I just saw this article from the Courthouse News Service about the ugly fallout of the rape, and resulting pregnancy, of a 14-year-old girl. The 20-year-old rapist has been convicted and placed on probation for 16 years. He has also been ordered to admit paternity and to initiate proceedings in family court, apparently to set child support and maybe even visitation. The victim brought suit, asking the Massachusetts courts not to force her to participate in legal proceedings involving her rapist.
It is deeply troubling to order a 14-year-old into a lengthy relationship with her rapist. But I don’t see a better outcome. Apparently Massachusetts law does not prohibit a rapist from seeking a parental relationship with a child borne of the rape. There is probably a procedure to terminate parental rights if a parent is unfit in a particular case; I know there is such a thing in Oregon. But the right to a relationship with one’s child is an important right, protected by the Due Process Clause of the Fourteenth Amendment, and I’m not sure whether a state could automatically terminate parental rights following a conviction for rape.
Further, in my mind, the case would be a lot different in the case of a violent rape between strangers, as opposed to statutory rape in which the victim was too young to consent legally but consented factually. Suppose that the defendant is eighteen and the victim is fifteen, or sixteen, and an enthusiastic participant? Or suppose the defendant is barely eighteen and the seventeen-year-old victim is one week younger? That’s still a crime in Oregon. Even a date-rape seems inadequate to prevent the father from trying to correct the error of his ways, including forming a relationship with and assuming responsibilities for a child borne of the rape. Further, the child might want the possibility of a relationship with his or her father.
Finally, there would be severe consequences of automatically terminating the parental rights of a man convicted of rape. Rape is often a he-said/she-said offense without much evidence besides the word of the participants to distinguish consensual and nonconsensual sex. I see enough rape prosecutions where the female victim has something distinct to gain if the male defendant is convicted; for example, she has an advantage in the custody dispute, or she can keep lawful residence in the US. I can’t envision a change to avoid some of those consequences, which are the result of perfectly reasonable policies. But I don’t want to add to a putative victim’s advantages following a criminal defendant’s conviction. If the father is an unfit parent (and rapists are surely unfit parents at a higher-than-average rate) then the mechanisms to restrict or terminate parental rights are already in place. What better reason for a woman to make a false rape accusation than to secure custody of a child?
Rape is a particularly ugly crime, and it is often supported by flimsy evidence. That’s already a recipe for a lot of bad outcomes. Of my own clients who received long sentences but whom I believed to be innocent (admittedly not a very long list) most of them had been convicted of a sex offense. Sex offenses carry long prison terms, longer supervision terms afterward, and sex-offender registries; adding a blanket termination of parental rights is a bad idea.
