By Senator Jamie Raskin
People are always dumbfounded to learn this fact: under Maryland state law, men who impregnate women in the course of sexually assaulting them actually have full paternity rights in the children they conceive, including visitation, parenting time, and even custody rights.
You read that correctly.
If, heroically, a raped woman decides for whatever reason (sometimes it is religious or moral in nature) to bear a child conceived through sexual violence, her assailant will have the power to harass her with motions in court for visitation, custody and other forms of legalized family involvement. This happens in our state, where 1 out of every 8 women has been raped (that is in the neighborhood of 260,000 women), 5% of rape victims become pregnant (contrary to what you might have heard on the 2012 campaign trail), and a lot of women impregnated by a rapist decide to continue the pregnancy and bear the child.
But rape does not make a family, and the law should not add the perverse injustice of treating rapists like fathers to the injury of the original sexual assault.
The Maryland Senate has several times unanimously passed legislation which I introduced in the Senate (cross-filed with Delegate Kathleen Dumais in the House of Delegates) to permit courts, upon a motion by the victim, to deny all paternity rights to men who conceive in the course of a sexual assault. Several social workers and victims testified that this legislation is essential for women to be able to get on with their lives and to stop their assailants from harassing them.
But the House of Delegates Judiciary Committee has raised objections about the standard of proof in the bill.
The Senate’s position has been that a court considering such a motion must find by “clear and convincing evidence” that the biological father sexually assaulted the woman and that it is in the best interest of the child for the man to be excluded as a father. This standard of proof is higher than the normal civil standard—“by a preponderance of the evidence”—and is the standard used in all other family law contexts for the judicial termination of parental rights.
However, some of our critics, all of them well-intentioned, think that the more demanding criminal standard—of “beyond a reasonable doubt”--should be used instead. This standard should definitely be used—in criminal court when liberty is at stake. No one can or should be sent to prison for rape without a criminal trial under the “beyond a reasonable doubt” standard. Indeed, the difficulty of the criminal standard and the other rigors of policing, prosecution, and trial explain why a majority of sexual assaults are simply never prosecuted.
But our proposal deals only with the family law question. It would give the power to a family court judge only to decide whether there is “clear and convincing evidence” that it is in the best interest of the child to deny a sexual assailant the rights that only real fathers should enjoy. It has nothing to do with prison or criminal prosecution.
State family law should be on the side of women and their children who are working, against great odds, to recover their sense of security, decency, and stability after the trauma of sexual assault.
2013 is the year to make this happen. After a tawdry campaign season in which several politicians (none in Maryland, thankfully) trivialized the meaning of sexual assault and tried to undercut women’s autonomy, let us hope that the General Assembly, in this legislative session, will stand strongly with women victims and their families as they try to rebuild their future.
Senator Jamie Raskin is the Majority Whip of the Maryland Senate, the Chairman of the Montgomery County Delegation and a Member of the Senate Judicial Proceedings Committee. He introduced, along with Delegate Kathleen Dumais on the House side, legislation to give courts the power to deny paternity rights to sexual assailants who conceive as a result of the assault, legislation which passed the Senate in 2007 and 2008 but failed in the House of Delegates.
This article appeared in the Winter 2013 issue of Frontline