If your rapist is your child’s father, you now have protection

July 6, 2020

 

Imagine that at age 14, when you are either in 8th grade or just starting your freshman year of high school, a man rapes and impregnates you. You have the baby, and want to give the infant up for adoption so you can heal and get on with what is left of your shattered adolescent life. But your rapist, who has admitted to having sexually assaulted you, will not sign the adoption papers because he now wants to exercise his parental rights over the child. 

 

You don’t have to imagine this scenario, because it happened right here on our island. It is one of two instances that spurred Sen. Mary Torres to author a bill that allows a rape victim who bears the child of her rapist to terminate the perpetrator’s parental rights. The second case, mentioned in her Bill 162-35, was when a 38-year-old man was charged in the Superior Court of Guam with raping and impregnating an 11-year-old child. 

 

“Once you rape, you forfeit that right,” is how Torres explained her legislation to me on June 16, one day after Bill 162-35 passed unanimously in the 35th Guam Legislature, with all 14 of her colleagues joining on as co-authors.

 

In her release upon introducing the bill one year and five days before it passed, Torres said, “No woman should live in fear of her child being taken away by her attacker and no victim should be forced to endure the trauma of seeing her assailant on a regular basis. Right now, there’s no law stopping that nightmare from happening.” 

 

Torres’ Bill 162 is now public law, thanks to Gov. Lourdes Leon Guerrero having affixed her signature to it. The legislation closes a legal loophole that, incredibly, allowed a rapist to fight for custody or visitation rights of the child conceived by the rape so long as he was not deemed an unfit parent.

 

But this law also does something else beneficial. It now makes Guam eligible for much-needed additional funds through our Stop Violence Against Women  and Sexual Assault Services Program  formula grant awards from the Office of Violence Against Women.

 

Under the Rape Survivor Child Custody Act (RSCCA), which Congress passed and President Barack Obama signed as U.S. Public Law 144-22 in 2015, a state or territory is eligible for up to an additional 10 percent of the three-year average of these combined grants if that state or territory has in place a law that allows the mother of a child conceived through rape to seek court-ordered termination of the parental rights of the rapist with regard to that child.

 

That translates to approximately $70,000 per year, for up to four years, that Guam is eligible to apply for the RSCCA funding (which means Guam is eligible for an extra $280,000 over a four-year period). That money can pay for much-needed counseling, advocacy, and other services to help survivors of sexual assault, domestic violence, dating violence, and stalking heal and move on with their lives.  

 

The RSCCA says courts are authorized to grant termination of parental rights of a rapist upon clear and convincing evidence of rape.

 

What is “clear and convincing evidence,” you may ask? According to the Cornell Law School website, "clear and convincing” means that “the evidence is highly and substantially more likely to be true than untrue; the fact finder must be convinced that the contention is highly probable.” Cornell says it is a more rigorous standard to meet than the preponderance of the evidence standard, but less rigorous than “beyond a reasonable doubt.”

 

Thankfully, clear and convincing evidence does not involve a criminal conviction, because as a rule, those are difficult to obtain in sexual assault cases. Recent statistics provided by the Office of the Attorney General of Guam note a 34 percent, or one-third conviction rate of sexual assault cases processed and charged. Torres noted this conviction difficulty in her bill. 

 

Importantly, though, both the local law and the RSCCA state that the court may still order the natural parent of the child to pay child support, even if the parental rights are terminated. So, if you rape, you can lose your parental rights, but you are still financially responsible for the child your violent act created. Actions have consequences, as they say. 

 

Without this statute, we could have instances where a rape victim is forced to co-parent with their rapist or, as Torres mentioned in her bill, be coerced into not reporting the rape or pursuing prosecution upon the threat of the rapist pursuing custody of the child - “Don’t testify and I won’t seek visitation,” her legislation posits.

 

This is one of those laws that we as a society wish we didn’t have to have on the books. Unfortunately, it is a necessity. Almost weekly, we hear or read about a man, usually an older man, sexually assaulting a pre-teen or teenage girl.

 

As I have mentioned before, until we can teach our men that sexually assaulting someone is not acceptable in our society, and shame those who commit such heinous acts to the extent that no one dares commit this crime again, we will need such legislation. 

 

Senators of the 35th Guam Legislature, Si Yu’os Ma’ase for stepping up to help the victims. 

 

Jayne Flores is the director of the Bureau of Women’s Affairs and the administrator of the Governor’s Community Outreach - Federal Programs Office, which handles Guam’s OVW STOP and SASP formula grants to combat sexual assault, domestic violence, dating violence, and stalking. Send feedback to jayneflores59@gmail.com.

 

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