By Michael Collins
It probably will shock many that uber-progressive Maryland is one of a handful of states in which rapists have parental rights over children born as a result of their crime.
It probably will shock them even more to know that, for the ninth time, a bill to deny parental rights to rapists (in this case, HB428, the Child Conceived Without Consent – Termination of Parental Rights [Rape Survivor Family Protection Act]), died in the legislature on its final day.
Advocates of the proposed law want to strip parental rights from not only those convicted of rape, but those accused as well. For many, the prospect that a man could lose his parental rights without conviction violates the very notion of due process.
House Judiciary Committee Chairman Joseph Vallario, D-Prince George’s, said, “In the case where there’s someone convicted of rape, that’s certainly no problem with anybody. This bill does not require conviction.” Vallario continued that, “We’re trying to make sure that if we’re going to take some child away from the parent that he’s given all the safeguards.”
Still others have fretted about the potential for abuse of the law. Could a woman claim spousal rape during a nasty divorce? Could a woman who had sex and conceived a child after sharing a bottle of wine with her boyfriend later lodge a rape allegation against him for diminished capacity due to alcohol?
The bill’s sponsors worked hard to allay those concerns. First, the bill targets perpetrators of rape in the first degree — force or threat of force with aggravating circumstances — rape in the second degree — force or threat of force without aggravating circumstances — and incest. Also, it excluded married couples.
Alleged rapists would not lose parental rights due to an accusation alone. A petitioner seeking to terminate parental rights of an alleged rapist would have to provide clear and convincing evidence of rape to a judge in a civil trial. The judge would also have to rule that it was in the best interest of the child.
Provisions were made for legal counsel for the alleged rapist, as well as a prohibition for statements made in the civil case to be used against him in any criminal case.
Proponents noted that this bill would affect only a handful of cases per year.
The Senate’s companion bill, SB 574, was significantly weaker. It would have removed incest as a reason to deny parental rights of a rapist and diminished the protections against having the victim and child publicly identified. It also would have shortened the proposed statute of limitations from seven years to three.
Oddly, the Senate’s conference committee members were not named until the Friday before Sine Die, which was a short workday. Odder still was that no women were on such a significant conference committee. The Senate was not in session on Saturday, and the entire legislature was off on Sunday. Thus, this important bill did not go to conference until the last day of session.
Despite what appeared to be poison pill amendments in the Senate’s version, the conference was able to make progress. Unfortunately, the Senate did not read conference reports until after 10 p.m.—less than two hours before adjournment. It was not enough time to print and read the conference bill.
While frustrated at the handling of the conference committee, some of its advocates believe that no bill is better than the relatively weak Senate bill. And a few Republicans have enjoyed the schadenfreude of the Democrats’ “war on women.”
Who’s to blame? Well, Del. Vallario, who never was a fan of the bill, has been criticized for slow walking it, and Sen. Bobby Zirkin, D-Baltimore County, chairman of the Judicial Proceedings Committee, has been accused of mismanaging the conference committee.
But let’s not forget that Senate President Mike Miller is master of the Senate. Nothing moves without his say-so. Some now whisper that Miller delayed—and thus killed—the bill in retribution for the House failing to move on his pet bills.
For his part, Miller blames the House for talking the bill to death and has cynically — does he know any other way? — tried to use it as leverage for a special session to address medical marijuana licensing. At the same time, however, he has declared he will only accept the watered-down Senate version without amendment.
So, for another year at least, in Maryland, the perpetrator of a forcible rape or incest will continue to have parental rights of any child conceived through his crime.
I am hopeful, however, that the legislation will be re-introduced and, this time around, receive the respect that it deserves from the House and the Senate.
Michael Collins can be reached at firstname.lastname@example.org
Commentary is illogical. Even with evidence to support petitioner’s case, and a judge’s ruling against the alleged rapist, without conviction this would still be just an accusation. Thus if I am reading the article correctly, this bill would open a Pandora’s box of unjust witch trials, legally speaking. This could carry into other areas of accusations besides alleged rape cases.
I read your commentary in Maryland Reporter and thought you might be interested in an email I addressed to some of the advocates of the bill.
I disagree with your fundamental point about due process. I would go to the standard “preponderance of the evidence” standard from the bill’s “clear and convincing” standard. I could do some research and figure out if this is subject to a jury trial, but assuming that it is, I think you’ve got a real crap shoot on your hands trying to achieve any consistency of outcomes, particularly with the heightened standard.
I’ll spare you any more repetition. If you are interested, here are my views.
Here’s what I wrote:
I live in District 20 and I have just read the version of HB 428 that was submitted to the conference committee. I am appalled.
Although I cannot imagine that anyone opposes denying a rapist the right to interfere with his victim’s decisions raising the child, I could see really difficult issues. When I asked Senator Smith, he didn’t have the details at the tip of his tongue, so I begrudgingly read the bill. In particular, I was interested in procedures and collateral effects. I was also interested in how the bill would treat the father when he was also the husband of the victim.
The bill sucks on thoses questions.
1) How does the bill treat rapists who are married to their victim?
The answer is appalling. As I understand the bill that went to conference, a man who violated a protective order to rape his wife who has moved out and is living separately can not be denied parental rights even where the victim proves beyond a reasonable doubt that he violently raped her. An exception exists if the States Attorney brought criminal charges and convicted him.
Pardon me if it sounds as if some of the Senators really don’t believe that a husband could possibly rape a woman he is still legally married to. I have been an Assistant US Attorney and a local prosecutor who practiced bankruptcy law for 35 years and I PROMISE YOU that it happens. And I guaranty you that of all of the rapists in the world, the absolutely least likely to be convicted is the husband of the victim. Getting a prosecutor to prosecute a husband is nearly impossible and getting a jury to convict is even harder (which, generally, explains the reluctance of prosecutors.) Go visit a rape crisis shelter and ask anybody. The counselors, the wives who are staying there, even the unmarried women there will be able to tell you.
2) How does termination of parental rights affect child support obligations?
Unless I’m terribly confused, the answer is that the obligation to pay child support ENDS. Maybe even retroactively. In both the House and Senate versions.
Now why on Earth would they do that? If a man rapes a woman and creates a baby, he doesn’t have to support his child unless she is forced to raise the child with him?
How is rape a defense to payment of child support?
In my humble opinion, there are a whole bunch of (mostly) men who seem to think that a defense to paying child support was asserting a violation of his visitation rights or some failure of the custodial parent to raise the child the way he wanted. As I would have presumed that all of you knew, supporting your child is an obligation created upon creation of the child, not the admission price to Fathers’ Day at the zoo.
But, however much this reflects a tit-for-tat relationship between child support and visitation, it creates a dangerous incentive for a non-custodial father to see a way out of child support. If he raped the mother, she’s probably already and 9/10ths along the way toward never wanting to see his sorry ass again and if this bill passes, he can now see a path toward ending his obligation to his child: he can be so threatening and dangerous that he can point the way for her to get him out of her life at the cost of ending whatever begrudged support payments he has made.
There is no reason at all, no benefit to society, to ending the child’s right to be supported.
But that doesn’t even get it said. According to the National Center for Children in Poverty, 17% of all children in Maryland live in poverty and another 11% live in low income households. That’s the pathetic number of ALL children. But when you narrow that to children living in single parent households, the number rockets up to 60%!!!
I don’t know what percentage of rape victims are or can continue to be married. I would guess that it is LOTS of them. But however many it is, why would anybody want to cut off any avenue that helps any of them collect any child support from the child’s father? Why would it even be the mother’s RIGHT to cut off the obligation of the father to help support his child? The only answer I can think of is the detestable notion paying child support buys the father the right to insert himself into the lives of the mother and child.
3) Procedural Issues
Clearly, somebody was sitting around worrying about women falsely crying “rape,” (just not very loud.)
The bill as amended requires the victim to prove rape by “clear and convincing evidence.” This is not as high as in criminal cases, where the allegations must be proved “beyond a reasonable doubt,” but it is higher than the usual burden of “preponderance of evidence.” Now, I don’t see anything in the bill that says whether or not either party may demand a jury trial, but I’d be very nervous about trying this issue to a jury, particularly if they are going to get instructions about this standard of evidence.
Frankly, I’d be surprised if very many women file actions under this statute. There are some ways in which passing the bill in its present form might be worse for women and children than no bill at all, but I do trust you guys to do the best that can be done. I signed the “petition” in favor of passing a bill, but it REALLY needs to be improved.