The Washington Post

For rape vic­tims in Alabama, a 2nd trauma

Abor­tion ban sheds light on lack of laws deny­ing parental rights for rapists

- BY EMILY WAX-THIBODEAUX Crime · Society · Sexual Abuse · Violence and Abuse · Alabama · Belarus · Belgium · Iceland · Colombia · Washington · Austria · Minnesota · Congress of the United States · United States Department of Justice · Kansas · Wyoming · United States of America · West Virginia · Virginia · Jordan · Maryland · Sinclair Lewis · Florida · Rape, Abuse & Incest National Network · West Virginia University · Fort Payne, AL · Richard Barnett · Resource Center · Kansas Court of Appeals

When a young wo­man came to the Fam­ily Ser­vices of North Alabama of­fice last year for help with trauma, say­ing she had been raped by her step-un­cle when she was 15, rape cri­sis ad­vo­cate Por­tia Shep­herd heard some­thing that “killed me, shocked me.”

The step-un­cle, who was get­ting out of jail af­ter a drug con­vic­tion, wanted to be a part of their child’s life. And in Alabama, the al­leged rapist could get cus­tody.

“It’s the cra­zi­est thing I ever heard in my life,” Shep­herd said. “On the state level, peo­ple were shocked. How could Alabama even be miss­ing this law?”

Alabama is one of two states with no statute ter­mi­nat­ing parental rights for a per­son found to have con­ceived the child by rape or in­cest, a fact that has gained fresh rel­e­vance since its law­mak­ers adopted the na­tion’s strictest abor­tion ban in May. That statute even out­laws the pro­ce­dure for vic­tims of sex­ual as­sault and jails doc­tors who per­form it, ex­cept in cases of se­ri­ous risk to the wo­man’s health.

While the Alabama abor­tion law has been chal­lenged in court, abor­tion rights ac­tivists fear it could re­duce ac­cess to the pro­ce­dure, forc­ing rape vic­tims to bear chil­dren and co-par­ent with their at­tack­ers.

Last month, Alabama law­mak­ers con­sid­ered a bill that ad­dressed end­ing parental rights in cases of rape that re­sult in con­cep­tion, but the leg­is­la­ture re­moved that lan­guage, lim­it­ing the law to cases in which peo­ple sex­u­ally as­sault their chil­dren. State Sen. Vi­vian Fig­ures (D) and other law­mak­ers be­lieved the lan­guage that was re­moved could have ex­cluded boys who were as­saulted, be­cause they can­not get preg­nant. Fig­ures said she didn’t know Alabama lacked a statute pre­vent­ing rapists from gain­ing cus­tody of their off­spring but told The Wash­ing­ton Post that she now plans to in­tro­duce a bill in the next leg­isla­tive ses­sion.

“It’s just . . . un­fair and even dan­ger­ous to th­ese moth­ers and chil­dren,” said Fig­ures, who voted against the state’s abor­tion ban.

Some an­tiabor­tion ac­tivists have been at the fore­front of ef­forts to pass such laws. Re­becca Kiessling, an an­tiabor­tion fam­ily at­tor­ney who was con­ceived by rape, said the laws pro­tect women who choose to keep their preg­nan­cies.

“Maybe they wouldn’t abort or give the child up for adoption if they knew they were pro­tected,” she said.

But laws ter­mi­nat­ing parental rights in rape cases have raised con­tro­versy.

Ned Hol­stein, board chair for the Na­tional Par­ents Or­ga­ni­za­tion, which ad­vo­cates for shared par­ent­ing af­ter di­vorce, said that al­low­ing fam­ily courts to sever parental rights based on rape ac­cu­sa­tions is “an open in­vi­ta­tion to fraud.”

“Tak­ing a per­son’s child away is a griev­ous act,” he said. “And if it is done to an in­no­cent par­ent, you are also deny­ing the child a fit par­ent for­ever and putting her into the sole cus­tody of a ruth­less par­ent who is will­ing to fab­ri­cate a heinous ac­cu­sa­tion.”

Even if a per­son is con­victed of rape, “there is merit on both sides of this is­sue, and we have no po­si­tion on it, ei­ther way,” he said of his or­ga­ni­za­tion.

‘Clear and con­vinc­ing ’

In ad­di­tion to Alabama, only Min­nesota has no law ter­mi­nat­ing parental rights in rape cases. Many states adopted such statutes af­ter Congress passed the Rape Sur­vivor Child Cus­tody Act in 2015, grant­ing ad­di­tional fund­ing to help sex­ual as­sault vic­tims in states that al­low courts to end parental rights when there is “clear and con­vinc­ing ev­i­dence” that a child was con­ceived by rape.

More than half of the 50 states use the “clear and con­vinc­ing ev­i­dence” stan­dard, ac­cord­ing to an anal­y­sis by the Na­tional Con­fer­ence of State Leg­is­la­tures us­ing Jus­tice Depart­ment data.

That stan­dard — de­fined as ev­i­dence that is “highly and sub­stan­tially more likely to be true than not” — is also used in cases of child mo­lesta­tion, ne­glect or ha­bit­ual drug use.

For ex­am­ple, the Kansas Court of Ap­peals in 2012 ter­mi­nated a man’s parental rights to a child who was born af­ter he al­legedly raped the mother at a party be­hind a locked bath­room door. Sev­eral wit­nesses said they heard her say, “No, no, no. Stop it,” and other protes­ta­tions, lead­ing the Kansas civil court to de­ter­mine there was enough ev­i­dence of rape to sever cus­tody with­out a con­vic­tion, ac­cord­ing to court doc­u­ments.

The “clear and con­vinc­ing” bar is lower than the “be­yond a rea­son­able doubt” stan­dard used in crim­i­nal tri­als, and some ar­gue it might prompt false rape claims dur­ing di­vorce pro­ceed­ings in­volv­ing child cus­tody.

This spring in Wy­oming, law­mak­ers stripped “clear and con­vinc­ing ev­i­dence” from a bill and in­stead passed a statute that al­lows ter­mi­na­tion of parental rights only af­ter a rape con­vic­tion.

“We have a crim­i­nal jus­tice sys­tem for a rea­son, and that pro­tects the rights of the ac­cused,” said Wy­oming state Rep. Mike Greear (R).

Nearly half of states re­quire a rape con­vic­tion to ter­mi­nate parental rights. Sev­eral oth­ers al­low ei­ther stan­dard.

Ac­tivists ar­gue that the con­vic­tion stan­dard is too high, given that three out of four rapes in the United States go un­re­ported, ac­cord­ing to an anal­y­sis by the non­profit ad­vo­cacy group Rape, Abuse and In­cest Na­tional Net­work, which used an an­nual study con­ducted by the Jus­tice Depart­ment. While the data is de­bated, RAINN es­ti­mates that less than 1 per­cent of all rapes lead to crim­i­nal con­vic­tions with in­car­cer­a­tion.

Karen Weiss, as­so­ciate pro­fes­sor of so­ci­ol­ogy at West Vir­ginia Univer­sity, said that, de­spite so­cial me­dia cam­paigns to re­move the stigma of sex­ual as­sault, many women re­main too ashamed or re­luc­tant to make for­mal com­plaints. That’s par­tic­u­larly true when they know their of­fend­ers, she said.

“For chil­dren or teens who ex­pe­ri­ence rape or in­cest by a fam­ily mem­ber, re­port­ing is es­pe­cially com­pli­cated,” Weiss said. “Within fam­i­lies, there can be a de­pen­dence, ex­pec­ta­tion of loy­alty, and even a sense of en­trap­ment that en­gen­ders si­lence among its mem­bers.”

That was the case for Jes­sica Stallings, who said she was 12 when her mother’s half brother be­gan climb­ing into her bed at night. Be­fore she turned 18, she had en­dured four preg­nan­cies. The first ended in mis­car­riage, and one son died of a disease more likely to oc­cur in cases of in­cest.

Then her fam­ily forced her to marry her un­cle, she said.

Stallings later fled, and a court deemed the mar­riage il­le­gal be­cause of a “fa­mil­ial re­la­tion­ship.”

She built a sta­ble home in Fort Payne, Ala., for her sons, now 15 and 12. But in the win­ter of 2017, she dis­cov­ered that she was not yet free of the man she calls “Un­cle Lenny.”

De­spite DNA tests that proved in­cest, he main­tained parental rights to the boys and fought Stallings for visi­ta­tion. A judge ruled he was en­ti­tled to see them for three days dur­ing Christ­mas­time.

Her un­cle — Le­nion Richard Bar­nett Jr., 39 — could not be reached for com­ment, and his at­tor­neys de­clined to speak about his case with Stallings.

“It’s sick­en­ing,” Stallings said. “I’ve spent my en­tire life scared to death of my rapist, and now, I’m fight­ing him for cus­tody of my chil­dren.”

For Greear, the Wy­oming law­maker who sup­ports the con­vic­tion stan­dard, mak­ing it eas­ier to take away the rights of the ac­cused isn’t the an­swer.

“It’s a d--- shame that rape isn’t re­ported and not taken se­ri­ously enough by some,” he said. “What’s re­ally needed is to de-stig­ma­tize re­port­ing rape and pro­vide a safe en­vi­ron­ment for vic­tims to re­port.”

He said he has par­tic­u­lar con­cern for in­cest vic­tims who would have an “al­most im­pos­si­ble time re­port­ing.”

“And that’s” — he paused and sighed — “that is just a ter­ri­ble si­t­u­a­tion, and it doesn’t just hap­pen in Alabama.”

No es­cape

Th­ese laws — or the lack of them — could af­fect thou­sands of par­ents and chil­dren an­nu­ally. The es­ti­mated num­ber of rape-re­lated preg­nan­cies in the United States ranges from 7,750 to 32,000, but there’s no ac­cu­rate data for how many women keep those chil­dren, ex­perts say.

For those who do raise their chil­dren, it’s not un­heard of for the men to seek in­volve­ment in their lives. As many as 90 per­cent of rapes are com­mit­ted by at­tack­ers whom the vic­tims know, said Mar­alee McLean, au­thor of “Pros­e­cuted But Not Si­lenced: Court­room Re­form for Sex­u­ally Abused Chil­dren.”

“Many rapists com­mit as­saults as a way to dom­i­nate and con­trol,” said Lisae Jor­dan, di­rec­tor of the Mary­land Coali­tion Against Sex­ual As­sault. “Seek­ing cus­tody is just a con­tin­u­a­tion of that de­sire to dom­i­nate.”

Such cases are com­pli­cated by a his­tory of court find­ings that grant par­ents a fun­da­men­tal right to the care, con­trol and cus­tody of one’s child, said Ju­dith Lewis, le­gal di­rec­tor of the Bar­bara J. Hart Jus­tice Cen­ter, a pro­ject of the Women’s Re­source Cen­ter.

That makes judges re­luc­tant to re­strict parental cus­tody and in­clined to pre­sume both par­ents are ca­pa­ble, Lewis said, and the re­sult is state laws and court rul­ings that put the child in harm’s way and cre­ate emo­tional dis­tress that makes par­ent­ing harder for the fit par­ent.

“We don’t tell some­one that has robbed a bank that they can keep the money that they stole, yet the law al­lows some­one that com­mit­ted rape the right to par­ent­hood,” Lewis said. “It’s ap­palling.”

Ana­lyn Megi­son, a former Florida at­tor­ney who was al­legedly raped by a man she knew, fought him for years for cus­tody of her daugh­ter, who is now 14.

“When my case was go­ing on, Florida had no le­gal pro­tec­tion in place,” Megi­son said. “A rapist fa­ther was bet­ter than no fa­ther at all.”

Even­tu­ally, the man stopped pur­su­ing the case, af­ter the judge said he wanted a “full ev­i­den­tiary hear­ing about how the child was con­ceived,” she said.

Dur­ing that time, Megi­son be­came co-founder of Hope Af­ter Rape Con­cep­tion, an or­ga­ni­za­tion focused on chang­ing state laws to pro­tect chil­dren and vic­tims of rape. She worked with former fed­eral prose­cu­tor Charles Ehrhardt on model leg­is­la­tion in Florida with the “clear and con­vinc­ing ev­i­dence” stan­dard.

“Alabama must pass a law to ter­mi­nate an at­tacker’s rights,” Megi­son said. “You can’t keep th­ese women and chil­dren teth­ered to the rapist.”

Stallings has been fight­ing over cus­tody of her chil­dren since 2015.

Her un­cle, Bar­nett, re­cently was re­leased from jail on bail af­ter be­ing charged with pos­ses­sion of metham­phetamine and sub­ox­one. Their 12-year-old son was in the car with Bar­nett when he was ar­rested, said Tyler Pruett, pub­lic in­for­ma­tion of­fi­cer for the DeKalb County Sher­iff ’s Of­fice.

“I un­der­stand the fa­ther’s rights,” said Pruett, “but in this case — and we all know him around here — he’s not fit to par­ent.”

To­day, in­side her home in Fort Payne, Ala. — sur­rounded by pho­tos of her chil­dren, house plants, and framed in­spi­ra­tional quotes — Stallings says she wishes that she had re­ported her un­cle ear­lier.

“I had so much shame,” said Stallings, 32. “I spent my en­tire child­hood preg­nant and ter­ri­fied he was go­ing to kill me.”

One of the few times she felt free was when she lived in a Ron­ald McDon­ald House as her son Hunter was dy­ing. She has a tat­too of his nickname, “Pooh,” on her wrist.

Stallings says that she re­ported her rape to the DeKalb County Sher­iff’s Of­fice in Alabama soon af­ter the cus­tody fight be­gan, but a grand jury de­clined to take the case. The rea­son is sealed.

The sher­iff’s of­fice told Stallings that Bar­nett could lose cus­tody be­cause of his re­cent drug charges. But she is not op­ti­mistic.

“I lost faith in our courts a long time ago,” she said.

Stallings de­scribes her­self as “100 per­cent pro-life,” but says she feels com­pelled to “speak out and help other women” by show­ing that Alabama’s abor­tion ban is griev­ously un­fair with­out changes in child-cus­tody laws.

“I’ve de­cided I won’t be si­lenced,” she said. “I want other women in Alabama to know that their rapist may be in their lives — maybe for­ever — if this law isn’t passed.”

 ?? PHO­TOS BY AU­DRA MEL­TON FOR THE WASH­ING­TON POST ??
PHO­TOS BY AU­DRA MEL­TON FOR THE WASH­ING­TON POST
 ??  ?? Alabama res­i­dent Jes­sica Stallings, left, says she was 12 when her un­cle started rap­ing her. De­spite DNA tests that proved in­cest, her un­cle has main­tained parental rights to their two chil­dren and fought Stallings, 32, for visi­ta­tion. Birth cer­tifi­cates and mar­riage and di­vorce records she gath­ered, above, ul­ti­mately failed to help prove her case against him.
Alabama res­i­dent Jes­sica Stallings, left, says she was 12 when her un­cle started rap­ing her. De­spite DNA tests that proved in­cest, her un­cle has main­tained parental rights to their two chil­dren and fought Stallings, 32, for visi­ta­tion. Birth cer­tifi­cates and mar­riage and di­vorce records she gath­ered, above, ul­ti­mately failed to help prove her case against him.

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