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Del. Kathleen M. Dumais, D-Montgomery. (File photo)

MSBA angers backers of bill to deny rapists parental rights

ANNAPOLIS – The Maryland State Bar Association has angered supporters of legislation to make it easier for judges to strip parental rights from a mother or father who conceived the child through non-consensual intercourse.

MSBA drew the scorn with the tone of a letter expressing its due-process concerns with the proposed Rape Survivor Family Protection Act, which the House of Delegates is expected to consider this week after the bill cleared the House Judiciary Committee on Saturday. In its letter, MSBA stated it “believes that the bill is attempting to create a one-size-fits-all approach to rape as it relates to” termination of parental rights.

The Maryland Coalition Against Sexual Assault, a major supporter of the bill, mounted a petition drive Thursday on change.org with the stated purpose of communicating “loud and clear to the Maryland State Bar Association: I’m a lawyer and you are not representing me. You are not my MSBA.”

At least 100 people have signed the petition as of Monday afternoon, according to change.org.

Lisae C. Jordan, MCASA’s executive director and counsel, said Monday that she has resigned from the MSBA after a 20-year membership because of the organization’s position.

“It was clear that the MSBA was no longer speaking for me as a member or as a woman,” Jordan said. “I thought the bar association was promoting access to justice but in this case they’re not. I don’t want to support their efforts to deny rape victims access to the courts.

“There is a long history of failing to recognize the needs of women,” Jordan added, referring to the MSBA. “I thought we had made progress, but I was disappointed to learn the association has not.”

Del. Kathleen M. Dumais, D-Montgomery and the bill’s chief House sponsor, stated in a letter to MSBA that “it is true that [the bill] does not distinguish between types of rape leading to pregnancy.”

Dumais, vice chair of the Judiciary Committee, added that “pregnancy as a result of a rape in the first degree is no different than pregnancy as a result of rape in the second degree, the victim is just as pregnant.”

‘Procedural problems’

The MSBA, a voluntary, dues-paying attorneys’ association, defended its concerns with the legislation as first drafted, including protecting the due-process rights of individuals alleged, but in many cases not charged, with having committed rape and ensuring that termination of parental rights would require “clear and convincing” evidence that termination was in the child’s best interest and not merely a preponderance of evidence.

“Our problems with this bill have always been procedural and not philosophical and that remains so,” said Richard A. Montgomery III, MSBA’s director of legislative relations. “We weren’t distinguishing between degrees of rape. Rape is rape in all these situations.”

The petition’s proponents “pick a word or two or a phrase or two out of context and plug it into their own narrative,” Montgomery added. “We would hope that our partners in the legal community, most notably the local and specialty bar associations, when confronted with a document like this petition, would actually pick up the phone and call us and ask our position since the creators of the petition chose not to share it.”

The legislation, House Bill 646, would permit judges to remove an alleged rapist’s parental rights if they find by “clear and convincing evidence” that “non-consensual” intercourse occurred and the child was “conceived as a result of the act.” As amended, the bill also requires clear and convincing evidence, as opposed to a mere preponderance, that it is in the child’s best interest to terminate the parental rights.

The legislation, as amended, would also permit a judge to deny a termination-of-parental-rights request if the parents were married at the time of conception and were not separated by written agreement, protective order or by having lived separate and apart for the prior three months.

A complaint for termination of parental rights could be brought by the other parent, the child or the child’s guardian.

Jordan, of MCASA, said amendments to the bill “address all the issues that have been raised” regarding due process.

“Hopefully, the MSBA will revise its position and support the bill and support access to justice,” she said.

Montgomery said the association is “reviewing the bill as amended and will have a revised position within the next few days.”

Sixth attempt

The bill has failed in the House Judiciary Committee in five previous years amid concern that the alleged rapist would not receive adequate notice or a realistic chance to challenge the accusation in court.

Under the pending legislation, the alleged rapist must be provided with actual notice of the complaint or, failing that, the person making the complaint must show “good-faith efforts” were made to provide actual notice. The judge, who would ultimately rule on whether the attempted notice was sufficient, could order additional attempts at service but cannot require publication of the child’s name or complaining party.

The bill would require a scheduling conference to be held within 60 days of service.

In addition, the measure would bar any testimony given by the alleged rapist in the termination-of-parental-rights proceeding from being used in a criminal proceeding involving the same alleged act of rape, unless the earlier statements were being introduced to impeach his or her testimony at the criminal trial.

Similar legislation is pending in the Senate. Sen. Jamin B. “Jamie” Raskin, D-Montgomery, is the chief sponsor of Senate Bill 593.