Should Rapists Have Parental Rights? Alabama Thinks So

By Kelly Barrett

In Alabama, a survivor of rape can be forced to co-parent with their rapist. Further exacerbating the problem of rapist parents are abortion bans passed in several states in recent years. Alabama’s 2019 abortion ban, which was preliminarily enjoined by a federal court as applied to pre-viability abortions, mixes with Alabama’s absence of laws allowing for termination of parental rights based on rape to create a toxic environment for rape survivors. Women should be free to choose to terminate their pregnancies, and rape survivors should not be forced to have their children and potentially be forced to enter into a co-parenting relationship with their rapist.

Alabama’s abortion ban legislation does not allow for abortions at any stage of pregnancy, except in limited health related circumstances that do not include rape or incest.  Thus forcing a woman to have a child if she does not act quickly after conception to end her pregnancy or seek a risky illegal abortion (as noted here in amicus briefs in Whole Woman’s Health v. Hellerstedt and June Medical Services v. Gee, many women may be at risk for health complications or death if they pursue unregulated illegal abortions). Further as far as risks to women’s health, childbirth is a greater risk than an abortion.

Thirty-two states allow for termination of parental rights based on if the rapist was convicted of sexual assault against the mother. Twenty states have legislation limiting parental rights of rapists (with some overlap). However, in contrast with some states that allow for termination of parental rights based on any conviction for rape or sexual assault (including Kansas and Massachusetts), or that do not require a conviction at all (Alaska and Colorado for example), Alabama requires a conviction for rape in the first degree, sodomy in the first degree or incest in order for parental rights to be terminated for this reason. Alabama otherwise requires “clear and convincing” evidence that “the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future,” based on consideration of a number of factors. This evidentiary standard generally is the highest standard in civil court (as opposed to criminal court), which is where child custody and abuse and neglect cases are waged. The clear and convincing standard is constitutionally mandated for termination of parental rights.

The statistics surrounding rape and criminal convictions are troubling; only approximately 31% of assaults are reported to the police. Further, few if any reported rapes are taken up by a prosecutor and successfully convicted (studies suggest 1% of rapes make it to conviction). Thus considering approximately 69% of rape instances are not reported to the police and few are successfully prosecuted, the 32 states that require a conviction to terminate parental rights based on rape only protect a small number of rape survivors.

Thus, an adult woman in Alabama could be forced to have a co-parenting relationship with her rapist, give her child up for adoption, or have an abortion. Adoption can be seen as a safe option, but it is far from it for the resulting children of these rapes. Alabama generally requires notification of a known or assumed father whose parental rights have not been terminated before an adoption can take place; unlike some states, in Alabama sexual assault does not create an exception to this requirement. Thus, a rapist could potentially prevent adoption and seek custody of a child. The Alabama legislature further victimized individuals who are raped when they voted to implement a sweeping abortion ban. This abortion ban limits options for women who, through no fault of their own, are pregnant and are faced with potentially having their rapist seek custody rights.

Alabama’s law leaves rape survivors aiming to terminate parental rights in a steep climb to prevent their rapist from re-victimizing them through forcing of shared custody. Rapists should not gain custody rights, and abortion bans are aggravating the issue for survivors of sexual assault.

If Alabama wanted to ensure the safety of rape survivors, several changes are required. Alabama should repeal its ban on abortion. Repealing the ban will allow rape survivors to terminate their pregnancies and not force them to raise a child; they did not have a choice in conceiving. Alabama should set a standard of clear and convincing evidence to terminate parental rights of a rapist and not require a conviction. When a conviction is required for termination of parental rights, it sets an excessively high bar, considering how few rapes are reported to the police, how many less are believed by police and thoroughly investigated, and finally, how few lead to a successful conviction of the rapist. The availability to terminate the right based on rape is especially essential when the survivor wishes to give up their child for adoption. Alabama has an adoption notification requirement that can allow for rapists to claim their biological child if the survivor gives the child up for adoption. Alabama’s abortion ban and its lack of opportunity to terminate the parental rights of a rapist can create a forced co-parenting between a survivor and their rapist, which re-victimizes the survivor. Alabama’s current structure harms rape survivors and their children.