It seems unthinkable – that a rapist could actually seek and be awarded custody of the child their crime created. Right now, the law in Michigan allows it unless the person has been criminal convicted. But the Michigan Senate has just passed a bill that would allow rape victims to terminate their rapist’s parental rights directly and close the book on that traumatic and tragic event once and for all.
Let’s be clear. Rape is not about sex. It is about power, control, and domination of another person. But rape can and does result in some women conceiving, giving birth to, and raising the child of their abuser. I cannot imagine the difficult decisions those women face in choosing whether to keep that pregnancy.
What many women don’t realize, though, is that by choosing to give birth to the child, they open the door to their rapist continuing to victimize them for the next 18 years of their lives. For the men whose primary motive behind their crime is domination, the ability to bring a victim back to court again and again, shows that they still have the power to ruin their victims’ lives.
It sounds harsh, even inhuman, but it happens. Even without a rape conviction, divorces arising out of domestic violence often have long and arduous post-judgment custody battles as the abuser scrambles to regain control of the children and the custodial parent. This continual torment rips open a scab over a wound that would take years to heal under the best circumstances.
That’s why Senate Bill 629 is so important. It gives the victims of criminal sexual conduct a way to stop the power struggle by permanently and finally terminating rapists’ parental rights. The law amends the current Child Abuse and Neglect statute to add criminal sexual conduct resulting in conception to the list of reasons a person’s parental rights can be terminated:
“The court may terminate a parent’s parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following: . . .
(O) The parent has been convicted of or found in a fact-finding hearing to have committed criminal sexual conduct and that conduct resulted in the child being conceived.”
Without this added language, a rapist would need to be convicted of violating certain criminal sexual conduct statutes before a prosecutor or Department of Health and Human Services agent can ask the court to terminate his rights. There are lots of reasons why a person might not be convicted, including how difficult it is to prove sexual intercourse “beyond a reasonable doubt” and the prevalence of “acquaintance rape.” A rape victim may not want to send her attacker to prison or may fear the result of a failed prosecution.
The new law would give her another way to be free of her abuser, within the context of custody and parental rights. She may petition the court directly to terminate the rights of the rapist based on the lower, though still substantial “clear and convincing evidence” standard. It also takes away the specter of prison, since testimony will be given to a family court judge, and no criminal charges are required.
The Senate has passed the bill, it was referred to the House Judiciary Committee on December 15, 2015, with only 2 days left in the legislative session. Since the House was unable to act on it in those two days, the bill will need to be recreated next year. This issue is too important to be relegated to committee and allowed to die silently. In 2016, legislators need to make this an early priority to protect this state’s most vulnerable families. It is up to them to do the right thing in the new year.
Lisa J. Schmidt is a family lawyer at Schmidt Law Services, PLLC, in Ferndale, Michigan. She represents the victims of domestic violence and sexual assault in divorce and custody actions. If you know someone facing a difficult family law situation, contact Schmidt Law Services today for a free consultation.
Image Source: Senate Chamber, Michigan State Capitol, by Steve & Christine from USA, via Wikimedia Commons