Illinois allows mothers who gave birth to their rapist’s child to block custody or visitation when the rapist is criminally convicted.1 House Bill 3128 would change that.2 The proposal would allow mothers who conceived through rape to strip the parental rights of their rapists if they could prove a rape occurred that resulted in conception of the child.3 This addresses an issue that was highlighted by Shauna Prewitt in the Georgetown Law Journal.4 Illinois is among a few states that allow for different custody rules for rapists when the mothers have a criminal conviction, and this proposal would allow Illinois to become a state that allows for different custody rules in the absence of a criminal conviction but with other evidence of a rape.
Most states give the same legal rights to men who father children through rape as they do to other fathers.5 Only 16 states provide different custody and visitation rules for men who father through rape, and of those, ten states mandate a criminal conviction as proof. 6 Louisiana’s law specifically requires the court to terminate parental rights where a rape is proven, but it does not require a criminal conviction as proof.7 Nine states provide for the termination of the parental rights of rapist fathers.8 Six states allow the termination of parental rights without a criminal conviction, but the majority of those states do not require the court to terminate the perpetrator’s parental rights.9
With this proposed amendment, Illinois would require not allowing custody or visitation to men when a woman can prove by clear and convincing evidence that a rape occurred that resulted in the child’s conception.10 It can be asserted either in an affirmative petition or as an affirmative defense.11 Clear and convincing evidence is the standard for determining unfitness as well.12 Left undefined by the proposed amendment is what evidence would meet the standard. Courts will have to decide that in cases brought under the law.
The proposal would also allow mothers to refuse child support.13 However, it makes clear that stripping custody and visitation rights does not also remove the obligation of child support.14 It would also deny inheritance rights to rapist fathers.15
The proposed amendment has passed the Illinois House and is in the Senate awaiting a vote.16 If passed and signed into law, this bill would give raped mothers another legal avenue for recourse. They would not have to have interaction with their rapist if the rapist father was denied custody and visitation, which could help in the process of healing. Colorado is considering similar legislation, but it requires a conviction whereas Illinois’ proposal would no longer require a conviction where there is clear and convincing evidence that a rape resulted in conception.17 Perhaps Illinois will become a model for addressing this problem. ■