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Abstract

A pregnancy that results from a rape is referred to as a rape-related pregnancy (RRP). One of the primary issues surrounding RRP is that, unless terminated by a state family court, the rapist maintains the same parental rights over the child conceived through the rape as any parent would have over their child. Allowing a rapist to keep any level of parental rights is extremely problematic. It forces the rape victim to interact regularly with the rapist, exposes the conceived child to the dangers of a rapist parent, and creates an opportunity for the rapist to weaponize those rights in criminal and civil proceedings. To curtail these issues, states must enact statutes explicitly aimed at protecting victims of RRP. In 2015, Congress enacted the Rape Survivor Child Custody Act (RSCCA) to encourage states to adopt such a statute and give an example of sufficient RRP protections.

Forty-nine out of fifty states have enacted some form of RRP statute. Some states enacted RRP statutes which embrace the protections outlined in the RSCCA, but many have opted to provide weaker protections instead. Those weaker protections are insufficient because they are drafted too narrowly and exclude certain protections for certain RRP victims. For instance, some RRP statutes exclude specific subsets of RRP victims—like male rape victims, victims raped by their intimate partners, and victims raped under circumstances that make it more difficult to convict (e.g., when drugs are involved). Other statutes only terminate a rapist’s physical custody rights, requiring the rape victim to continue to see the rapist parent when making legal custody decisions for the child’s health, education, and general welfare.

This Comment draws from the RSCCA and various state statutes to propose example RRP statute provisions that remedy these insufficiencies and provide effective protections. The protections proposed in this Comment include: (1) gender-neutral language, (2) a clear and convincing evidence burden of proof, (3) terminating all of the rapist’s parental rights, and (4) terminating the rapist’s rights regarding the adoption of the child. States can easily adopt the provisions in their entirety or amend their existing statutes to remedy their specific deficiencies. RRP victims must endure the lifelong trauma that follows from a sexual assault and an insufficient RRP statute should not be a catalyst in expounding on that trauma—a problem this Comment’s proposal will curtail.

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