Contrary to the wild imaginings of Rep. Todd Akin's fevered brain, women can and do get pregnant as a result of rape, a reality that's horrible enough to think about even without this extra bitter layer: some rapists successfully sue for joint custody of the children they have violently fathered. Though instances of rapists seeking or even obtaining joint custody are apparently pretty rare, only 19 states have laws restricting the parental rights of men who father children through rape — everywhere else, men are technically allowed to seek such rights, and even if they don't intend on actually being part of their child's life, rapists have been known use the threat of joint custody as a way to blackmail their victims into not filing criminal charges. Now would be a great time to pause for a few minutes and let the rage bile boil up through your esophagus like an agitated hot spring.
On Wednesday, Buzzfeed's Hillary Reinsberg took the unfortunate opportunity Todd Akin has offered all of us to offer an overview of how and why rapists sometimes choose to pursue joint custody in states where such legal loopholes haven't yet been closed. Reinsberg pulls most of her information from Shaunna Prewitt, who in 2010 wrote a paper at Georgetown Law School called "Giving Birth to a ‘Rapist' Child: A Discussion and Analysis of the Limited Legal Protections Afforded to Women Who Become Mothers Through Rape." Prewitt's research, however, isn't merely informed by distant, faceless statistics and legal jargon — as a 21-year-old University of Chicago student, she experienced first-hand what happens when a rapist decides to serve his victim with papers seeking child custody. (She also wrote about her experience for xoJane; the outlet posted the story on Monday. )
Prewitt hadn't ever considered that her attacker would seek joint custody of a child that had been conceived as the result of his violent crime. Unfortunately, it does happen because, according to Prewitt, "courts don't feel they have the power to terminate. They're left to delicately balance this presumption that both parents should be part of a child's life." Even if one of those parents raped the other, because that's how deeply ingrained the idea of a nuclear family is in this America's psyche. Rapists also have used the threat of joint custody as a kind of blackmail to avoid criminal charges. Explains Prewitt,
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.
Right about now (if you haven't started already), you should be gnashing your teeth, wondering how, how, how the fuck this could ever be allowed to happen. Prewitt notes that men can wriggle free from rape convictions by pleading guilty to a lesser offense such as battery. Because a criminal conviction requires "proof beyond a reasonable doubt," parental rights can be terminated with merely "clear and convincing evidence," meaning that rules for terminating parental rights are significantly more manipulable. Rape trials can be mind-numbingly long and destructive, and, if the rape occurs within a relationship or marriage, a rapist may nonetheless be able to establish parental rights to the resulting child.
The main reason instances of joint custody blackmail go largely unreported, explains Reinsberg, is that if women are blackmailed into dropping criminal charges against the men who raped them, those dealings usually occur between lawyers, behind closed doors. Custody battles "in the contest of paternity" are also not public information, according to Indiana University law professor Aviva Orenstein, so it'd be almost impossible to figure out how often this sort of blackmailing occurs.
Since Prewitt's paper was published in 2010, states such as Oregon, Pennsylvania and Delaware have passed laws restricting the parental rights of convicted rapists. Still, Prewitt's research reveals the legal vulnerability of women who give birth to children from rape, a sad and persistent reality that only compounds the fact that rape victims often have to endure not only the trauma of rape itself, but the subsequent trauma of having their sexual histories deconstructed by a ruthless legal system.
Mothers Battle Rapists' Custody Claims [Buzzfeed]
AN OPEN LETTER TO REP. AKIN FROM A WOMAN WHO GOT PREGNANT FROM RAPE [xoJane]
Image via Cora Reed/Shutterstock.