Rapists’ rights in Illinois: The new law and what other states can learn from it
Ariel Castro and the rights of rapists
The case against Ariel Castro was one of the biggest headlines of the year. He kidnapped and held three women captive in his house for more than a decade. With more than a 975 count indictment that included multiple kidnapping and rape charges, Castro was held on an $8 million bond. One of the three women whom Castro held captive is Amanda Berry. As a result of Castro raping Berry she became pregnant. By the time Castro was in custody, the child conceived by rape was six-years-old.1
During his proceedings Castro sat quietly in the Cuyahoga County Court, until he spoke to ask the judge to allow him to see his six-year-old daughter. Castro asked multiple times about visitation rights, to which the prosecution objected as the request went against an order of no contact. The judge ruled that Castro’s request was inappropriate and refused the visitation as it would have violated the order of protection. The law in Ohio at the time regarding the parental rights of rapists was meager. The current law states that consent is not needed for adoption if the rapist-father is convicted of rape.2 No other protections were afforded to the victims and children of rape.3 With a case that caught the attention of the entire nation, a major issue was raised: What parental rights do rapists maintain? At the time of Castro’s request to see his daughter, a total of 31 states had enacted some legislation addressing the parental rights of rapists.4
What are parental rights and why is it so alarming that in a majority of states' rapists retain these rights? Parental rights can be categorized into two rights, visitation rights and custody rights. Visitation rights, in reference to family law, are rights of a non-custodial parent to the court-ordered privilege of spending time with a child who does not live with that parent. These rights include rights of a parent whose child has been removed as a result of abuse or neglect.5 Custody, in reference to family law, is the “care, control and maintenance of a child awarded by a court to a responsible adult” and can involve physical custody and legal custody. Physical custody exists where a person has a right and obligation to provide a physical home for the child and assist in making day-to-day decisions concerning the child. Legal custody exists when a parent has a right to make decisions concerning the child’s welfare, including but not limited to medical choices and school choices.6
In many states, rapists can maintain a great amount of power in governing family relationships. Not only can rapists request rights regarding visitation and custody of their rape-conceived child, but also in some states rapist fathers can actually prevent their victim from placing the rape-conceived child up for adoption. By refusing to terminate his own parental rights, a rapist may prevent a child from being adopted by a new family or even by a spouse of the victim.7
At the time of Ariel Castro’s request to see his daughter, Illinois was in the process of addressing this issue and on August 16, 2013 the Governor of Illinois signed this bill into law effective on January 1, 2014.
Current law in Illinois
The current law on this matter is found at 750 ILCS 45/6.5. This Section applies only to those who have been found to be the father of a child who has been convicted of or who has pled guilty or nolo contendere to sexual assault or sexual abuse. This includes criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault of a child, criminal sexual abuse, aggravated criminal sexual abuse, sexual relations within families, criminal sexual assault, aggravated criminal sexual assault, criminal sexual assault of a child, criminal sexual abuse, aggravated criminal sexual abuse, or a similar statute in another jurisdiction, for his conduct in fathering that child.8
A person who has violated an above-listed statute shall not be entitled to custody of or visitation with that child without the mother’s or guardian’s consent. The law states that nothing in this section of the statute shall be construed to relieve the father described of any support and maintenance obligations to the child under this Act.9
Other states’ laws
Thirty-one states have enacted some form of legislation to address the problem of rapists having parental rights. However, a large majority of the legislation in these states fail to provide real relief to rape victims. The legislation that exists can be categorized in four ways. The first type of legislation limits a rapist’s parental rights as they relate to adoption. The second type of legislation limits a rapist’s parental rights to visitation. The third type of legislation limits a rapist’s parental rights to custody and visitation. Finally, the fourth type of legislation terminates all of the rapist’s parental rights. Further, some states require that the rapist be convicted of rape before the legislation has any effect on the rapist. Additionally, some states allow the court to have discretion regarding the limitation of the parental rights of rapists, rather than an automatic termination of parental rights.10
Twenty-six states have enacted legislation to allow a victim of rape to place her rape-conceived child up for adoption without the consent of the rapist father. Twelve of these states do not require that the rapist father be given any notice that the child is being placed up for adoption. However, even in these states, if a mother chooses to keep her child, the law provides no safeguards to protect the mother from the rapist father asserting his parental rights, such as visitation and custody. Further, the other fourteen states allow for some form of termination of parental rights.11
Of the twenty-six states that address parental rights of rapists regarding adoption, fourteen states require that the rapist be convicted of the sexual act before the victim is allowed to place her child up for adoption without notification and consent requirements. This is problematic because rape is an underreported crime and not all rapists who are prosecuted are convicted. The other twelve states that address the issue of adoption do not require a conviction before statutory protection exists for the victim and her child. Two states have enacted legislation that restricts a rapist’s visitation rights and four states have legislation that limits the rapist’s rights to both visitation and custody.12
Currently eight states allow for termination of all parental rights if the rapist father has been convicted of rape or sexual assault. While it appears that a majority of states have implemented some safeguards, these protections are somewhat tricky and limited. There are many loopholes that victims must maneuver through before they can escape their attacker, and even so, few states fully protect a victim from interaction with her attacker.13 Many of these issues are addressed by Illinois’ new law described below.
The new and more thorough Illinois law
On January 1, 2014, IL Public Act 098-0476 becomes effective. This new law has many added benefits to victims of sexual abuse who give birth to a child conceived of that abuse. Public Act 098-0476 amends 750 ILCS 45/6.5 by broadening the restrictions to include “men who father through sexual assault or sexual abuse” rather than only “sex offenders.” This important amendment means that victims no longer have to have to wait for a conviction of their attacker, which may never come, in order to terminate parental rights of a rapist. To protect against false accusations in cases where there is no conviction, there is new language that provides: [if a person] “is found by clear and convincing evidence to have committed an act of non-consensual sexual penetration or his conduct in fathering that child.” 14
Additional aspects of the new law allow mothers or guardians to deny maintenance or support from the father. The father is no longer allowed to inherit from the child without the mother’s or guardian’s consent. Further, notwithstanding the Illinois Marriage and Dissolution of Marriage Act, no other family member (parent, grandparent, great grandparent, or sibling of the father) will have standing to request custody or visitation with the child without the mother or guardian’s consent. The final addition in the law details how a child’s mother or guardian may file a petition as an affirmative defense in any proceeding regarding the child initiated by the sexual offender.15
Shauna Prewitt, a victim of sexual abuse, was active in bringing legislation forward to protect victims of sexual assaults and abuse. She explains the importance of the new Illinois law, “This law aligns custody and visitation matters involving women who conceive through rape with other custody and visitation cases – they all will be decided based on the same burden of proof now.” She further went on to state that this law is important because it allows rape victims an opportunity to parent without penalty or harm. “Today, Illinois legislators have given women who conceive through rape an opportunity to be heard in the family courts.” The thoroughness of Illinois’s new law will soon be tested as it becomes effective in January of 2014, but Shauna Prewitt’s statements suggest that Illinois’s new law may be one of the most thorough laws to protect the victims.16
The trauma of the rape does not end on the night of the attack. Recovering from a rape can be a lifelong struggle, as Prewitt explains in her interviews and in her journal article.17 The physical and mental pain does not cease after the act of rape. Choosing to carry a child conceived by rape is a hard decision and one that comes bearing severe consequences under current Illinois law. Giving birth to a child conceived from rape is honorable but often leads to the victim’s continued interaction with her attacker.
As determined many years ago, women in America have the right to choose whether or not to terminate their pregnancy, at least prior to viability. Casey v. Planned Parenthood. Further, courts have outlined freedoms of families to choose how to raise their child. But these freedoms afforded to all can have negative effects on victims of rape. When a woman becomes pregnant as a result of a rape, the rapist (absent legislation in few states to the contrary) has the same parental rights as any biological father. Because of the current laws, women who are raped in many states can be forced to continue contact with their attacker. While victims generally do not wish to continue contact with their attacker, victims of rape can be forced to.
Such is the case of Shauna Prewitt, an author, attorney, advocate, public speaker, and a rape victim. When Shauna was a mere twenty years old she was sexually assaulted. Prewitt gave birth to a daughter, a result of her assault, and a mere six months later Shauna learned that her attacker was seeking custody of her baby girl. The closure and healing had occurred for Shauna in the fifteen months since the attack was immediately undone. Shauna could never fathom entrusting her baby to a man who attacked her, let alone spend the next eighteen years tethered to her attacker. But because of the way the law was written at that time, she had no choice.18
Few legal protections exist in the majority of states to protect victims and rape-conceived children from the rapist. Because of this, a countless number of women are forced to continually relive their attack by rapists who assert their parental rights. As of August 2013, there were thirty-one states that had some type of law barring rapists for seeking custody or visitation rights from the children they fathered through rape. By creating and enforcing legislation, states attempt to protect the victims and to prevent the rapist fathers from asserting their rights in an attempt to maintain control over their victims.
Progress not product
What Illinois has done in order to protect sexual assault victims is highly commendable and the legislation passed in August should be mirrored by many states who do not afford these protections. While Illinois was not the first state to enact such legislation, it is a state that has done a more thorough job of protecting the victims from a variety of issues stemming from custody and visitation rights. By allowing these protections, Illinois is helping pave the road toward a future for these victims, their children, and the recovery from such a traumatic experience. Illinois’s new legislation is progress, but not an end product. It is important for our country as a whole to recognize the need for these protections, and that women nationwide can all be afforded the same protections against their attackers.