Rapists shouldn’t have parental rights for the children they father via sexual assault. That’s a position most people can get behind.
Why, then, has the Wyoming Legislature struggled since 2015 to pass a law so sexual assault victims don’t have to share parental rights with their attackers? Thirty other states have such laws to protect victims.
And why does it appear like the 2019 version of the measure—House Bill 107, sponsored by Rep. Jim Blackburn (R-Cheyenne)—could be in danger of lawmakers yet again failing to put the law on the books?
Most of the problem has to do with some legislators’ insistence that a man must be convicted of sexual assault to have his parental rights terminated.
When HB-107 passed the House last week, that how the proposal stood.
Clear and convincing evidence
HB-107 did not, in its original form, require a rapist to be convicted of rape in order to lose his parental rights. That’s something the House added in.
When the Senate Judiciary Committee considered the bill on Monday, it voted to remove the House’s conviction requirement, and to instead use the standard that other states have approved: “clear and convincing evidence.” That was the standard originally included in the bill.
“Clear and convincing evidence” is the common standard used in Wyoming courts to remove parental rights for other reasons—for instance, in cases of alleged abandonment and abuse.
The Judiciary Committee voted 3 – 1 in favor of HB-107 after removing the House’s conviction amendment. It will now go to the full Senate.
But the discrepancy between the “conviction” standard passed by the House and the “clear and convincing evidence” standard adopted by the Senate Judiciary Committee could muddle the deal, and leave rapists in Wyoming at least another year’s worth of chances to be fathers in the eyes of the law.
The specter of “false accusation”
Blackburn and other supporters of the bill told the committee Monday morning that the House might not concur with the change because some of its members are so adamant about requiring a conviction.
Several state representatives in the House, led by Rep. Mike Greear (R-Worland) and Rep. Clark Stith (R-Rock Springs), are concerned that a woman could claim that her husband had raped her long ago and use it against him in a child custody case.
On Monday, a desperate Blackburn said he was willing to leave the conviction requirement in his bill because Wyoming needs to have at least have something in state statute to rape victims. “We can come back next year and fix it,” he said.
But the Senate Judiciary Committee chose to roll the dice and take the House’s conviction standard out of the bill.
Voting for the measure were Sens. Liisa Anselmi-Dalton (D-Rock Springs), Brian Boner (R-Douglas) and R.J. Kost (R-Gillette).
Sen. Michael Von Flatern (R-Gillette) said the issue was a perfect one to be studied as an interim topic and voted “no.”
No law, no recourse
TahNee Alton, a second-year law student at the University of Wyoming, testified about cases she found while researching the issue.
“There is not an automatic termination of parental rights. It is a process.”
In Alaska, the state Supreme Court refused to terminate the parental rights of a man convicted of molesting a woman he impregnated. The reason? Because the Legislature had not made it a law.
In Minnesota, a man and a woman met in a bar and she became intoxicated. Sexual contact that she did not remember occurred and she became pregnant. The woman filed for sole custody of the child, but the court decided that since there was no law in place, the father should enjoy “liberal parenting time.”
However, a Kansas court terminated a man’s parental rights to a child who was born after he raped the mother at a party behind a locked bathroom door. Several witnesses heard her say, “no no no, stop it,” and other protestations. Based on “clear and convincing evidence,” a Kansas civil court said the facts showed the rape occurred, and a conviction was not necessary.
The burden of proof in such civil cases is always on the woman, Alton explained. “A woman that becomes pregnant as a result of sexual assault has to bring this petition to court and win on clear and convincing evidence. There is not an automatic termination of parental rights. It is a process.”
The trouble with rape convictions
Several people who testified pointed out that convictions for sexual assault are rare.
Tara Muir, public policy director of the Wyoming Coalition Against Domestic Violence and Sexual Assault, said if the HB-107 requires a sexual assault conviction it will greatly reduce the number of women victims it would help.
“It’s a stereotype that a woman is going to use this in a family law case, and that she’s making it up to get back at someone.”
She shared a story about a Wyoming woman “who could hardly get law enforcement to investigate her rape, let alone have prosecutors convict the rapist.
“She has a very cute little two-year-old girl,” Muir said, “but she’s waiting every day to see if [the father] wants to take her to family court, establish he’s the father, and try to get joint custody.”
Muir said national research shows how difficult it is for victims to come forward, have a rape kit done, and convince a law enforcement investigator to put the case together for a prosecutor to get a conviction.
“There are so few false reports,” she said. “It’s a stereotype that a woman is going to use this in a family law case, and that she’s making it up to get back at someone.”
“Clear and convincing evidence” is the standard used in eight ways to terminate parental rights in Wyoming, Muir said. “We’re simply asking to add a ninth that puts rape victims on [an equal footing] with the others.”