Arizona is about to enact a law that would make it easier for women to terminate paternity rights if they are impregnated as the result of a rape.
The new law, which takes effect Sept. 29, would end those rights without requiring a criminal conviction of a rape or assault, using the highest civil standard of “clear and convincing evidence” instead.
“Clear and convincing evidence is evidence that is highly or substantially likely to be true,” said Sacha M. Coupet, a family law professor at Loyola University Chicago School of Law.
In other words, a rape or assault case does not have to have been charged by law enforcement, tried and decided in a criminal court.
The analogous criminal standard would find the defendant guilty beyond a reasonable doubt, but civil cases are different. Clear and convincing evidence “isn’t quite a tangible ‘thing’ as much as the way in which the quantity and quality of evidence — in the aggregate — supports an underlying claim. So, yes — in the case of alleged sexual abuse, a court could very well find that sexual abuse occurred on the basis of the victim’s testimony in combination with a police report, medical records, and the testimony of other witnesses,” Coupet said.
This aligns with the federal law regarding terminating the paternal rights of rapists.
For survivors such as Darcy Benoit, who says she was raped by a former boyfriend, that could make a difference. Benoit had fallen down the stairs and fractured her back in three places, leaving her incapacitated. She said her former boyfriend came over one day to bring her an iced tea and then forced intercourse.
“I couldn’t fight him off,” she said.
Although she had medical records documenting her condition before and after the alleged assault, Benoit said she was unable to get the police to open a rape case.
About a year after her son was born, his biological father demanded parental rights.
“He sued for custody. Boom, he got it, because he’s a father in Arizona,” Benoit said.
Benoit hopes the new law will allow her to finally sever ties with the man she says attacked her.
In 2016, Arizona terminated all parenting rights for someone convicted of sexual assault for any child resulting from the attack, the standard that remains in place for many states. This didn’t apply to women like Benoit, whose alleged attacker was never charged, much less convicted.
That’s a problem, because less than 1 percent of rapes end in a conviction, according to the nonprofit advocacy group the Rape, Abuse and Incest National Network, which examined Justice Department National Crime Victimization Surveys from 2010 to 2014 and other federal data.
With this legislation, Arizona joins a growing number of states — Alaska, Colorado, Florida, Georgia, Hawaii, Indiana, Iowa, Maine, Maryland, Michigan, Missouri, Texas and Wisconsin — in adopting the civil standard and not requiring a criminal conviction for rape to sever rights for alleged rapists who impregnate their victims.
The conversation takes on a renewed relevance as the debate over access to abortion is revived in the United States. On Sept. 1, Texas’s Senate Bill 8 went into effect as the most restrictive abortion ban in the country, outlawing the procedure after six weeks, even in cases of rape or incest.
Almost 3 million women in the U.S. have had a rape-related pregnancy, according to the Centers for Disease Control and Prevention. Every year, between 17,000 and 32,000 such pregnancies occur in the U.S., according to the National Conference of State Legislatures.
The changes in how states set standards for terminating the rights of alleged rapists have largely resulted from advocacy by survivors such as Analyn Megison. In 2003, Megison, who worked as a special assistant on women’s policy for the Louisiana governor, said she was raped by an acquaintance who forced himself into her home in Baton Rouge.
Her attack was brutal and she said she blacked out. When she regained consciousness, she was bleeding and bruised but did not realize she had been raped until she learned she was pregnant, she said.
Megison chose to have and raise the child as a single mom. At one point during her pregnancy, her alleged attacker broke into her home again, pointing a gun at her belly, and chasing her onto the roof.
While he was charged with assault and battery and witness intimidation, the rape case remained an open sex crimes case at the police level in Baton Rouge, Megison said.
After Hurricane Katrina, she moved to Florida, and four years later the man she says attacked her demanded custody of her daughter. Because he had never been convicted of rape, Florida had no mechanism to prevent him from having custody. After winning a two-year custody battle, and armed with a law degree, Megison fought to have the standard for sexual assault or rape in a custody case to be the “clear and convincing evidence” standard, which was passed in 2013.
“I felt I had a responsibility to do something about it,” Megison said. “I knew this was so rampant everywhere. And it’s really America’s dirty little secret going on in these courts, all over the country.”
She now works in the financial sector in Phoenix and continues to advocate for other states to adopt the “clear and convincing evidence” standard, including the recent victory in Arizona.
Her daughter, Alaraby, now 17, wrote in support of the bill to Arizona Gov. Doug Ducey (R). “My whole life my mom has fought to make these changes because she loves me,” she wrote. “Good dads are not rapists and no child should be forced into that.”
Megison had previously connected with Shauna Prewitt, another lawyer raising a child conceived from a rape and formed a now-defunct nonprofit, Hope After Rape Conception.
Prewitt brought the issue to the attention of Rep. Debbie Wasserman Schultz (D-Fla.) to work toward a federal law to change the standard.
In 2015, the federal Rape Survivor Child Custody Act, became law as part of the Justice for Victims of Trafficking Act, allowing the mother of a child conceived in rape to seek to terminate the parental rights of her alleged attacker, using the civil “clear and convincing evidence standard.” As of 2016, states that do so are able to receive federal funds for their Stop Violence Against Women and Sexual Assault Services Programs.
Before the federal law passed in 2015, only six states had laws to grant women “comprehensive access to the legal options they need to avoid custody battles with their rapists,” Wasserman Schultz wrote in an email.
Currently, 32 states allow the termination of parental rights of rapists who conceive a child, while others have some restrictions in place, Wasserman Schultz said. The laws vary from state to state, which can complicate an already complex situation, especially if a woman was assaulted in one state but then moves to another.
Other complications can arise from a charge not being brought before the statute of limitations to prosecute sex crimes runs out in the states that have them, or if the accused strikes a plea bargain to a lesser crime, say second-degree instead of first-degree rape.
“Many of the remaining states still require the conviction of the sexual assault to restrict parental rights, and state legislators need to reform this antiquated rule — including in situations of domestic violence and marital rape. We cannot allow the law to keep women and children chained to a rapist,” Wasserman Schultz said.
Even if states do change the laws, it does not necessarily mean that women who survive sexual assault and have children automatically gain full custody, but it does give them more options.
“Even with these new laws, it’s not even close to leveling the playing field, because you have to prove by clear and convincing evidence of rape,” Joan Meier, a law professor at George Washington University Law School.
As the lead author of a widely cited 2019 national study of custody decisions involving alleged child abuse or domestic violence, Meier noted that women often lose custody cases involving an abusive father.
Women alleging any kind of abuse lost custody to the alleged abuser three times more often than fathers who alleged a mother was abusing the children, according to the study’s findings, Meier said.
“There is a mistaken belief that it’s not a level playing field for men, and that we need to give them more protections and more rights, when in fact, the empirical reality is actually that it’s not a level playing field for women,” she said.