Lawrance Bernabo and Jennifer Martin-Romme
There are a lot of ways you can lose your parental rights in Minnesota. You can lose them if you commit murder, or if you’re a drug addict, or if you abuse your child—even if you violate the Uniform Code of Military Justice—but your rights as a parent are safe and sound if all you did was rape the child’s mother.
Minnesota is one of only seven states that have no explicit legal protection for children conceived during a sexual assault, or for their mothers. This puts Minnesota very far behind the times. Twenty states (plus the District of Columbia) have laws allowing for the termination of a convicted rapist’s parental rights. Most of those laws passed in the 1970s and ’80s, when the “divorce boom” following no-fault divorce prompted states to develop rules for child custody disputes—and to carve out a few exceptions to the usual preference for joint custody.
Initially, 30 states allowed for the termination of parental rights if the father was convicted of sexual assault. Trouble was, only about 40 percent of rapes are reported and only 20 percent prosecuted, according to the Bureau of Justice Statistics. About 14 percent of those prosecuted are convicted and, of those convicted, about two-thirds spend an average of eight months in jail.
Other sources place the number of unreported rapes as high as 90 percent and the number of prosecutions as low as nine percent. (The Bureau of Justice’s report includes a section on how many victims took “self-protective measures” to prevent the rape—a factor that does not appear in the agency’s reports for most, if not all, other crimes. The BJS then proceeds, with no apparent irony, to estimate how infrequently rape victims report.)
Then, in 2012, Chicago attorney Shauna Prewitt wrote a letter to Congressman Todd Akin in response to the Missouri representative’s remarks that, “If it’s a legitimate rape, the female body has ways to shut that whole thing down,” meaning that a raped woman cannot become pregnant, which is biological nonsense.
In 2004, during her senior year in college, Prewitt was raped—in Akin’s state of Missouri, no less—and she conceived as a result. She chose to have the baby, but when she attempted to file charges against her assailant, he countersued her for custody.
Prewitt’s letter roused an unexpected ally: The pro-life movement, which latched onto her description of the “unimaginable joy” she felt at the birth of her daughter. There is a stereotype, Prewitt told CNN, “that all pregnant, raped women hate their unborn children.” By 2013, Congress was debating bipartisan legislation to curtail the parental rights of rapists.
In 2015, Congress passed the Rape Survivor Child Custody Act, which pledges money to states that pass laws denying paternal rights if there is “clear and convincing evidence” that the child was conceived during a sexual assault. Nine states reduced their standard of evidence (bringing the number that still require conviction down to 21). Fourteen other states passed some kind of protective measures.
“One challenge that we’ve run into is that, if there’s been no conviction, how do we know a sexual assault occurred?” says Caroline Palmer of the Minnesota Coalition Against Sexual Assault. “Yet we know sexual assault has one of the lowest conviction rates of any crime.
"What we’ve run into in family law court is a real reluctance to take away parental rights with clear and convincing evidence, even though it’s only one step below ‘beyond a reasonable doubt,’” which is the standard for criminal conviction.
This reluctance by the courts is also somewhat inconsistent. In cases of abuse, neglect, or drug abuse, Minnesota courts already use the “clear and convincing evidence” standard for termination of parental rights.
“Another issue is child support. Can you collect child support in these situations? If the mother is on assistance, the state wants a way to get reimbursed.”
There are still a few avenues open to mothers who have been raped, even in Minnesota. Courts must consider the “best interests of the child” when making custody decisions. While they are not required to limit parental rights due to sexual assault, judges could opt to use the “best interests” clause to do just that.
In addition, when an unmarried woman has a baby, paternity can only be established via court action. (If she is married, her husband has presumptive paternity unless she or another man initiates a court challenge.)
“Minnesota Statute 257.541 basically says that if the mom is not married at the time of the birth, the father has no parental rights,” says Sarah Helwig, the Self-Help Program Attorney at the St. Louis County Law Library.
“I suppose a judge could [grant custody and/or parenting time in a sexual assault case], but how can that father—that sperm donor—if he’s a rapist, what judge is going to give him custody?”
Hennepin County District Court in Minneapolis, for one. The Minnesota Court of Appeals, for another.
In 2003, Heidi Hilliker filed a petition in Hennepin County, alleging that Steven Miller was the father of her child, but seeking sole physical and legal custody on the grounds that she conceived during a sexual assault.
Both claim that they met at a bar and left together for Hilliker’s home, where they engaged in sexual activity. Both claim to have been too intoxicated to remember it. The district court awarded Miller liberal parenting time, and the appeals court upheld it.
The case is not particularly clear-cut. Hilliker, for example, claimed that Miller gave her herpes, for which Miller tested negative. However, the appeals court ruled that even if the child were conceived during a rape, Miller would still have rights to custody and visitation:
[W]e have no occasion to confront respondent’s claim that conception of a child through nonconsensual contact automatically precludes a grant of parenting-time rights. Even given the circumstances surrounding the child’s conception, there is adequate evidence to permit the district court’s ultimate finding that liberal visitation is in the best interests of the child.
Minnesota could pass a law tomorrow terminating the parental rights of rapists, but it would encounter one enormous loophole in state law: Marital rape is still legal in Minnesota. Minn. Stat. 606.349 carves out a specific exemption to first, second, third, and fourth degree criminal sexual conduct, in which consent is not a factor if the parties are married or cohabiting.
It is a crime if there was also non-sexual violence involved, but the question of the victim’s consent only applies to parties who are not married or living together.
“For example,” wrote Minnesota attorney Deborah England in a paper for Nolo.com, which provides plain language explanations of the law:
...in response to his wife’s refusal to have sex with him, a husband might threaten to testify...that she is an alcoholic and unfit mother. If she relents and “agrees” to sex because of this threat, the husband couldn’t be convicted of sexual assault. But if the pair were unmarried, the threatening man could be convicted of sexual assault through coercion. Even where the victim-spouse (or partner) is incapable of consenting due to mental or physical incapacity or impairment (and the assailant knows the victim is incapacitated or impaired), the assailant who hasn’t used physical force can use the spousal exemption to avoid conviction...Historically, the law viewed wives as having consented for all time to sex with their husbands by entering into the marital contract. [This exemption] is a holdover of that view.
Pass all the laws you like restricting the parental rights of rapists, but if they’re living together, no legal rape occurred. “Cases have come up,” says Palmer, “where the victim was on medication and was too incapacitated to consent. It’s really wrong. It’s rape. It’s not consensual.”
But she adds that the marriage exemption did have more of a rationale than simply a holdover from wife-as-sexual-property. The previous language of the criminal sexual conduct laws raised issues about the sexual autonomy of persons with developmental disabilities.
The subject was hotly debated among disability advocates, some of whom argued that those with mental retardation, autism, Down’s Syndrome, etc. are perfectly capable of consenting to sex. Others argued that while that may be true, their ability to indicate consent could still be used against them in a culture that is uncomfortable with sexual expression by the disabled. “It wasn’t just an excuse,” says Palmer. “The concerns were real.”
Palmer supports an option to terminate parental rights in sexual assault cases, as well as repealing the marital exemption for rape, but she points to even larger factors at work. “A whole other issue is reproductive choice, where they’re being forced to carry to term or they’re being forced to abort. There are situations where it’s intrafamilial and they’re being forced to have the baby.”
In one North Carolina case, a rape victim wanted to put the baby up for adoption, but was required by state law to first get permission from the father, who would only agree to it if the mother did not testify against him on the rape charges. She did not testify.
Wisconsin is among the states where, in addition to abandonment, parental disability, child abuse, and incest, sexual assault is grounds for termination of parental rights. Wis. Stat. 48.415 states:
Conception as a result of sexual assault...may be proved by a final judgment of conviction or other evidence produced at a fact-finding hearing under s. 48.424 indicating that the person who may be the father of the child committed, during a possible time of conception, a sexual assault.
If the conviction or other evidence specified in par. (a) indicates that the child was conceived as a result of a sexual assault in violation of s. 948.02 (1) or (2) or 948.085, the mother of the child may be heard on her desire for the termination of the father’s parental rights.
Among Wisconsin’s definitions of sexual assault is statutory rape, which can range from clearly predatory behavior to otherwise-consensual teen sex.
In a paper for the American Bar Association, Moriah Silver argues for a statutory rape exemption, using the 1996 case of Peña v. Mattox to illustrate.
Ruben Peña was 19 when he impregnated 15-year-old Amanda Mattox. Peña was arrested and eventually pleaded guilty to criminal sexual abuse of a child. Although Mattox insisted their sexual encounters were consensual, her parents took her out of state to give birth and immediately placed the baby up for adoption.
Peña sued for deprivation of parental rights and lost on the basis of a precedent prohibiting individuals from “profiting” from their criminal conduct:
In other words, Ruben should not be rewarded for having committed a crime by receiving parental rights. The Mattox Court goes on to express concern that a criminal could use parental rights to pressure the victim’s family not to press criminal charges.
Peña appealed to the Seventh Circuit and won.
Interestingly, the Court explains that the maxim should yield when the wrong is trivial and cost of righting it would be great...[T]he father was not seeking merely to benefit from his wrong-doing but, more importantly, to assume the duties and responsibilities of supporting the child.
The National Conference of State Legislatures estimates there are 17,000 to 32,000 rape-related pregnancies each year in the United States. Among victims of reproductive age (12 to 45 years), the rape-related pregnancy rate is five percent—or at least it was 20 years ago. The last available data, published in the American Journal of Obstetrics and Gynecology, is from 1996.
The same study found that 32.4 percent did not know they were pregnant until the third trimester. Over 32 percent chose to keep the infant, while 50 percent underwent an abortion, and 5.9 percent placed the infant up for adoption. Nearly 12 percent miscarried.
“I don’t know that it happens too often,” says Palmer. “But survivors should have the option” of not raising their child with the man who raped them.