Pregnant Through Rape, Women Are Forced To Share Child Custody With Their Attackers
There are 15 states in the U.S. that have no law in place to terminate a rapist's parental rights, leaving a rape survivor and their child vulnerable.
She was 16 when it happened. Christine* was staying with a relative during her school's Christmas break when a young man came over to hang out. She accepted a drink from him, she tried marijuana for the first time and then everything went dark.
"I woke up to him raping me. I was going in and out of consciousness and I couldn't make it stop," Christine recalled.
Overcome with guilt, Christine planned to tell no one what happened in a basement that December night. That is, until she found out she was pregnant.
"I had never seen my dad cry, until then. He was on the floor, balling his eyes out. Then he said, 'let's go to the police station,'" Christine said, saying she never considered abortion to be an option.
By then, it had been about six weeks since she had been raped and police told her it was too late to pursue charges against the young man.
"They basically said 'we'll do a police statement,'" she said. "We just let it lie. We did a police report, they had his information on file -- the little I could provide."
At 17, she became a mom. Young and in need of help to provide for her son, Christine applied for government assistance, unaware that doing so would start a chain reaction she couldn't undo.
"The state in turn sued the father for child support so they could recoup their money. I freaked out. I said 'I want to stop assistance. I'll work eight jobs if I have to, I don't want him involved,'" she said.
It wasn't long before she was slapped with a lawsuit. Her rapist was suing to exercise his parental rights.
Ellen* was older than Christine when it happened. At 22, she stayed over a fellow church member's house. He kissed her and when he tried to go further, she told him "no" and went into the living room.
His little sister was asleep on one couch and she dozed off on the other, quickly falling into a deep sleep because she had taken Xanax to treat her anxiety.
When she woke up, she instantly knew something was wrong.
"I felt different, I could tell. I could tell that something happened," Ellen said. "I started to question him about it. He said he told his sister to go upstairs. After that he climbed on top of me on the couch claiming he wanted to cuddle.
"He claimed I told him I wanted sex and I wanted sex right now and he said he couldn't talk me out of it... None of us really understood what this was, not until I went and talked to my bishop, who said 'you were raped.'"
When she found out she was pregnant, she went to the police.
"The investigator said he thought I was just a little Mormon girl who had had sex and felt guilty about it," she said.
She filled out a police report but no charges were filed against her attacker, who she was determined to keep in the dark about her pregnancy.
"He said he hadn't used a condom and he hoped I was pregnant so we would have to be together," she said. "He continued to contact me. He sent me message after message, (saying) 'I feel like dirt, I'm an awful person, I can't believe I did this.' He knew exactly what he did.
"I just knew I had to keep my son a secret. I was living in fear that this man knew I had a child."
Her little boy was a few months old when she received a text message from her attacker.
"It said 'my mom saw a picture of you with a baby and I think it's mine,'" Ellen said. "When I saw that text message, I couldn't breathe. I fell to the ground. I couldn't stop crying. I couldn't catch my breath."
She too would have to face her rapist in court.
It's arguably a rape survivor's worst nightmare: having to face their attacker and come in contact with the person who changed their life forever. But for the women who become pregnant through rape and decide to keep and raise that child, that nightmare can quickly become a reality.
There are 15 states** in the U.S. that have no law in place to terminate a rapist's parental rights.
Of the 35 states and the District of Columbia that have laws in place, 24 require that a parent be convicted of rape before their parental rights be considered for termination.
"For the subset of states that don't require a criminal conviction, they require 'clear and convincing evidence' of a rape conception. It's an enormously high standard of proof; it's the standard of proof that has been endorsed by the U.S. Supreme Court," attorney Shauna Prewitt told InsideEdition.com.
Many states also include carve-outs that make exceptions in certain instances, such as cases that are classified as statutory rape, said Prewitt, who faced her own alleged rapist in court when he tried to seek custody of the child conceived during the assault.
"All this stems from the Constitution of the United States, the 14th Amendment. The Supreme Court has read into that amendment that an individual has a fundamental right to parent," Prewitt said.
"It's a very important constitutional right and because of that, the Supreme Court has said that states can't interfere with a fundamental right unless they have clear and convincing evidence that a parent is unfit. It's up to every state to determine what an unfit parent is," she said.
But that determination does not always take into consideration the approximately 25,000 to 32,000 women who become pregnant through rape in the U.S. each year and those who choose to raise the children, advocates say.
Prewitt said that when a court typically determines what is in the best interest of a child when considering terminating parental rights, it looks at whether the child was hurt directly.
"Whereas in these cases, rape conception cases, the child is often being hurt indirectly," Prewitt continued.
Studies show that some women experience rape-related Post Traumatic Stress Disorder, or RR-PTSD, after an assault, she said, adding: "Now imagine co-parenting with your rapist. When women aren't treated properly or aren't able to control their PTSD, they're unable to control (other aspects of their lives). They may abuse alcohol, drugs, remove themselves from work. They become very insular. Imagine how fit of a parent that mom's going to be."
Christine and her attacker were ordered to go to mediation to “sort out their differences,” marking the first time in years that she would have to face the man who raped her.
“I was literally sick. We had to have this conversation about who we were as people and what we did. They treated my case as ‘he said, she said,’ even though I told everyone he raped me,” she said.
She met with him on her own to “get to know him” before bringing her son, then two, to meet his biological father.
The young mother drove two hours each way to meet him since he did not have a driver’s license and she did not want to be accused by officials of not making an effort.
“I didn’t know what would happen. I didn’t know if he would try to rape me again,” she said. “And if he could rape me, I didn’t know if he would try to kill me. But at the same time, I needed to protect my son, because his father was going to be able to take him right away.”
Visits were tense as Christine said she was forced to spend time at dinners, the zoo and in his home while her son spent time with his father and his family, who appeared to have no idea that he was a rapist.
“He just said my sons (friends) and my parents know we met at a party and that’s all they know. He never used the word ‘rape’ with me and he never said he was sorry," she said.
“I would feel like I was having an out-of-body experience. I wouldn’t sleep. I would have horrible headaches and horrible panic attacks. I didn’t know I had PTSD, and having to travel to go see him, be at his house, be forced to be around this guy who took so much away from me… I don’t think you can ever fully recover from it,” she said.
Christine was 19 when she became engaged to the man who is now her husband. When she told her son’s father the news, she said he stopped calling to see his son and now pays $75 in child support “occasionally.”
“Luckily I only had to go through it for about a year,” she said.
It’s a hope that Ellen holds onto—that her 11-month-old son’s father will lose interest—as she struggles to deal with having to face him every Saturday when she leaves her child with him.
“The judge gave him minimized visitation of my son. That process, going to court, was awful,” Ellen said. “The anxiety, the fear, the way the judge looks at you. He said ‘I don’t know if this is a case of rape, or if it is a case of regret.’ And there was nothing, nothing I could do.”
But she counts her blessings that her son’s father was not aggressive in court and only walked away with four hours a week with the child, as painful as they may be for her.
Though she sat through their visits at first, Ellen has since made an arrangement with a close friend who oversees the meetings.
“(Recently) his mother expected me to stay and have lunch with everyone,” Ellen said. “It’s disgusting. How could these people even consider that I want to sit there and stare at the man who raped me and watch him hold my son? But I have to be cordial.”
Having to face and communicate with the man who took advantage of her has left Ellen traumatized, she said. Before she started seeing a therapist, she thought she was "losing it," she said.
“It was affecting the way I parent," Ellen said. "I can’t even describe how angry I was and how alone I felt, because there are no laws here to protect me and my son from the man who raped me.
“(But) he’s already not showing up. I hope it’s just a matter of time before he leaves us alone… and then I can file for abandonment. It just sucks. It’s wrong. All of it is wrong. No one should have to go through this.“
“This is not a family, this is a felony.”
That’s the argument of Massachusetts-based attorney Wendy Murphy, whose client was ordered to go to family court to hatch out a co-parenting plan with her rapist.
Murphy’s client was 14 years old when she was raped by a 20-year-old man she met at a church youth group.
The man, Jamie Melendez, pleaded guilty to the rape in 2011 and was sentenced to 16 years’ probation and was ordered to pay $110 a week in child support to the victim. He in turn filed for visitation rights, arguing that if he has to pay child support, he should be able to see the child.
“The judge sentenced him after conviction to probation and as a condition of probation, he was ordered to go to family court and comply with the court’s order. We refused to go to family court and said ‘this is not a family, this is a felony,'” Murphy said.
“And four years later, we’re still litigating the case because perpetrators' rights’ groups... are heavily, heavily trying to influence the court to give convicted rapists parental rights.”
Rapists, in turn, Murphy argues, can then leverage those rights against a survivor to keep her silenced.
“In other words, ‘don’t report this to the police or (else) I will assert my fatherhood parental rights. Don’t tell the police, don’t testify against me and I’ll drop my request for visitation,'” she said. “My argument is, a convicted rapist, especially one who impregnates a child, has no business being bestowed by a court the privilege of fatherhood.”
While litigation is pending, Melendez has not been able to see his daughter. But Murphy said her client’s attacker “has the right until the child turns 18 to keep asking for more visits and more visits and more visits. So until his rights are completely terminated or the court rules convicted rapists have no authority to go to family court, ever … until that battle is won, we’re going to keep litigating.”
InsideEdition.com has reached out to Melendez's attorney for comment.
It’s a level of protection and advocacy Christine and Ellen said they wished they were afforded when they first took on their rapists.
“I asked him, ‘We don’t know each other. You didn’t have this kid with a girlfriend or a wife. Why would you even want to know him? Just leave us alone and go on with your life,’” Christine said. “He said ‘well I have a right. If I’m going to be paying child support on a kid, I want to at least know him.'
“I was not getting any help because the court system viewed it cut and dry," she said. "They keep emotion out of it.”
Ellen echoed Christine’s sentiments, saying: “I sat there like a waiting duck until I was served papers and it was awful. I countered with a (request for) a protective order and I was denied.
“The only law here to protect me is that he has to be found guilty of rape, but to be found guilty of rape, it has to be without any doubt. And how do I prove that? I chose to spend the night at his house; I chose to take that Xanax.”
It’s a damned-if-you-do-damned-if-you-don’t sort of situation, attorney Rebecca Kiessling said of the judicial process many women find themselves faced with when trying to get their point across.
“Some of these mothers want to say how frantic they feel, but they have to stay calm,” said Kiessling, who was born out of rape and advocates for rape survivor mothers and their children.
“(Judges) see a woman who is frantic and immediately, they are looked at as a nutcase,” said Kiessling, who was put up for adoption by her birth mother. “We just have to get these laws passed. And it should be bipartisan.”
Such a law may soon become reality in Iowa, where the House unanimously passed a bill on Monday that would give the court discretion to consider terminating a rapist’s parental rights.
Parental rights can be terminated if “the court finds there is clear and convincing evidence that the child was conceived as the result of sexual abuse" and the biological parent who was sexually abused makes such a request, the bill reads.
It was imperative to pass the bill when it did or it was likely to die, State Rep. Greg Heartsill, who sponsored the bill, said.
“It’s kind of the eleventh hour to make sure it can move forward,” Heartsill said hours before it passed, 95 to zero.
The bill—formerly known as H.F. 2386—will now be considered by the Iowa Senate, which must move it by Friday’s deadline.
Passing its first hurdle was not without challenges, as lawmakers considered adding carve-outs.
“In instances of marriage, or a relationship, that could cause some complications,” said Rep. Chip Baltimore, chairman of Iowa’s House Judiciary Committee.
“Another complicating factor in terms of relationship rapes, the wife says no, and there’s a rape that takes place anyway, but they have an ongoing sexual relationship, how do you know it was the rape that caused the conception and not one of the other instances?” Baltimore said. “That’s problematic.”
He also noted the possibility that allegations of rape could arise during a bitter custody battle.
“It doesn’t happen all the time, but we have to be aware that sometimes that does happen and it’s kind of hard to find the proper balance,” he said.
But Heartsill said it is the court’s job to consider gray areas.
“I think that’s something the court can look at and take into consideration,” he said. “We make laws that give a lot of leeway to our courts… and we let the court sort that matter out. That’s why I like the bill as it’s written currently.”
It’s not an uncommon fear among legislators that a law addressing the termination of a rapist’s parental rights would be abused, Prewitt said.
“I’ll hear ‘how do we know that a woman isn’t just going to cry rape in order to take custody rights away from a good man?’ There are multiple answers to that. There’s always potential for people to abuse laws, but our country has never been afraid of passing a law because there’s the potential to abuse it,” Prewitt said.
“We have to trust that our judges and our juries are equipped and capable to discern people who are telling the truth from people who are telling lies,” she continued. “The ‘clear and convincing evidence’ standard requires a woman to do a whole heck of a lot more than come in to court and say she’s been raped.”
The bill’s passing comes after the passing of the Rape Survivor Child Custody Act, a law signed by President Barack Obama on May 29 that incentivizes states to create or reform their laws to include the clear and convincing standard. Those that do become eligible for a 10 percent boost in funding through the Violence Against Women Act, which increases resources for survivors, officials said.
“Across the country, there are a majority of states whose laws are either completely insufficient or completely absent in ability for a rape survivor who has been impregnated by her attacker to terminate the parental rights of her attacker,” said Rep. Debbie Wasserman Schultz (D-Fla.), who co-sponsored the bill with Rep. Tom Marino (R- Penn.).
The law authorizes $5 million a year for five years through 2020 in the criminal justice appropriations bill to fund incentives.
“We’ve been working with many states,” Wasserman Schultz said.
States that include carve-outs are not eligible for the funds, she said.
“You do have a large percentage of rapes that occur with someone who was familiar to the victim. That required a lot of education and discussion to help people understand that rape is rape. Rape is never okay,” she said.
“This is not something that a woman does lightly, go to court,” she continued. “A woman should never have to face constant re-victimization by her attacker by being allowed to use the threat of visitation rights, custody rights and hold that over her head for the rest of her life. Legislators that are hesitant to change their state laws need to understand and wrap their head around (the fact) that rape is rape.”
It’s progress like the passing of the Rape Survivor Child Custody Act that spurs on Prewitt, who alerted Wasserman Schultz to the need for such a law.
“I think we’re going to get there. I think eventually, we’ll get all 50 states to have laws and eventually they’ll all be good laws,” Prewitt said. “What keeps me up at night more than anything, though, is the fear that even if we have these great laws, they won’t be able to provide the protection we want them to because of the stigma around rape and around women who conceive in rape.
“I can just say from experience I think the biggest barrier is rape stigma in general,” she said. “For whatever reason, there is deep suspicion around any woman who cries rape. I think it’s about changing the conversation."
"And when we as a society talk about pregnancy from rape, it's often in terms that is demeaning the child that is conceived through rape," Prewitt continued.
When a woman doesn't view the pregnancy as a burden or an extension of the rape, their motives are questions, she said.
"(For those) who say 'I see a little bit of hope and light and joy in this situation and I know that may be difficult for you to understand,' people will say 'you're not acting like a rape victim, so maybe, just maybe you weren't raped.'
"I think it's about getting people to recognize more and more in the case of rape, rape isn't often the case of a stranger in the dark," she said.
Now 11 years old, Christine’s son asks more and more about his biological father.
“I haven’t explained it to him yet,” she said. “But he’s starting to ask questions. ‘Mom, who’s my real dad? Do you know my real dad?’ I said not really, and he hasn’t brought it up since.”
Her boy has also grown to resemble his father.
“I definitely see characteristics. Different things trigger me. His dad loved the Green Bay Packers and would always wear a stupid jersey, and he (her son) wanted a Packers jersey for Christmas,” she said. “As much as I try to block out memories from that time in my life, there are somethings I can’t forget. Sometimes, seeing my son, I have flashbacks. I am constantly looking over my shoulder worried that I’ll see him (her attacker). I’m always worried that he’ll figure out where we live, put two and two together and try to kidnap my son."
And she lives in constant fear that her son will take after his father in more than looks, she said.
“I do have him seeing a child psychologist so they can help me look for signs," she said. "That does scare me. I’m a good parent and I hope that I raise him not to rape. But it’s a fear.”
Ellen is getting better at steeling herself when she sees her child’s father. But she still has days when it’s just too much.
“It does get easier each day. But then (her attacker) texts me and I’ll have a panic attack. I don’t know if that will ever go away. Last weekend, the entire time, I couldn’t stop crying. At least the anger is gone,” she said.
“My son is the best thing that has ever happened to me—I just don’t know what I’ll do when he gets older. How do you say ‘your father raped me, but here, go have fun with him’? I don’t know how to cross that line when I get there,” Ellen continued.
“Who would ever think that someone could get raped and end up pregnant? I never thought about it. But it does happen. And someone needs to educate these (legislators) who are creating laws that this does happen, and we need protection.”
*The women in this report asked to not have their real names used in order to preserve their privacy.
**The 15 states that, as of publication, have no laws in place to terminate a rapist's parental rights are Alabama, Arizona, Georgia, Indiana, Iowa, Kansas, Maryland, Minnesota, Mississippi, Nebraska, New Mexico, North Dakota, Virginia, Washington and Wyoming.
States that require a conviction of rape to terminate parental rights are Alaska, Arkansas, California, Delaware, Hawaii, Kentucky, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah and West Virginia. D.C. also requires a conviction to terminate parental rights.
No conviction is required to terminate parental rights in Colorado, Florida, Idaho, Illinois, Louisiana, Missouri, New Hampshire, Oklahoma, South Dakota, Texas, Vermont and Wisconsin.
Some states include carve-outs in their laws.
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