Below is a segments for a larger analysis of rights of the limited protections of women who become mothers through rape. You can find the full article here.
Giving Birth to a “Rapist’s Child”: A Discussion and Analysis of the Limited Legal Protections Afforded to Women Who Become Mothers Through Rape
SHAUNA R. PREWITT*
* Georgetown Law, J.D. 2009; University of Chicago, A.B. 2004. © 2010, Shauna R. Prewitt. I would like to thank Professor Jane H. Aiken for her tireless hours of feedback on this Note and for her stimulating seminar on motherhood and criminality in which earlier versions of this Note were developed. This Note is inspired by and dedicated to Isabella, who has always been worth it.
Approximately 25,000 women become pregnant through rape each year. In response, many states have passed special laws, devised streamlined proce- dures, or both, to aid pregnant women who seek abortions or wish to place their rape-conceived children for adoption. However, few states have passed laws to aid the large numbers of raped women who choose to raise their rape-conceived children. Without such laws, in most states, a man who fathers through rape has the same custody and visitation privileges to that child as does any other father of a child. Moreover, as a result of this legal void, raped women and their children are left to face substantial and poten- tially terrible consequences. This Note argues that the absence of these laws stems from the societal images and other rhetoric concerning the pregnant raped woman that depict raped women as hating their unborn children and viewing their rape pregnancies as continuing their rape experience. These societal constructions have created a biased “prototype” of the pregnant raped woman and of the prototypical rape pregnancy experience by which all pregnant raped women are judged. Women who raise their rape-conceived children depart from the prototype and are, as a result, viewed with suspicion. Legal protections, such as alternate custody rights, are then denied to them because, being viewed as “imposter” rape victims, it is thought that there is nothing special about these women or their conceptions requiring any change in the manner in which custody and visitation determinations are made.
Pregnancy from rape1 occurs with “significant frequency.”2 Of the estimated 12% of adult women in the United States that have experienced at least one rape in their lifetime, 4.7% of these rapes result in pregnancy.3 Therefore, based on a 1990 study estimating that 683,000 women over the age of eighteen were raped in that year,4 conceivably 32,000 rape-related pregnancies occur annually.5 A separate study conducted in 2000 estimated that, given the decline in the incidence of rape, 25,000 pregnancies following the rape of adult women occur annually.6
Preventive Health Measure, 19 AM. J. PREVENTIVE MED. 228, 228 (2000). The number of rape pregnancies that occur each year may be substantially higher given that both studies excluded adolescents from their consideration. “Approximately 30% of rapes involve women under age 18. [Although f]ecundity among very young adolescents is not as high as that of adult women . . . , adult
It is difficult to determine with certainty the outcome of the approximately 25,000 to 32,000 rape-related pregnancies that occur in the United States each year. One study found that 50% of women who became pregnant by rape underwent abortions, 5.9% placed their infants for adoptions, and 32.3% of raped women kept their infants.7 Another study, conducted in a separate year, found markedly different results, concluding that 26% of women pregnant through rape underwent abortions.8 Of the 73% of women who carried their pregnancies to term, 36% placed their infants for adoption, and 64% raised the children they conceived through rape.9
For the women who conceive through rape and seek abortion—who represent approximately 26% to 50% of the women faced with rape-related pregnancies— the law has carved out a “rape exception” for access to abortion, requiring that state and federal funds be used to pay for the abortions of qualifying raped women.10 Moreover, many states’ laws require hospitals to offer emergency contraceptives to raped women in order to prevent rape pregnancies.11 In addition to passing special laws to aid pregnant raped women who seek to abort their pregnancies, many states have devised streamlined procedures for the termination of parental rights of the father when the pregnancy was the result of rape and the raped woman wishes to place her child for adoption.12 However, few states have passed special laws to aid the large number of raped women who choose to raise their rape-conceived children. Without such laws, a man who fathers a child through rape has the same custody and visitation privileges regarding that child as does the father of a child not conceived through rape. Moreover, as a result of this legal absence, raped women and their children are left to face substantial and potentially terrible consequences.13
The purpose of this Note is to examine the legal response to women who become pregnant as a result of rape. Specifically, it asks why more than two-thirds of states have failed to pass laws restricting custody and visitation privileges of rapists over their rape-conceived children. Part I discusses the legal and extralegal issues that arise when raped women decide to give birth to and raise their rape-conceived children. It suggests that the failure to pass laws exclusive to this population of women is surprising in light of the significant consequences to these women’s lives.
I. WOMEN WHO CHOOSE TO RAISE THEIR RAPE-CONCEIVED CHILDREN: A LIFETIME TETHERED TO THEIR RAPISTS
As already noted, a significant percentage of raped women choose to raise the children they conceived through rape.15 Under most states’ laws, a man who fathers a child through rape has the same legal rights to custody and visitation in regard to that child as does any other father of a child due to the absence of any laws restricting or terminating such rights; as a result, many raped women face significant consequences following their decisions to raise the children they conceived through rape. They may be forced to share custody privileges of their children with their rapists, to ensure their rapists’ access to their children, to foster their rapists’ relationships with their children, and, in some cases, to make joint decisions about their children’s welfare.
Although there have been no studies analyzing the number of rapists who seek custody of their rape-conceived children, anecdotal evidence demonstrates its occurrence. One raped woman states,
I was raped in [North Carolina] and the rapist won “[j]oint” custody. Torment does not come close to describe what I live. . . . [The courts] have not only tied and bound me to a rapist, but also the innocent child that was conceived by VIOLENCE! [The rapist’s] violence has earned him even more control over my life.16
Another wrote, “I was raped . . . and the rapist has been taking me to court for 5 years for the right to see his son. . . . I am being tormented to death. I just want to die . . . .”17
Although no studies document the mental health impact on raped women who continue to have contact with their rapists, by analogy to the delayed recovery of women who prosecute, it seems likely that women whose child- custody arrangements force continued interaction with their rapists also would experience delays in healing. Furthermore, given that 66% of raped adult women—when asked within one week of the incident—fear offender retaliation and being raped again,(35) forcing a woman to repeatedly face her rapist, or reminders of him, is likely to impede her recovery process. Moreover, raped women who are required to share custody and visitation privileges may be unable to undertake some of the steps raped women have found necessary to move forward and heal. For example, many raped women seek recovery by changing residences,(36) and such a step is one of many important components of raped women’s healing processes.(37) However, women enjoying primary custody privileges often are required to go before a judge to request permission to move and may be denied altogether the ability to both retain primary custody of their children and to relocate to other cities.(38)
The forced interaction with their rapists, and the consequent inability to heal, also may affect raped women’s parenting abilities. Most raped women suffer from symptoms of one of the various forms of Post-Traumatic Stress Disorder (PTSD),39 and nearly one-third of all raped women develop rape-related post- traumatic stress disorder (RR-PTSD).40 In order to treat PTSD and RR-PTSD, women must alleviate stress, which may “involve avoid[ing] any thoughts, feelings, or cues which could bring up the catastrophic and most traumatizing elements of the rape.”41 Women who suffer from PTSD and who are unable to adequately treat their illness may “experience uncontrollable intrusive thoughts about the rape” and “may relive the event through flashbacks, during which [they] experience the traumatic event as if it was happening now.”42 Moreover, they may suffer from social withdrawal,43 have “no interest in their children” or “in their jobs,”44 engage in “general unresponsiveness, detachment or estrange- ment from others,”45 and may “exhibit a kind of irritability, hostility, rage and anger,”46 “particularly when the original trauma is . . . re-enacted.”47
Women with PTSD and RR-PTSD who cannot effectively treat their illness are likely to abuse drugs and alcohol in an attempt to cope with these symp- toms.48 Lack of effective treatment also “can often lead to . . . diagnoses such as anxiety attacks, social phobias, depression, obsessive-compulsive disorders, suicidal ideation, self-mutilation, … manic activity bouts, chronic fatigue syndrome and personality disorders.”49 Raped women who choose to raise their rape-conceived children, then, may be put in a Catch-22 if their rapists assert custody and visitation privileges. To effectively parent their children, these raped women must adequately overcome their victimization; however, in order to do that, these women must be able to escape from the “triggers” that make healing from their victimization impossible.50 Unfortunately, escaping from
Raped women also may fear for their children’s safety and health. Although no studies address the parenting abilities of rapists over their rape-conceived children, men who rape often have “serious psychological difficulties which handicap [them] in [their] relationships to other people,” resulting in “the absence of any close, emotionally intimate relationship with other persons, male or female” and “little capacity for warmth, trust, compassion, or empathy.”51 Moreover, men who rape often develop relationships that “are devoid of mutuality, reciprocity, and a genuine sense of sharing.”52 In addition, they engage in bad behavior and are “not deterred by such logical considerations as punishment, disgrace to . . . family, injury to [the] victim” or others.53 Given these characteristics, raped women, already having been victimized by their attackers, may fear for the safety of their children, as well as “the shame, fear, and possible abuse” their children may suffer in conjunction with the rapist- fathers’ visitation or custody.54
Aside from fearing the frequent access of their rapists to them or their children, raped women also may suffer from their rapists having greater control over the criminal case against them. Some rapists may capitalize on these women’s fear of sharing custody or visitation rights by manipulating them into dropping or failing to initiate criminal charges in exchange for an agreement to voluntarily terminate parental rights. In addition to avoiding prosecution, “[s]ome men who commit sex crimes have an inordinate need to control their female victims and may use visitation [or] custody . . . to punish the mother.”55 Thus, even those rapists who do not wish to exercise custody privileges may use that right to exert control over their victims, resulting in the “child . . .becom[ing] a pawn in the predator’s power game.”(56)
State Representative Sam Ellis, who aborting their rape-conceived children. During the 2007 session of the Maryland General Assembly, Planned Parenthood of Maryland and Maryland Right to Life joined together in arguing that the parental rights of rapist fathers ought to be restricted. Maryland Right to Life testified that “women who choose to carry their pregnancies to term ought to be supported and protected from unnecessary burdens . . . [and] women who choose to carry their pregnancies to term should never feel coerced into abortion because of social concerns.” Family Law, supra note 18 (statement of Cathy McLeod, Maryland Right to Life). Planned Parenthood agreed and testified that a woman pregnant through rape should be given the opportunity “to make the choice that is right for them [sic], without having to worry about how that choice may force her to interact at a later date with her perpetrator. If a woman chooses to carry her child to term it is important for her to feel supported and safe in her choice.” Id. (statement of Kate Canada, Director of Communications & Public Policy, Planned Parenthood of Maryland).
Finally, these raped women may be forced to do any number of things associated with joint custody, including sharing decision making about school- ing, healthcare, and religious upbringing, and may even be required to give their children the surnames of the rapist fathers.61 Thus, raped women and their children face substantial and terrible consequences as a result of these women’s decisions to give birth to and raise their children. Yet, despite these severe consequences, only sixteen states have determined that custody and visitation laws ought to be different for men who father through rape.62
~ 19.2% of raped women state that they need to confront feelings of resentment of the pregnancy
~ An analysis of the attitudes of the 21 raped women whose pregnancies resulted in births revealed that 68.75% of the women either had “a positive viewpoint to begin with” or changed, through the course of their pregnancies, “from negative to more positive images, attitudes, beliefs, or feelings about the unborn child,” and none of the raped women changed from a positive to a more negative image or attitude about the unborn child.162
~ 98% of rape victims never see their attacker caught, tried or imprisoned….”many scholars fault the “invidious societal stereotypes regarding rape victims,”(66) which have constructed a prototype of the rape experience and of the prototypical raped woman and offender that frequently fails to reflect reality.”
~ 8 out of 10 rapes are someone the women knows ( this is not at all to say that women are only raped)
~ 6 out of 10 rapes occur in the raped women’s home, home of a friend, relative or neighbor
~ 70% of women report no physical injuries
~ For 80% of white women and 90% of black women, their rapist is of the same race
1. For the purposes of this Note, the term “rape” refers to circumstances in which there has been sex without consent as claimed by the assaulted woman; it does not necessarily mean that the perpetrator has been tried and convicted of rape in a court of law.
2. Melissa M. Holmes et al., Rape-Related Pregnancy: Estimates and Descriptive Characteristics from a National Sample of Women, 175 AM. J. OBSTETRICS & GYNECOLOGY 320, 320 (1996).
3. Id. at 320, 322; see also NAT’L VICTIM CTR. & NAT’L CRIME VICTIMS RESEARCH & TREATMENT CTR., RAPE IN AMERICA: A REPORT TO THE NATION 2 (1992) (discussing a 1990 study finding that almost 13% of women have been victims of a rape).
4. NAT’L VICTIM CTR. & NAT’L CRIME VICTIMS RESEARCH & TREATMENT CTR., supra note 3, at 2. 5. Holmes et al., supra note 2, at 322. 6. Felicia H. Stewart & James Trussell, Prevention of Pregnancy Resulting from Rape: A Neglected
15. See Holmes et al., supra note 2, at 322; Sobie & Reardon, supra note 8, at 19.
16. Posting of Not avail. to RoguePundit: Rapists’ Rights Over Their Children, http://roguepundit.type- pad.com/roguepundit/2004/10/rapists_rights_.html (Nov. 28, 2004, 06:31 PST).
17. Posting of Zoompad to RoguePundit: Rapists’ Rights Over Their Children, http://roguepundit.type- pad.com/roguepundit/2004/10/rapists_rights_.html (Nov. 19, 2006, 18:00 PST).
18. Family Law—Denial of Paternity, Custody, and Visitation: Hearing on H.B. 648 Before the H. Judiciary Comm., 2007 Leg., 422d Sess. (Md. 2007) [hereinafter Family Law] (statement of Women’s Law Center of Maryland).
19. RoguePundit, Rapists’ Rights Over Their Children, http://roguepundit.typepad.com/roguepundit/ 2004/10/rapists_rights_.html (Oct. 3, 2004).
30. Family Law, supra note 18 (statement of Women’s Law Center of Maryland).
31. SEDELLE KATZ & MARY ANN MAZUR, UNDERSTANDING THE RAPE VICTIM: A SYNTHESIS OF RESEARCH FINDINGS 217 (1979).
32. Id. at 229. 33. JON G. ALLEN, COPING WITH TRAUMA: A GUIDE TO SELF-UNDERSTANDING 189 (1995). 34. MADIGAN & GAMBLE, supra note 20, at 99. 35. KATZ & MAZUR, supra note 31, at 218. 36. See id. at 223 (identifying studies that indicate at least 48% of women “change residences shortly after the rape”). 37. See id. 38. See, e.g., Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008) (affirming a family court’s decisiondenying a mother’s request to relocate with her child, over whom she enjoyed physical custody, to another state and further affirming that if the mother relocated, the child’s father would become the child’s custodial parent).
39. See Jacquelyne Morison, PTSD in Victims of Sexual Molestation: Its Incidence, Characteristics and Treatment Strategies, HYPNOTHERAPY ARTICLES, http://www.hypnotherapyarticles.com/ArtP/ articlep00007.htm (last visited Jan. 2, 2010) (stating that research indicates that most rape victims will exhibit some PTSD symptoms).
40. Id.; see also NAT’L VICTIM CTR. & NAT’L CRIME VICTIMS RESEARCH & TREATMENT CTR., supra note 3, at 7 (stating that “[a]lmost one third . . . of all rape victims develop PTSD”).
41. NAT’L CTR. FOR VICTIMS OF CRIME, RAPE-RELATED POSTTRAUMATIC STRESS DISORDER (1992), http://www.ncvc.org/ncvc/main.aspx?dbNameDocumentViewer&DocumentID32366.
42. Id. 43. Id. 44. Id. 45. Morison, supra note 39. 46. NAT’L CTR. FOR VICTIMS OF CRIME, supra note 41. 47. Morison, supra note 39. Morison notes that “[d]istress and anxiety reminiscent of the original trauma may be triggered . . . for example, by . . . the approach of a stranger.” Id. If the approach of a stranger triggers PTSD symptoms, it may be true that the approach of the woman’s perpetrator would also trigger these symptoms and may even magnify them. Moreover, even women who have recovered from PTSD can suffer from reactivated PTSD, which can be triggered “if the victim experiences additional trauma, is unsympathetically treated, [or] is unfairly blamed or stigmatized.” Id. Even “[a]n unsympathetic or unskilled therapist can inadvertently re-activate trauma—a situation which must be avoided at all costs.” Id.
48. See NAT’L CTR. FOR VICTIMS OF CRIME, supra note 41. 49. Morison, supra note 39. 50. A related argument is that rapists ought to be denied parental rights because, given the threat of forced interaction between raped women and their attackers, raped women may feel pressured into these triggers may range from difficult to impossible because, through the exercise of parental rights, most rapists are able to interact frequently with their rape-conceived children and, as a result, their victims.