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As Published on Post-Gazette.com

Child Custody For Rapists?

November 28th, 2013
By Todd Spivak and Rebecca Canterbury

At the age of 21, during her senior year in college, Shauna Prewitt was raped. She became pregnant, opted to keep the child and had a baby girl.

Ms. Prewitt pressed criminal charges against her attacker. Her rapist responded by asserting legal custody rights over their child. Ms. Prewitt promptly withdrew her criminal complaint. Her attacker then followed suit by withdrawing his custody petition.

“When no law prohibits a rapist from exercising [child custody] rights,” says Ms. Prewitt, who is now a Chicago-based attorney and women’s rights advocate, “a woman may feel forced to bargain away her legal rights to a criminal trial in exchange for the rapist dropping the bid to have access to her child.”

Astonishingly, in nearly every state, men who father children through rape can assert child custody and visitation rights. Thirty-one states offer no restrictions whatsoever.

According to Ms. Prewitt, raped women who are required to share custody and visitation privileges with their rapists may never overcome their rapes. “Forcing a woman to repeatedly face her rapist, or reminders of him, is likely to impede her recovery process,” she says.

Pennsylvania ranks among states offering rape victims the “most protection” against rapists who later seek child custody privileges, according to recent media reports.

But how much protection does Pennsylvania actually provide?

“Pennsylvania is getting far too much credit in the popular press,” says professor Harry Gruener, who heads the Family Law Clinic at the University of Pittsburgh School of Law. “Pennsylvania really hasn’t provided much in terms of protection.”

Women’s rights issues have taken center stage in recent weeks following Missouri Rep. Todd Akin’s controversial comment that “legitimate rape” rarely results in pregnancy. Mr. Akin later apologized for the remark.

More than 1,000 rapes were reported across Pennsylvania in 2011, according to the FBI Uniform Crime Report. But the true number may never be known, as rape is widely considered the most underreported serious crime.

Moreover, the conviction rate for rape is significantly lower than for other serious crimes. Of every 100 rapes, only nine are prosecuted, only five lead to felony convictions and only three rapists spend a single day in jail, according to the Rape, Abuse and Incest National Network.

About 25,000 women become pregnant through rape each year, according to a study from 2000. About one-third of women who conceive by rape choose to raise the child, says Ms. Prewitt, who in 2010 published a scholarly article in the Georgetown Law Journal on the limited legal protections afforded to women who become mothers through rape.

Ms. Prewitt’s research revealed that more than two-thirds of states have failed to pass laws restricting custody and visitation privileges of rapists over their rape-conceived children. “Pennsylvania,” says Ms. Prewitt, “is one of the more protective states.”

But even Pennsylvania’s protections are limited.

Section 2511(a)(7) of Pennsylvania’s adoption law does not require termination of parental rights in cases of rape — it merely allows it. “The rights of a parent in regard to a child may be terminated” if “the parent is the father of a child conceived as a result of a rape or incest,” the law states.

Moreover, Section 2512(b) states that termination of parental rights can occur only if there is a stepparent willing to adopt the child.

In the 1981 landmark case Santosky v. Kramer, the U.S. Supreme Court characterized a parent’s custodial right as a “fundamental liberty” protected by the 14th Amendment. “Before a state may sever completely and irrevocably the rights of parents in their natural child,” the court held, “due process requires that the state support its allegations by at least clear and convincing evidence.”

Under Pennsylvania’s new child custody law, conviction for rape is one of the 30 enumerated criminal offenses that judges must consider when making custody determinations. But, again, judges have discretion whether to grant a rapist custody rights based on what is in the child’s best interests.

Pennsylvania’s custody law states that judges must consider criminal charges — not just convictions — when determining if a child-custody arrangement poses a risk of harm to the child.

“We’re not going to be stupid and give custody to a rapist,” says Allegheny County Common Pleas Judge Kathleen Mulligan, who has been assigned to the family division for nearly 20 years but has never encountered such a case.

But Ms. Prewitt says it can happen. For instance, a rape victim may be forced to interact with her rapist for months or even years if a custody hearing precedes a rape conviction. By the time the father is eventually convicted of rape, Ms. Prewitt says, a court may find that it is in the child’s best interests for the father to have custody rights because he has established a parental presence with the child.

In Pennsylvania, even a parent convicted of murdering the other parent may still enjoy custody and visitation rights so long as their child “is of suitable age and consents,” according to Section 5329(b) of the state’s custody law.

“So Dad could kill Mom, and a court could grant Dad custody if the child expresses a preference to be with Dad,” Prof. Gruener says.

In cases of rape, however, the child need not be “of suitable age” or consent.

The judge decides.