A Minnesota state senator plans to revive her push to give the state the ability to terminate the parental rights of alleged rapists, ending a seldom used loophole that has been closed in every other state save one: Alabama.
Sen. Kari Dziedzic, DFL-Minneapolis, said Tuesday that she intends to press for the change in next year’s session of the Legislature, reviving one of several proposals that have fallen by the wayside over the years.
Dziedzic will likely count on renewed focus on the issue after a recent Washington Post article about Alabama, where lawmakers recently banned abortion for rape victims. Alabama and Minnesota are unique among the states in that they have no statute ending parental rights for fathers found to have conceived a child by rape or incest.
Her effort comes after Minnesota lawmakers recently approved a task force to examine the state’s sex assault laws to make it easier to investigate and prosecute rape cases. The Legislature also recently removed special legal protections for spouses and domestic partners accused of sexual assault.
Dziedzic first drafted a bill terminating parental rights in rape cases in 2012. The measure was seen as a lower priority than attempts at the time to reduce rape kit backlogs and never got introduced. Although Minnesota — unlike Alabama — protects abortion rights, Dziedzic said it may be time to join the majority of states with a statute revoking rights when a child is conceived because of rape.
“I think it’s an eye-opener for many and I think it could be and should be discussed as part of that [sex assault] task force,” Dziedzic said. “It gets into that whole issue of rape being still very underreported and prosecutors deciding whether to prosecute the cases. We need to have this conversation because if they’re not charged, if they’re not convicted, then what?”
Many states adopted laws terminating parental rights in rape cases after Congress passed the federal Rape Survivor Child Custody Act in 2015, providing financial incentives for states that help sexual assault victims and prevent alleged rapists from pressing for custody or other parental rights.
Some of those states allow for a judge to revoke parental rights if there is “clear and convincing evidence” that the child was conceived as a result of rape. That legal term — a lower standard than that required in securing criminal convictions — is defined as evidence that is “highly and substantially more likely to be true than not.”
Minnesotans who have been convicted of serious crimes including sexual assault, incest and murder must prove to a court that custody or parenting time is in the “best interests of the child.” If the person committed the crime against a family or household member, a judge could rely on the “clear and convincing evidence” standard of proof in deciding parental rights.
But with no clear-cut statute terminating parental rights in cases of rape, state law leaves open an array of uncomfortable legal outcomes.
Lindsay Brice, law and policy director for the Minnesota Coalition Against Sexual Assault, said the state’s current process can lead to perpetrators being ordered to pay child support but not being allowed custody or parenting time. Brice said the process can also create complications such as making survivors choose between a connection with their rapist or a denial of child support. State law also presumes parentage in cases where survivors are married to their rapists when the child is born.
Another factor is that most sexual assault cases in Minnesota do not end in criminal convictions: A 2018 Star Tribune investigation of more than 1,400 reports of sexual assaults in 2015 and 2016 revealed that just 8% resulted in convictions.
“Over the years, there has been discussion about how this situation can be improved,” Brice said. “Unfortunately, there is not a simple, clear legal solution.”
Brice’s coalition filed an amicus brief in a 2006 parentage case in support of a woman who asserted that her child was conceived as a result of nonconsensual sex with a man she met at a bar one evening. Both parties claimed that they were unaware that the sex happened because of their intoxication. The Minnesota Court of Appeals sided with a lower court’s decision that the woman offered too little evidence “to establish as a matter of fact that the sexual contact was nonconsensual.” The Appeals Court also added that Minnesota judges have broad discretion in deciding parenting-time questions based on the “best interests of the child.”
A 2016 bill that would allow for terminating parental rights in rape cases under the “clear and convincing” standard is the last time the topic surfaced at the Legislature, where it did not receive a committee hearing.
“I didn’t think too long and deep on the subject — it just seemed like on the face value that that’s what needs to at least be able to happen,” said Rep. John Persell, DFL-Bemidji, the 2016 bill’s sponsor. “That parent who commits those acts has forfeited their right to have that child under their roof.”
Last session, Persell also co-sponsored the House bill repealing a “marital rape defense” that prevented prosecutions of spouses for certain sex assault crimes.
“It kind of gets my blood pressure up to even think about both of those things,” Persell said. “It’s common sense. I mean, why would we allow that?”
Brice’s coalition is now working with the Uniform Law Commission and the Minnesota State Bar Association to review model legislation including a procedure for cutting off parentage after a sexual assault.
June Carbone, a University of Minnesota law professor, said the focus on parental rights in rape cases is a relatively recent topic as states have for decades viewed parental rights largely within the context of legal marriage.
In recent years, she said, states have come to view children as being best served by contact with both parents regardless of their relationship. She added that some in the “fathers’ rights movement,” which has sought to ensure equal child access for biological fathers, have expressed skepticism about the “clear and convincing evidence” standard, fearing that it could encourage false reports during bitter divorce and custody battles.
“So the issue is not whether we recognize rapists. The question is does the state get around to changing its custody laws to exclude rapists — which has only really been an issue that they’ve had to consider roughly in the last 10 years,” Carbone said. “Before that it just hadn’t arisen.”