A recent verbal miscue by a Missouri Congressman has sparked loads of criticism and hopefully some intelligent debate and reform. Nearly everyone has heard of Rep. Todd Akin's comment that women don't get pregnant from "legitimate" rape. The immediate response was forceful, angry, and in at least one case, incredibly insightful.
Shauna Prewitt, a self-described author and advocate, wrote an open letter on xoxojane.com addressing Rep. Akin's comments. As a mother of a child that was conceived through forcible rape, she was appalled by his comments. Instead of merely venting however, she also took the opportunity to point out that in the majority of states, there are no laws to restrict the custodial rights of rapist fathers.
That's a problem for obvious reasons. It really made us curious as to what Illinois' stance was on the matter.
Illinois does seem to have a few relevant laws. For one, if the mother decides to put the child up for adoption, the father's criminal sexual assault will void his right to oppose the matter.
For cases where the mother decides to keep and raise the child, Illinois's law that addresses the matter actually just took effect last year. Section 6.5 essentially provides that if the father was convicted of any of a variety of sex crimes that led to the conception of the child, they have no right to custody absent the consent of the mother.
It does leave one small hole. What about unreported rape or acquittals based on technicalities? Yeah, we're probably pushing into increasingly rare situations here, but unreported rape is a very significant problem and by the time the victim realizes that she is pregnant, it might be too late to make a case against the offender.
There's always the fall-back "best interests of the child" standard. For all questions of custody, support, and decisions that affect the child, the court will take many factors into account in determining what is best for the child, including evidence of a parent's violent conduct or sex offender status. Convictions aren't a prerequisite to termination of rights under this statute.
Also, there is a presumptive father provision in Illinois' custody laws. If the victim is married at the time of the birth, her husband is presumed to be the father by law. Unless the husband denies paternity, it would be unlikely that a rapist could gain any rights in such a scenario.
As far as state custody laws go, though Illinois' might have some holes, it's far ahead of the curve. Between the redundancies and catch-all "best interests" standard, the state has addressed the vast majority of situations where a sex offender could claim rights to the victim's child.
Finally, for the record, Rep. Akin has apologized repeatedly for his utterly stupid comments. According to the Congressman, they were merely poorly-chosen words and he understands that pregnancy can result from forcible rape. For a political mea culpa, it was a fairly explicit admission of fault and apology.
- Consult a Chicago Family Law Attorney (FindLaw)
- Giving Birth to a "Rapist's Child": A Discussion and Analysis of the Limited Legal Protections Afforded to Women Who Become Mothers Through Rape (Georgetown Law Journal)
- Checklist: Grounds for Terminating Parental Rights (FindLaw's Learn About the Law)
- Terminating Parental Rights (FindLaw's Learn About the Law)