ANNAPOLIS – The Senate Judicial Proceedings Committee might be the last significant hurdle to long-stalled legislation to make it easier for judges to strip parental rights from a mother or father who conceived the child through non-consensual intercourse.
Sen. Robert A. “Bobby” Zirkin, the panel’s chair, said he has wants to make sure the bill protects the due-process rights of the parent alleged but not convicted, or perhaps never criminally charged, of having conceived the child via rape.
The proposed Rape Survivor Family Protection Act, which the Senate has approved in past years, will come before the Senate committee this month after having been passed by the House of Delegates on a 136-0 vote Monday night.
“Nobody thinks a rapist should have parental rights,” Zirkin, D-Baltimore County, said Wednesday. “[But] we must be sure that our law works and that it makes sense.”
Zirkin said he has concerns with the bill’s engrafting of criminal sexual-assault laws onto Maryland’s civil family-law statutes. He also wants to ensure that the parent accused of rape has adequate notice and a realistic opportunity to challenge the accusation and the motion to terminate parental rights in court.
Any bill that emerges from committee must be “legally correct,” Zirkin said.
His concerns mirror those that had stalled the legislation in the House Judiciary Committee in five previous years. The House panel approved this year’s measure, which supporters say was crafted and amended to address those concerns, on an 18-2 vote.
House Judiciary Committee Chair Del. Joseph F. Vallario Jr., D-Prince George’s, did not vote, as is his custom on legislation before the panel. The influential committee chairman has never been a co-sponsor of the bill.
Said Sen. Jamin B. “Jamie” Raskin, D-Montgomery, the Senate’s perennial sponsor of the legislation and Judicial Proceedings Committee member: “I’ve got my fingers crossed that we get it out this session.”
This year’s 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 would also require clear and convincing evidence, as opposed to a mere preponderance, that it is in the child’s best interest to terminate the parental rights.
A judge would be barred from terminating the alleged rapist’s parental rights if the parents were married at the time of conception unless he or she was convicted of nonconsensual sexual contact in the act that conceived the child.
The Maryland Coalition Against Sexual Assault called that provision, an amendment to the original bill, “troubling.” However, MCASA said such cases of marital sexual abuse are “very few and it would be very difficult to prove a case if the parties were married.”
MCASA added that “the value of passing the bill outweighs this concern.”
The bill would permit a complaint for termination of parental rights to be brought by the other parent, the child or the child’s guardian.
Under the legislation, the alleged rapist would have to be provided with actual notice of the complaint or, failing that, the person making the complaint would have to show “good-faith efforts” were made to provide actual notice. The judge, who will ultimately rule on whether the attempted notice was sufficient, can order other, additional attempts at service but cannot require publication of the name of the child or of the complaining party.
The bill would require a scheduling conference to be held within 60 days of service.
The measure would also provide that any testimony given by the alleged rapist in the termination-of-parental-rights proceeding be inadmissible in a criminal proceeding involving the same alleged act of rape, except to impeach his or her testimony at the criminal trial.