propagating its own genetic line. Some have described this practice, which occurred in Rwanda and in Bosnia, for example, as a form of “ethnic cleansing.”
Even if one does not support a right to abortion under these circumstances, one can nonetheless reject a rapist’s claim to parental rights as to the child conceived in rape. (Our concern here is the rape victim who does not have an abortion but who instead bears the child of rape.) And unlike the question of embryonic or fetal rights that trigger pro-life opposition to abortion in the case of rape, the question of parental rights once a rape victim has decided to bring the child to term is a question about the guilty man’s entitlement to a relationship with his offspring, not the innocent embryo’s or fetus’s entitlement to life. The evolutionary reward, in other words, may be an undesirable but incidental effect—for a pro-life advocate—of the zygote’s right to life. In contrast, the social reward that the law may confer, of a relationship with a born child whose existence is the result of rape, is a direct and intentional protection of the rapist’s interests.
How do state laws handle rapists’ claims of parental entitlements? I will consider that question in my next column, which will appear on December 19 here on Justia’s Verdict.