by Nayanika Guha
(Content note: this article contains mentions and descriptions of sexual assault, abuse, domestic violence, and victim-blaming.)
In the summer of 2016, Alana* was raped by a man she had met online and begun dating. When she discovered she was pregnant, mutual friends pressured her to tell her rapist about the pregnancy. Just one month after Alana’s son was born, her rapist sued for custody. Alana had also filed a rape case against him, but failed to obtain a conviction. Her rapist was subsequently granted joint custody of her son. Alana described co-parenting with him as “disappointing, scary, and anxiety-provoking.”
Alarmingly, Alana’s case is far from unique. According to the Centers for Disease Control and Prevention (CDC), almost 3 million Americans have experienced a rape-related pregnancy (RRP) during their lifetime, with a similar prevalence across racial and ethnic groups. Further, according to RAINN, 433,648 Americans, aged 12 and older, are sexually assaulted or raped each year. Most of these rape cases never see a conviction. For every 1,000 sexual assaults, 975 perpetrators walk free and, in many states, retain standing to sue their victims for child custody. This means that on top of parenting responsibilities, rape survivors can be forced to co-parent with their rapists, putting both those survivors and their children at further risk for harm.
Darcy Benoit and her son know this risk all too well. Benoit is also a rape survivor and parent to a child conceived from rape. She says that laws allowing rapists the opportunity to get custody fail to understand that in suing for child custody, it’s not about rapists wanting to co-parent a child so much as taking revenge on their victims. Those laws essentially allow perpetrators to remain tethered to their victims so rapists can continue to exercise power over them. As a resident of Arizona, Benoit lacked a conviction in her rape case to protect herself and her child; she was forced to co-parent with her rapist for more than eight years.
“It’s just been hell—I’ve been stalked, harassed, tormented, and so has my son,” she said. “I’ve had protective orders on him, but they expire every year, and he violates them often.”
Limiting rapists’ access to child custody
Changes to existing laws that allow rapists to sue their victims for child custody have largely depended on the efforts of survivors like Analyn Megison. She was raped in 2003, and because her attacker’s violence caused her to blackout, she only realized she had been assaulted when she found out she was pregnant. In 2010, when Megison and her daughter were Florida residents, her rapist (who hadn’t been convicted for raping Megison) tried to sue for custody—years after the child was born.
“I found that there was really nothing in place in Florida to prevent this, which was really scary,” she said.
A lawyer by trade, Megison decided to draft a model law to prevent any visitation or parental rights of the rapist over a child conceived by rape. The bill was passed unanimously and with bipartisan support in 2013 and requires the standard of “clear and convincing evidence” for a rapist’s parental rights to be terminated.
The bill’s existence came at great personal cost to Megison. As a single mother, she was “running around the state to testify in court and speak about her cause” while simultaneously fighting her rapist in court to prevent him from gaining access to her daughter. In addition, she was also dealing with an abusive ex-husband and was pregnant with another child.
“I was in a situation where I was trying to raise awareness literally while being in hiding,” she said. “It was an uphill battle. I was kind of on my own.”
But Megison wasn’t on her own in her latest efforts to change legislation to support other rape survivors. Along with Benoit and other survivors, their advocacy pushed Arizona to become the latest state to pass legislation in 2021, adopting a similar civil standard to Florida’s where a criminal conviction for rape isn’t required to sever the parental rights of alleged rapists who impregnate their victims. Like Megison, Benoit’s experiences of injustice drove her to press for legal change.
“I started talking to everyone I could find,” Benoit said. “I talked to the Senate, I would talk to representatives, I would talk at universities, I would talk at colleges, I would talk to other social workers, and I would tell my stories.”
Benoit’s persistence eventually convinced state Sen. Victoria Steele to sponsor the House Bill. Currently, 14 states—Colorado, Connecticut, Florida, Georgia, Hawaii, Indiana, Iowa, Maine, Maryland, Michigan, Mississippi, South Dakota, Texas, and Vermont—terminate parental rights of a rapist based on the civil standard of clear and convincing evidence. These states are supported by the federal Rape Survivor Child Custody Act (RSCCA), which authorizes the U.S. attorney general to make grants to states that pass legislation terminating the parental rights of men who father children through rape. States must use the “clear and convincing evidence” standard, which is the predominant standard in the U.S. for termination of parental rights, to determine whether the father committed rape. The “clear and convincing” legal standard means that the evidence being presented must be “highly” and substantially more probable to be true rather than untrue. Currently, however, only 32 states allow the termination of parental rights of rapists who conceive a child, while others have varying restrictions in place, and many still require a criminal conviction.
Many survivors believe that changing legal standards to terminate parental rights for rapists is just the start of what survivors need to be safe and protected. Benoit is intimately aware of both the need for and limitations of current legal protections for survivors and their families. She is part of the Arizona Address Confidentiality Program, which means her rapist isn’t supposed to know where she lives. However, he’s managed to find her two times, necessitating her relocation three times so far. Not only is this upsetting and troubling for her family, it’s also a considerable financial and mental effort to continually start over and not know for sure that her rapist won’t have any access to them again.
Survivors still bear significant financial and social costs to protect their families
While legislative change can help ease the legal burdens borne by rape survivors, there’s little that legislation can do to lessen the social and emotional costs rape survivors are made to pay in the wake of their attacks. Having to start over after a rape is difficult enough—doing so after conceiving as a result of rape is even more complex. And the onus to protect oneself remains on the survivor.
Laurel, a first generation immigrant, was 26 when she met a man at a religious event who eventually raped her. She conceived twins after the rape and moved from Washington, D.C., to Florida, doing whatever she could to throw as many barriers as possible between her rapist and any chance he could try to gain custody of her children.
“I made sure that he would not file for custody,” Laurel said. “I made it as difficult as I could possibly make it, on purpose. You need to get as far away from that person having legal access to you as possible.”
This was easier said than done. Laurel had to work three jobs to support herself and her twins. The stress was so severe that she became ill and had to be hospitalized. She was afraid of putting her full name on social media, fearing her rapist might find her address or contact information. Like many survivors, Laurel found few protections or resources in place to help rebuild her life. Moreover, when she went to medical professionals for help, instead of compassionate care, she was often met with judgment.
“I was guilted by practically everyone, including the medical establishment, to keep a pregnancy that was not in my best interest,” she said.
Laurel believes that medical and social personnel need better training on how to deal thoughtfully and respectfully with rape survivors, both to ensure survivors’ physical health and access to the mental health and legal assistance they need. This is also true for police and other law enforcement, who often look on survivors with suspicion instead of support and often do not give rape cases their full attention.
“Dealing with police, the detectives, it was a horrible experience,” Benoit said. “I was not treated like a victim.”
Kendra Geronimo, a survivor of human trafficking who dealt with a rape-related pregnancy, thinks there is an urgent need for the mentality around rape to change, especially in the police force. She advocates for more compassion, understanding, and due diligence in investigations instead of just brushing aside of rape cases, which has been her experience.
“People look at rape victims like we’re either something to feel sorry for, or there’s this suspicion that we may not be telling the truth,” Geronimo said. “A lot of things that police brushed aside could have been valuable evidence. And then years later, you don’t have evidence to stand on because they didn’t do due diligence, because their mentality was messed up.”
Geronimo is also advocating for increasing the statute of limitation on rape, which varies in Florida, where she resides, based on the age of the victim and nature of the crime. She believes that a longer statute of limitations would have helped her file a case later on, when she had some time and distance from the incident and was not dealing with a pregnancy. She also conducts educational seminars on how to identify sex trafficking and helps to rescue and track down missing girls through Liberation Team, a nonprofit she started.
Despite her extensive advocacy, she admits that she has been very afraid to speak publicly about her experiences because her son is not yet of age. She believes that she will feel less threatened when her son is 18, and she will be able to have a louder, stronger voice. For now, however, she does what she can to help other survivors without putting herself or her son in jeopardy.
Other survivors have avoided speaking publicly or even joining efforts to change rape and custody-related laws out of similar worries about attracting attention and negative repercussions. And those worries aren’t unfounded. Every time Megison spoke publicly about this issue, or made any significant progress, her abusive ex-husband would make it difficult for her to see her son. She had to constantly remind herself that the fight was worth it and would eventually bring her and her children to a better place.
“I cannot fathom the idea that people are saying I should keep parenting with a rapist,” Alana said. “The same things that make you a rapist are what make you an unfit parent.”
Her rape case never got any closure, and she’s still co-parenting with her rapist, which is triggering and severely damaging for her mental health. The justice system in her state, which requires criminal conviction of the rapist to terminate a rapist’s parental rights, is still unable to adequately support her.
“I am not so naïve to think that telling my truth wouldn’t come at a price, but I didn’t think that the legal system would hurt me as badly as my rapist,” she said.
*Name has been changed to protect the identity of the survivor.
Nayanika Guha is a freelance writer who writes about social justice, identity, and community. She has a background in psychology and social work, which informs her writing and worldview. Her work has appeared in The Guardian, The Lily, Refinery 29, and more. Follow her on Twitter @nayanikawrites.
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This is a Creative Commons article. The original version of this article appeared here.