Image Credits: @zayyerrn on Unsplash (modified under Unsplash License)

Background

Shauna Prewitt is a successful Chicago attorney and advocate for the rights of rape victims, who has garnered the attention of many with her legislative advocacy. Shauna herself was a victim of rape in her final year of college at the University of Chicago. By virtue of this life-altering experience, she became pregnant with her daughter and made the powerful decision to raise her as a single mother; however, the battle was not over. After the birth of her daughter, Prewitt’s rapist filed for full custody. Despite his efforts, Prewitt was ultimately given full custody. She was inspired to continue her education at Georgetown Law and begin her career, utilizing her own experience to assist and advocate for other women who have undergone similar hardships 

At the time of Prewitt’s assault, in 2004, just 16 states had recognized the issue of child custody in the event of rape through legislation. In the years since, considerable awareness has been brought to this important subject. All states but Minnesota have at least one provision to address this matter. 

Current Legislation

In 2015, Congress passed the Justice for Victims of Trafficking Act. The new law addressed topics ranging from human trafficking and exploitation to missing children, allocating funds to support victims of trafficking, abuse, and rape. Title IV of this law is the Rape Survivor Custody Act, which details how the DOJ will, “…increase funding to states that have in place a law that allows the mother of any child that was conceived through rape to seek court-ordered termination of the parental rights of her rapist with regard to that child…” While many viewed the Act as a step in the right direction, several limitations that restrict the effectiveness of its enforcement remain. The Act is only truly effective in states where a criminal conviction is required to terminate parental rights and funding to address the issue of parental custody in rape cases is limited.

Approaches addressing the restriction or termination of parental rights cases in the event of rape vary significantly according to each state. Currently, 49 states have provisions that address parental rights in cases of rape and sexual assault; however, they differ in the extent to which they try the issue, regarding the degree of evidence that must be demonstrated. For example, some may include a small clause that briefly mentions the matter of custody in sexual assault cases, while others have an entire section of code dedicated to the subject. States’ policies also differ in terms of the  amount of evidence required to terminate parental rights: criminal conviction, clear and convincing evidence, or both.

Colorado has been particularly keen on protecting children from being put into rapists’ custody and thus has been a front runner in legislation to tackle the issue. The state has several provisions addressing child welfare and parental custody and requires clear and convincing evidence (CCE). In fact, Colorado law addresses the rights of rapists and sexual abusers regarding adoption and terminating parental rights. Colorado’s statute Title 19, also called the “Colorado Children’s Code,” discusses topics ranging from adoption to juvenile delinquency. The third section of the Colorado statute 19-5-105.5 asserts that if a child was conceived following an assault that resulted in the parent’s conviction, “…the victim of the sexual assault or crime may file a petition in the juvenile court to prevent future contact with the parent who committed the sexual assault and to terminate the parent-child legal relationship of the parent…” This legislative focus demonstrates Colorado’s commitment to protecting its youth and victims of rape. 

Until recently, Alabama code did not grant instructions for terminating parental rights in the event of rape or sexual assault. In 2019, the Alabama Legislature addressed the issue of parental rights following assault by passing Jessi’s law (Act 2019-512). A September 2019 announcement from the Alabama Secretary of State’s website, gave notice of the law’s passage during the 2019 Regular Session. Its inspiration stemmed from Jessi Kearley’s story. After being sexually assaulted by her father as a young child, Jessi became pregnant and was not removed from her father’s home or custody. Thus, the new law asserts that parental rights are not to be maintained following a conviction of rape, incest, or sodomy against the child in question. Prior to the Act’s passage, discretion to restrict or prohibit parental rights was left to the judges assigned to specific cases. While this act was viewed by many as a step in the right direction and an important protection for children, some are concerned about the requirement of conviction, attesting that many victims remain heavily at risk. Additionally, activists worry Alabama’s strict abortion stance may require victims to keep a child and potentially lose custody, in the absence of a conviction.

Today, 49 states have provisions that address parental rights in the event of rape and sexual assault. Though one state, Minnesota, advises that custody decisions should be made with the child’s best interests in mind, the state does not have provisions regarding rape. Thus, in the event a rapist can demonstrate they are the best parental guardian option, they can be awarded full custody of the child in question. Notably, Minnesota is one of few states that does not restrict where registered sex offenders can reside, whereas nearby states like Iowa, Michigan, and Illinois restrict how far a registered sex offender can live from schools and childcare facilities. However, at least, “three cities within the state have passed ordinances limiting where certain sex offenders can live.” It appears that within states where the custody rights of rapists are unclear, local authorities are taking their own measures.

Future Implications

In the future, activists are likely to shed more light on the issue of rapists’ parental rights and continue informing the American public of the tragic stories that have resulted from states’ lack of guidance in these matters. As the only state that has yet to pass legislation protecting the custody rights of rape victims, all eyes are on Minnesota. The collective change and increase in awareness seen in the past two decades are astounding, and most states, like Colorado, are continuing to make major changes. More restrictions on child custody are likely because of rape and more public awareness on the issue. It is also likely that greater attention will be brought to discrepancies in sex offender registry residency among states and further discussion regarding statutory rape (in the event a child results). A significant point of contention that will be discussed in the coming years is the limitations of the conviction requirement, serving as a barrier for many mothers to prevent their attackers from gaining parental rights.Several organizations are taking a stand to inform citizens and lobby for child protection in the event of rape and sexual abuse. One such organization, the Rape, Abuse & Incest National Network (RAINN) had a key role in the passage of the Rape Survivor Child Custody Act. According to the organization’s website, “RAINN supports laws and regulations that protect children from predators, facilitate the prosecution of perpetrators, and ensure that punishments and restitutions fit the severity of crimes.” Organizations and activists have made significant legislative strides in the last 15 years, but for activists like Shauna Prewitt, there is still a lot remaining to fight for.