Debate Forum 09/03

Debate Center: Rapists in many states can have child custody rights

 By Alex Culpepper

 Illustration: Dayton artist Elliot Ward. 


A woman in Massachusetts is involved in a legal battle to overturn a state court order requiring the father of her child to assume partial parental responsibilities. She is doing this because he was also convicted of raping her, and the child is the product of that conception.

Shauna Prewitt was in her last year of college when she was raped. She decided to keep the child and found out several months after the birth that her rapist was seeking partial custody. She is fighting the situation and is now a lawyer specializing in custody rights. She is pushing for legislation to prevent men who fathered children through rape from having any parental rights. Ariel Castro, the man who held women captive in his Ohio home, has also made a move to maintain parental rights for the child he fathered when he raped Amanda Berry, one of his captives. His case is also leading to legislation that would prevent women from having to endure custody battles with their rapists.

These three cases are at the center of a movement to allow women to legally deny parental rights of rapists who fathered children through rape. Current reports claim at least 31 states have no laws preventing these fathers from seeking partial custody, and only six states have laws allowing rape survivors to have parental rights revoked through a court. One piece of legislation is the Rape Survivor Child Custody Act, which seeks to change this situation in as many states as possible. Sponsors of the bill hope to introduce new legal measures at the state level so women can seek full custody of children born from rape.

Supporters of this legislation say this is necessary to prevent the psychological and emotional distress a woman may suffer by being forced to maintain an 18-year parental relationship with the person who raped her. The goal is to help ease the trauma from the event and make recovery possible, ensuring the ability to raise a healthy child.

The opposition says the legislation may be unnecessary because judges already have plenty of authority to prevent any parent they deem unfit from having any custody at all. They also say bringing legislation spurred from a small number of tragic cases often produces a bad law.

Based on reports, many women were unaware their attackers could have parental rights, and the surprising fact was motivation for Shauna Prewitt and legislators to introduce new laws. They hope to help women distance themselves from their rapes and the ones who attacked them. Even so, some argue new laws sometimes can have unintended consequences and may not accomplish what they set out to do.

Debate Forum Question of the Week:

 Right now, Ohio – as is the case in 31 other states – has no law preventing convicted rapists from obtaining parental rights. Should convicted rapists have child custody rights, or should Ohio join other states currently seeking to legislate parental rights be off limits to convicted rapists?


Debate Left: Unspeakable but unwritable

By Ben Tomkins

 The question of child custody for rapists who have fathered a child as a result of their crime is an inevitable collision of the extremes of personal violation and parental protection. We are all going to learn a lot right now about who can tolerate a difficult legal discussion and who can’t. Rape is one of those words that can bring forth either profound emotional vitriol or unbelievably callous casualness. A conversation of this nature demands a gentle hand and an even keel, because in order to have it we will have to agree to examine and stratify the severity and circumstances of individual instances of sexual assault.

The foundation of the issue is the difference between physical and legal custody of a child. Physical custody is the right to be in the presence of your child either through visitation or care. Legal custody is much more subtle, but far more meaningful. Legal custody means that an individual has a right to be involved in important decisions in a child’s life, and has standing to assert a privileged position in respect to legal issues regarding the child’s welfare.

Legal custody is the cornerstone upon which the argument for parental rights of a rapist rest. In virtually all cases, courts protect the rights of a biological parent above all other custody claims. Whereas physical custody can be revoked and restored depending on an individual’s parental fitness, legal custody is far more definitive. DNA is the fundamental assertion of right and entitlement to custody of a child short of that child’s personal well-being. Once a biological parent loses or cedes legal custody of their child it is extremely difficult to regain, because as far as a court is concerned that person is now a litigant rather than an indisputable claimant.

Therefore, when we talk about writing a law whereby a rapist can have that right revoked from the outset, we aren’t just jostling a leaf pile. There’s a huge body of legal precedent weighing down the wheelbarrow. Consider a murderer. Just because this person is in prison doesn’t mean they can’t have some meaningful impact on a child’s life. As long as they aren’t doing something that would be trumped by the child’s well-being, they are still entitled to a measure of protection for their legal custody even though they will never be able to have physical custody.

Being convicted of a serious crime by no means implies that you can’t be a parent to some degree, and courts are not well-disposed towards deciding a person shouldn’t be a parent because they have personal failings or impoverished circumstances. If they did that, Angelina Jolie would have every kid on the planet over at her house because she’s about the only one who will be able to afford to pay their college tuition in five years.

The bottom line is, there have to be extremely compelling reasons for the court to believe that it’s in the best interest of the child to sever ties with a parent from the outset. In the case of Ariel Castro, I think the law already covers it quite completely. The idea that a court would grant legal custody to the person who held you, your mother and two other women hostage in a basement for years for the purposes of raping and sodomizing them – often in front of you – is laughable at best and offensive by any measure. This would never happen. And if it did, it would be overturned on appeal and the judge in question would be removed from the bench and probably disbarred. It’s unthinkable.

However, when it comes to a circumstance like a 19-year-old being convicted of raping his 16-year-old girlfriend because her parents were mad and pressed, I think perhaps the Rape Survivor Child Custody Act is overly broad in its wording. In it, the word “rape” is used without qualification. As such, it would treat the couple I just mentioned in the same fashion as Ariel Castro. I absolutely do not think that it is fair or reasonable to treat circumstances so radically different as if they were one entity.

The most nebulous argument is the case of the 14-year-old who was raped by her 49-year-old teacher in Montana. Speaking of a judge about to be removed from the bench … The attacker in this case was let off with probation because the judge determined his act was “not the kind of rape most people think about.  It was not a violent, forcible, beat-the-victim rape, like you see in the movies.”

That would be the difference between “rape” and “forcible rape?” Ass.

However, if this girl got pregnant, should the teacher have parental rights? Shit, I don’t know. Maybe? I would have to have a profound understanding of the situational dynamics, and that’s precisely the dilemma. I don’t think it would be responsible or even possible to write a law in that way. As it stands now, it has to be fought out in front of a judge. As horrible as that is, I think it’s about the only way to reasonably deal with the problem. Even if it’s obvious a person convicted of rape should not have legal custody, I do not think we can take away their right to try to assert it.


Benjamin Tompkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tompkins at


Debate Right: It’s very simple … No parental rights for a convicted rapist

By Dave Landon


Every day it seems that we hear about outrageous behavior in what is rapidly becoming a nation of pseudo-victims. The latest group to feel put upon are the convicted rapists who are petitioning family courts seeking parental rights for children born from the violence of their action. That’s right, convicted rapists want courts to grant them the right to be involved in the lives of the children they fathered. It’s unfair, they argue, that their children should be deprived of the love and affection of a father. After all, do we want them to grow up fatherless, then lacking that fatherly guidance have a troubled youth and end up behind bars? If this weren’t so traumatic for the real victims in these cases – the violated women who showed enormous courage in carrying these children to term and then keeping them – the hubris of these animals would be laughable. Unfortunately for the women involved, it is yet another form of assault.

Nearly 11,000 women each year decide to keep and raise children conceived from a rape. Many of these women face the long custody battles with their former attackers. Women who find themselves in such circumstance feel “tethered” to their rapist for the years that the issue remains in the courts.

These arguments by the rapist for pursuing their parental rights reminds me of the boy who kills his mother and father and then throws himself on the mercy of the court because he is now an orphan. It’s so ridiculous to imagine that they are serious, but yet here they are harassing their victims and wasting the court’s time.

Surely, you might rightly exclaim, that there is no court in the land where a convicted rapist would be granted parental rights. Well, we would certainly hope not. However, the almost absolute certainty of winning a fight against their attacker in court is not the real issue. The reward for the courageous decision by the woman to keep a child brought into the world in such a horrific manner should not be requiring that mother to hire an attorney and endure endless court procedures in order to defend against the torments of her rapist. She deserves better and so does the child.

Clearly, no woman in those circumstances wants to be forced to deal with the cretin who raped and impregnated her. Yet, in most states across the country, there is no restriction or law which prohibits a rapist from pursuing parental rights. If he has served his prison time, in those 31 or so states with no prohibitions, the rapist could even seek custody. Ridiculous … yes. Absurd … absolutely. Nevertheless, it’s a real problem for a growing number of women.

One victim was a 14-year-old girl living in Massachusetts when she was forcibly raped by a 16-year-old boy. He received probation for a term of 16 years and has filed in Massachusetts Family Court for parental rights. The young woman who was the victim of the rape has filed a lawsuit in Federal Court arguing that the state is victimizing her a second time by forcing her to maintain a relationship with the rapist.

Here in Ohio, the recent case that shocked the world of Ariel Castro who kidnapped three women and held them against their will for over ten years continues to make news. Castro has indicated his intention to seek parental rights with the child that he fathered with Amanda Berry, one of his captives. At present, Ohio has no law on the books which would prevent him from taking the matter to court. His outrageous criminal behavior and absolute control over these three women will be allowed to continue in another form against Amanda Berry because Ohio law doesn’t adequately prevent it. Undoubtedly, the outcome will go against Castro, but in the meantime Berry must endure his brutish behavior to protect her child. There is legislation in Ohio now under consideration to prevent this situation from occurring in the future.

This should be remedied in every state by appropriate legislation which extinguishes the parental rights of anyone convicted of rape. This is most effectively remedied by state government, although there has been federal legislation introduced. The Rape Survivor Child Custody Act, which was introduced this past summer, is well-intentioned but does little more than to direct the U.S. Attorney General to make financial grants to states that have in place laws that terminate parental rights of men who father children through rape. There are now six states which have passed such legislation terminating parental rights of a convicted rapist. More states need to follow.

Normally, parental rights are fiercely protected in our family court system. Parents who have screwed up are often given a second chance, and rightly so. The bond between parent and child is something we as a society try to protect if at all possible. But this is different. There can be no second chance for a rapist to get involved with the child he fathered through the act of rape. This is not about concern that a rapist could ever be granted parental rights. This is about not subjecting the true victim in this ugly episode to additional psychological trauma in having to face this animal in any circumstance going forward. Can I get an “Amen”?!

David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at



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David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at

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