Sen. Jamin B. “Jamie” Raskin said he will try again next General Assembly session to pass legislation to make it easier for judges to strip parental rights from men who allegedly fathered children through rape.
The 2014 bill, dubbed the Rape Survivor Family Protection Act, passed the Senate on a 46-0 vote but died in the House Judiciary Committee without ever coming up for a vote.
“A rape does not make a family,” Raskin said Thursday. “The state should be on the side of a woman who decides to have the baby and rebuild her life. We should not give the assailant any legal space to continue to harass the woman and meddle in her life.”
Lisae C. Jordan, executive director and counsel of the Maryland Coalition Against Sexual Assault, said the organization’s Sexual Assault Legal Institute is representing about five mothers seeking court orders that would strip their alleged rapists of parental rights.
“It was extremely disappointing that [the bill] was not voted on this year,” Jordan said.
This was the fifth year such a bill has been introduced since 2007. Each time, it has passed the Senate but failed in the Judiciary Committee, generally over concerns that the accused fathers would neither receive adequate notice of the mother’s motion nor have a realistic chance to challenge the accusation of sexual assault in court.
Raskin and other supporters said they were willing to add more safeguards for the father, including notification methods “reasonably calculated to give actual notice” of the mother’s motion and accusation.
“This is where I thought we had successfully addressed the stumbling block,” said Raskin, D-Montgomery.
This year’s measure required publication of the notice in a newspaper and service to the father’s last known address, Raskin said.
The notice would not have required the mother’s name or other personal identifying information to prevent harassment. The hearing on the mother’s motion would have been held within 30 days after service of notice.
“We built in an elaborate set of procedural protections,” he added. “I really thought we had come to a meeting of the minds, but obviously there are some people who don’t like this legislation.”
House Judiciary Committee Chair Joseph F. Vallario Jr. defended the lack of a vote, saying Thursday that the legislation came before his panel late in the session and “needed substantial amendments” to protect the due process rights of fathers who had neither been convicted of rape nor even charged with the violent offense.
“There’s got to be a basis for the alleged rape,” said Vallario, D-Calvert and Prince George’s. “A person is innocent until proven guilty.”
Vallario said the committee is “certainly going to work with the advocates to try to reach a resolution.”
MCASA’s Jordan said the House committee did not vote on the measure, Senate Bill 411, even though a majority of its members and most of the House of Delegates cosponsored the House version of the legislation.
‘Clear and convincing’ standard
Under the Senate-passed measure, trial judges could have removed an alleged rapist’s paternity rights if they found by “clear and convincing evidence” that the man raped the woman and the child was “conceived as a result of the act.” (That is a lower standard than proof beyond a reasonable doubt, required for a criminal conviction.)
In reaching its conclusion, the judge would have had to consider any prior statement the mother made to law enforcement, child protective services, or any other party “deemed reliable by the court,” regarding the circumstances of the child’s conception.
According to the fiscal note accompanying SB 411, 31 states have enacted some form of legislation to address the rights of a parent who conceived a child through a forced sexual act. Of those, 26 states allow the victim to place a child up for adoption without the consent of the father, but only 14 allow for the termination of some or all of the father’s other parental rights if the mother decides to keep the child.
The issue of parental rights of rapists drew wide attention in 2009 when Chicago lawyer Shauna R. Prewitt said her elementary-school age daughter was conceived during a sexual assault. Prewitt wrote her story in a Georgetown University law review article, “Giving Birth to a ‘Rapist’s Child’: A Discussion and Analysis of the Limited Legal Protections Afforded to Women Who Become Mothers Through Rape.”