Shaunna Prewitt says that as as 21-year-old student at the University of Chicago, she was raped. She became pregnant, and decided to carry the pregnancy to term. Some months after her daughter's birth, much to her surprise, her alleged attacker (who was not charged) served papers seeking custody of the child.
Like most people, Prewitt had never considered the possibility that her alleged attacker could — or would want to — seek parental rights over the child that was conceived as a result of his crime. Alarmed by and suddenly aware of the limited legal protection afforded to mothers who choose to give birth to children conceived out of rape, Prewitt enrolled in Georgetown Law School, where she wrote a paper on the topic.
Nineteen states have laws restricting the parental rights of men who father through rape. But everywhere else, those men may technically seek parental rights, including visitation and custody.
Without statutes stripping rapists of parental rights, "courts don't feel they have the power to terminate," Prewitt explains. "They're left to delicately balance this presumption that both parents should be part of a child's life."
In some cases, says Prewitt, men can use this legal loophole as a kind of blackmail.
"We see a lot of cases where fathers through rape have sought custody rights, but I don't know that they want to have a sincere involvement in the child's life. They will say, if you don't pursue criminal charges, I won't seek custody." Given the choice between definitely maintaining sole custody of their child or possibly seeing their attacker convicted, most women will choose the kid.
Prewitt points out a few other ways men may manipulate these holes in the law to their benefit and potentially harming the mother and child. For one, it is common that the man might plead guilty to lesser charges such as battery, but not be convicted of the specific impregnating rape. A conviction requires "proof beyond a reasonable doubt," but parental rights may be terminated in many cases with "clear and convincing evidence." Prewitt notes that the rules for terminating parental rights related to other concerns are typically less stringent.
In the event that there is a conviction, there's also the fact that rape trials can be long, drawn out affairs, during which a father may be able to establish parental rights. If he is convicted, it is legally feasible he might retain those rights especially if the rape occurred in a marriage or relationship. This theoretically could help the mother at least financially, if he is forced to contribute, but some mothers might feel that money is tainted or unwanted.
Cases like these are rare and full of legal hurdles and intricacies, but that isn't Prewitt's concern per se — she wants to point out that these holes in the law demonstrate what she sees as an absence of legal protections and concerns to protect mothers who birth children conceived through rape.
There are a few other reasons that this topic is largely unknown and unexplored: If the women are blackmailed, it won't be documented because those conversations will occur only between lawyers or in private. And if a custody battle does occur in family court, the cases are also likely to not be public unless the parties are married.
"In many states, family court is open in the case of a divorce. But custody battles in the context of paternity are not public," said Aviva Orenstein, a law professor at the University of Indiana who has written extensively on rape and family court matters. "So we don't know how often this goes on."
As a result, there are few cases on the books. Prewitt's paper points to one custody battle involving a woman who says her child was conceived through rape, but the court did not find sufficient evidence to convict the alleged attacker and the father was granted partial custody. There are, however, numerous anecdotal cases of fathers petitioning for custody of children they allegedly fathered through rape. There is Prewitt's story, as well as posts from women on message boards who say this happened to them. Prewitt cites one such post from 2004, in which a woman wrote on a message board called Rogue Pundit: "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."
There's also a story about former Rep. Sam Ellis of North Carolina, who, according to a 2004 newspaper article in the News Observer, heard a woman call into a local radio show and explain that she had conceived through rape but wanted to give up the child for adoption. Without a conviction, the woman needed a father's signature — that of her rapist — to sign off on the adoption. He reportedly refused. According to the story, Ellis was then inspired to introduce a bill that restricted parental rights for rapists. Later, the article continues, "Ellis was contacted by two women, one in Fayetteville and one from Charlotte who was a student at UNC-Chapel Hill at the time. Both had gotten pregnant as a result of a rape — and had been intimidated by their rapists over parental rights." According to the account, one of the women is evidence of a blackmail situation — she alleges she was raped by a former high school classmate who said he would not seek parental rights if she agreed not to press charges.
According to a 2001 story in the Spartanburg Herald-Journal on the North Carolina bill (which passed in 2007), Ellis was "trying to address what he admits are rare but tragic cases where rapists attempt to invoke their parental rights after making their victims' pregnant."
The cases are anecdotal, but since 2010 (when Prewitt's paper was published in the Georgetown Law Journal), Delaware, Oregon, and Pennsylvania have also passed laws restricting the parental rights of convicted rapists. That makes 19 states, who for one reason or another, felt it necessary to pass such laws.
"This does not seem to be a major phenomenon, but reveals a quirk in the law that highlights how uncertain laws surrounding human relations are," Orenstein said.
But that quirk is what Prewitt wants to highlight. Rep. Todd Akin's recent comments suggesting that a woman cannot become pregnant from a "legitimate" rape have brought the topic of pregnancy through rape to the forefront, revealing, as Prewitt would say, how uncomfortable American society is with the topic. It's also revealed that very few legal protections are offered to women who mother through rape.