by Amy Kerr Hardin
Having not written about the Michigan Senate for a spell, now is a good time to check up on them during their year-end rush. Though it’s not a lame duck session, the winter months are typically chock full of legislative odds and ends to sort through.
This week, we find a bill sporting a hair’s breadth of bipartisan support, but of profound importance to the narrow group it affects — victims of rape who have given birth as a consequence of the attack. The proposal, Senate Bill 629, would restrict convicted rapists from exercising parental rights over offspring resulting from their crime. One lone Democrat joined eight Republicans in sponsoring the bill, although the GOP motives behind it may not be as pure as the driven snow.
The reasoning goes like this: If social conservatives are determined to force rape victims to bear children, then they must protect them from being further terrorized by a perpetrator demanding custodial rights. After all, the far-right doesn’t wish to be seen in the same light as the Taliban. Heaven forbid!
Sen. Coleman Young II was the sacrificial lamb offered up by the Democrats to tag the proposal as “bipartisan.” Democrats, political animals themselves, likely didn’t wish to appear so cold and churlish as to not support this legislation.
The motivation of Michigan lawmakers to act now is, on the surface, not entirely craven. A new federal law, the Rape Survivor Child Custody Act, is designed to incentivize states to take legislative action through a federal grant program. But, there are victim’s rights advocates who are strongly critical of the federal law, raising concerns over the burden of proof that the sexual encounter was unwanted. A criminal law attorney, Wendy Murphy, told VICE News that the language in the federal and state laws will make it more difficult for victims to prove they’ve been assaulted:
Murphy said that the burden of proof should be the civil standard: preponderance of evidence. Instead, many states and the new federal law are enforcing the next-highest level of proof: clear and convincing evidence. If victims can’t prove the encounter was unwanted, their attackers can get parental rights, and then can avoid paying child support as well as have access to and control over the child, she said.
The Michigan proposal is unambiguous, requiring a rape conviction — leaving unreported incidents and cases that don’t result in a conviction wide open for continued abuse. The national statistics on the number of convictions are bleak:
Michigan, among other states, has allowed thousands of rapes to go uninvestigated. Just last year, Detroit started testing over 11,000 rape kits dating back to the 1980s found in an abandoned storage facility. They are but a small percentage representative of the national negligence of sexual assault investigation.
Is it really a thing though — rapists demanding parental rights? Sadly, the answer is yes. And Michigan is one of many states, among 20 or so, that leave women vulnerable to these kinds of legal and emotional assaults. Nationally, an estimated 30,000 women who become pregnant due to sexual assault each year opt to keep the baby.
In the case of rape convictions, the offender is often required to pay child support. In a tricky legal manuever to avoid payment, the rapist can leverage parental rights as a means to waive child support payments, among other demands. Another difficulty many women face is the requirement to gain permission from the biological father to place the child with an adoptive family. State-by-state these loopholes may vary, but the assault is ongoing for many victims.
The American Bar Association terms it “The Second Rape.” In a 2014 paper on the subject they characterized the trauma:
Women who choose to give birth to a child conceived from rape will spend a lifetime “tethered” to their rapist. Rape that results in a child is one of the only violent crimes that legally binds victims to their attackers, through the consequences of that violent act. This legal binding results from current parental rights, custody, and visitation laws. The right to have and raise a family is a fundamental right grounded in the Due Process Clause of the Fourteenth Amendment. Therefore, courts are reluctant to terminate parental rights, even in cases in which the child was conceived from rape.
A woman who is raped and conceives a child faces uniquely vulnerable circumstances whereby the initial act of violence results in an opportunity, created by law, for the rapists to continue to torment her. The law has created this opportunity; thus the law must end it.
It is disappointing that such horrific circumstances are not fully, or even minimally, addressed by Michigan’s proposed law. The standard should not require a conviction to protect victims of sexual assault. Senate Bill 629 is little more than political window dressing.
Shame on Michigan lawmakers, again.
