By Gerri Elder
In Maryland, lawmakers are debating the issue of whether or not men who father children through the act of rape should maintain parental rights to the children. Currently in Maryland, men who have fathered children through rape do not lose parental rights and may petition the court for visitation or even custody of the child.
In Maryland's General Assembly this session, lawmakers are trying to strike a balance between fairness to rape victims and the rights of men who have been accused of rape. A bill is being considered that would allow judges to waive the parental rights of men who have been accused, but not convicted, of rape. The bill actually would allow judges to deny parental rights to men who have been accused of, tried and acquitted of rape in criminal court.
The bill is sponsored by Maryland Senator Jamie Raskin, a constitutional law professor at American University. Raskin believes that rapists should never have any paternity rights to their victim's offspring. Many people would agree with that, however, the bill not only terminates any parental rights of rapists, but men who have not been convicted of any crime. This has opponents of the bill concerned about due process and fair hearings for accused rapists.
A similar bill was passed in the Maryland state Senate last year, but died in a House of Delegates committee. The current bill faces opposition in the House Judiciary Committee where members are concerned about innocent men losing their children. Under the bill, a man can be accused of rape and indicted but found unanimously not guilty by a jury, yet still be stripped of his parental rights according to a report by the Baltimore Sun.
Despite all of these concerns, the sponsors of the bill are not willing to edit or amend the bill so that it would apply only to convicted rapists. They say that making a rape conviction mandatory would make the bill useless. The current bill would allow judges to deny a man parental rights and exclude him as the legal father of a child if the court is presented with "clear and convincing evidence" that the child is a product of rape. The "clear and convincing evidence" clause in the bill carries a lesser burden of proof than the "beyond a reasonable doubt" standard of proof in criminal court. With this logic in mind, a man who has been acquitted of rape could still lose parental rights to his child in family court under this bill.
According to the Maryland Coalition Against Sexual Assault, as of 2004, 21 states had passed laws to terminate some parental rights of fathers in cases of children conceived through sexual assault. The MCASA supports the legislation in Maryland and notes that about half of the states that have laws to take rights away from fathers accused of rape do not require a criminal conviction.
The legislation in Maryland arose out of a child custody case in 2005 involving a 14-year-old girl. Her 27-year-old mother was hospitalized after attempting suicide, and the court had to decide where to place the child. The mother of the child told social workers that she had conceived her child after being repeatedly raped by her stepfather.
The judge in the case found that under Maryland law, the father of the child had rights and his wishes needed to be considered in planning for the child's future. Fortunately, in this case, relatives were able to convince the man to withdraw his parental rights to the child. However, the case was enough to convince social workers and lawmakers that a bill was necessary to deal with the issue of paternity rights for accused rapists.