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Monday, June 10, 2019 1:00 am

Alabama allows parental rights in rape, incest cases

Emily Wax-Thibodeaux | Washington Post

When a young woman came to the Family Services of North Alabama office last year for help with trauma, saying she had been raped by her stepuncle when she was 15, rape crisis advocate Portia Shepherd heard something that “killed me, shocked me.”

The stepuncle, who was getting out of jail after a drug conviction, wanted to be a part of their child's life. And in Alabama, the alleged rapist could get custody.

“It's the craziest thing I ever heard in my life,” Shepherd said. “On the state level, people were shocked. How could Alabama even be missing this law?”

Alabama is one of two states with no statute terminating parental rights for a person found to have conceived the child by rape or incest, a fact that has gained fresh relevance since its lawmakers adopted the nation's strictest abortion ban in May. That statute even outlaws the procedure for victims of sexual assault and jails doctors who perform it, except in cases of serious risk to the woman's health.

While the Alabama abortion law has been challenged in court, abortion rights activists fear it could reduce access to the procedure, forcing rape victims to bear children and co-parent with their attackers.

Last month, Alabama lawmakers considered a bill that addressed ending parental rights in cases of rape that result in conception, but the Legislature removed that language, limiting the law to cases in which people sexually assault their children. Democratic state Sen. Vivian Figures and other lawmakers believed the language that was removed could have excluded boys who were assaulted, because they cannot get pregnant. Figures said she didn't know Alabama lacked a statute preventing rapists from gaining custody of their offspring, but told the Washington Post that she now plans to introduce a bill in the next legislative session.

“It's just flat-out ugly, unfair and even dangerous to these mothers and children,” said Figures, who voted against the state's abortion ban.

Some anti-abortion activists have been at the forefront of efforts to pass such laws. Rebecca Kiessling, an anti-abortion family attorney who was conceived by rape, said the laws protect women who choose to keep their pregnancies.

“Maybe they wouldn't abort or give the child up for adoption if they knew they were protected,” she said.

Protecting rights

Laws terminating parental rights in rape cases have raised controversy.

Ned Holstein, board chair for the National Parents Organization, which advocates for shared parenting after divorce, said that allowing family courts to sever parental rights based on rape accusations is “an open invitation to fraud.”

“Taking a person's child away is a grievous act,” he said. “And if it is done to an innocent parent, you are also denying the child a fit parent forever and putting her into the sole custody of a ruthless parent who is willing to fabricate a heinous accusation.”

Even if a person is convicted of rape, “there is merit on both sides of this issue, and we have no position on it, either way,” he said of his organization.

'Clear, convincing'

In addition to Alabama, only Minnesota has no law terminating parental rights in rape cases. Many states adopted such statutes after Congress passed the Rape Survivor Child Custody Act in 2015, granting additional funding to help sexual assault victims in states that allow courts to end parental rights when there is “clear and convincing evidence” that a child was conceived by rape.

More than half of the 50 states use the “clear and convincing evidence” standard, according to an analysis by the National Conference of State Legislatures using Justice Department data.

That standard – defined as evidence that is “highly and substantially more likely to be true than not” – is also used in cases of child molestation, neglect or habitual drug use.

For example, the Kansas Court of Appeals in 2012 terminated a man's parental rights to a child who was born to a mother he allegedly raped behind a locked bathroom door at a party. Several witnesses said they heard her say, “No, no, no. Stop it,” and other protestations, leading the Kansas civil court to determine there was enough evidence of rape to sever custody without a conviction, according to court documents.

The “clear and convincing” bar is lower than the “beyond a reasonable doubt” standard used in criminal trials, and some argue it might prompt false rape claims during divorce proceedings involving child custody.

This spring in Wyoming, lawmakers stripped “clear and convincing evidence” from a bill and instead passed a statute that allows termination of parental rights only after a rape conviction.

“We have a criminal justice system for a reason, and that protects the rights of the accused,” said Wyoming state Rep. Mike Greear, a Republican.

Nearly half of states require a rape conviction to terminate parental rights. Several others allow either standard.

Activists argue that the conviction standard is too high, given three out of four rapes in the United States go unreported, according to an analysis by the nonprofit advocacy group Rape, Abuse and Incest National Network, which used an annual study conducted by the Justice Department. While the data is debated, RAINN estimates that less than 1 percent of all rapes lead to criminal convictions with incarceration.

Jessica Stallings, who said she was 12 when her mother's half-brother began climbing into her bed at night. Before she turned 18, she had endured four pregnancies. The first ended in miscarriage, and one son died of a disease more likely to occur in cases of incest.

Then her family forced her to marry her uncle, she said. Stallings later fled, and a court deemed the marriage illegal because of a “familial relationship.”

She built a stable home in Fort Payne, Alabama, for her sons, now 15 and 12. But in the winter of 2017, she discovered that she was not yet free of the man she calls “Uncle Lenny.” Despite DNA tests that proved incest, he maintained parental rights to the boys and fought Stallings for visitation. A judge ruled he was entitled to see them for three days during Christmastime.

Her uncle – Lenion Richard Barnett Jr., 39 – could not be reached for comment.


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