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Laura Wish Morgan

Imagine this: You are a woman who has been raped (forcible rape, date rape, statutory rape, whatever), and you become pregnant as a result. You decide for whatever reason, be it religious or other, that you wish to keep the baby. After the baby is born, the rapist petitions the court for visitation rights with the child. Or the rapist's parents petition the court for grandparent visitation rights. You want absolutely nothing to do with the rapist or his family. Can you exclude the biological father and/or his family from asserting custody/visitation rights with this child? Or imagine that you wish to give the child up for adoption. Can the biological father withhold consent to adoption as an unwed biological parent?

The common sense answer, at least to me, would be that rapists do not have parental rights, or if the law presumes that they do, then the law would equally presume that those rights should be terminated without the consent of the rapist. A number of states agree with this conclusion, but a number of states have failed to address the question, leaving open the possibility of rapists asserting parental rights.

The latest case to discuss this issue is Shepherd v. Clemens, 752 A.2d 533 (Del. 2000). There, the court concluded that when a child is conceived and born as the result of an unlawful sexual intercourse as defined in the code, the biological father shall not be permitted visitation. This does not violate constitutional principles. “No court has held that the mere fact of biological fatherhood that was the result of a conception during a criminal act and that is unaccompanied by a relationship with the child, creates an interest that the United States Constitution protects in the name of liberty.” See Lehr v. Robertson, 463 U.S. 248, 259-62 (1983). See generally Deborah L. Forman, Unwed Fathers and Adoption: A Theoretical Analysis in Context, 72 Texas L.Rev. 967 (1994).

Other states have similar statutory provisions. Alaska Stat. § 25.23.180 (1999) court may terminate parental relationship if child was conceived as a result of sexual assault, and termination is in the best interests of the child); Cal. Welf. & Inst. Code § 361.5 (West 1999) (reunification not provided to parent of child conceived as result of sexual assault); Conn. Gen. Stat. § 45a-717 (1999) (court may terminate parental rights of parent convicted of a sexual assault resulting in the conception of a child, except in certain cases of statutory rape); Idaho Code § 16-2005 (1999) (court may grant termination of parental rights as to a parent who conceived a child as a result of rape); 750 Ill. Comp. Stat. Ann. 50/8 (West 1999) (father's consent to adoption not required if he fathered child as result of criminal sexual abuse or assault); Ind. Code § 31-19-9-8 (1999) (notice to father of adoption proceedings not required if child conceived as result of rape, incest, or sexual misconduct with a minor); Me. Rev. Stat. Ann. Tit. 19-A, § 1658 (West 1999) (court may terminate parental rights of person who conceived child as result of crime involving sexual intercourse, unless court informed that the act was consensual); Mo. Rev. Stat. § 211.447 (1999) (biological father's guilty plea or conviction of forcible rape of the birth mother is conclusive evidence to termination his parental rights); Nev. Rev. Stat. § 125c.210 (1999) (father has no right of custody or visitation if child conceived as result of sexual assault unless consented to by mother and is in the best interest of the child); N.J. Stat. Ann. § 9:2-4.1 (West 1999) (see infra text accompanying this note); N.M. Stat. Ann. § 32A-5-19 (Michie 1999); N.Y. Dom. Rel. Law § 111-a (McKinney 1999); Okla. Stat. Ann. Tit. 10, § 7006-1.1 (1999) (stating that the court may terminate parental rights if the child was conceived as a result of rape); 23 Pa. Cons. Stat. Ann. § 2511 (West 1999) (father's parental rights may be terminated if child conceived as a result of rape or incest); S.C. Code Ann. § 20-7-1734 (Law Co-op. 1999) (father not entitled to notice of adoption proceedings if child conceived as result of criminal sexual misconduct); Wis. Stat. §§ 48.42, 48.415 (1999) (§ 48.42 stating that no notice is required to the father in a termination of parental rights case when the child has been conceived as a result of sexual assault or rape; § 48.415 stating that parenthood as a result of sexual assault or rape is grounds for involuntary termination of parental rights).

The Uniform Putative and Unknown Fathers Act of 1988 also addresses this issue. Unif. Putative and Unknown Fathers Act of 1988 § 5, 9B U.L.A. 91 (West Supp. 1999).

Those states that have not addressed the issue should do so, for to do so would be to guard the best interests of the child. A man who has raped a woman simply cannot be said to have established requisite parental rights necessary to accord him custody/visitation rights.

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