California could make it easier to strip alleged rapists of child custody

LOS ANGELES - California lawmakers are considering legislation that would make it easier to strip alleged rapists of parental rights if a child was conceived during the alleged assault.

"No survivor should be forced to co-parent with the person who raped them," state Sen. Caroline Menjivar, D-Panorama City, told the Senate Judiciary Committee last month. "It makes it likely that a survivor will be forced to deal with ongoing abuse and harassment."

California has long terminated the parental rights of convicted rapists. Senate Bill 1364, authored by Menjivar, would create a presumption that a father is also unfit to have child custody if the court finds "clear and convincing evidence" that the child was conceived from sexual assault. Exceptions would be allowed if both parents voluntarily agreed to share parental rights.

Elizabeth Kristen, legal director of the California Women's Law Center, which supports the legislation, explained that there are different legal standards of proof.

She said a criminal court conviction requires proving guilt beyond a reasonable doubt, which is the highest standard, whereas winning a civil court case requires only a preponderance of evidence, meaning one party must show that their claims are more likely true than not. Clear and convincing evidence falls in the middle.

"This would be a high burden, just not as high of a burden as we have now," Kristen said. "It would still be a difficult standard to meet."

Those who felt a judge had ruled in error could appeal, she added.

It's unclear how many child custody cases could be affected in California. A spokesperson for the California Department of Public Health said the agency does not track how many births result from sexual assault. According to the Centers for Disease Control and Prevention, roughly 3 million women nationwide have experienced a pregnancy from rape.

The legislation would not alter child support, as California law allows payments to continue even when a parent has lost custody or visitation.

David Bullock, a spokesperson for the San Fernando Valley Alliance, was the only person who spoke against the bill during the judiciary committee hearing. "It is every child's right to know who their natural mother and father is," he said. "Each parent plays their own roles that are complementary to each other; without one or the other the child misses out."

Bullock said the committee had previously expressed support for the concept of rehabilitation. He argued the legislation would "squash that redemption."

The bill passed the state Senate last week with bipartisan support and now heads to the Assembly.

The Rape, Abuse and Incest National Network is sponsoring the bill. Known as RAINN, it's the largest survivor advocacy nonprofit in the nation.

Sandi Johnson, the organization's senior legislative policy counsel, said rape is notoriously hard to prosecute. Victims often decline or delay reporting the offense to police due to shame, intimidation or a fear of not being believed, she said. Those who file police reports can encounter other barriers.

"The criminal justice system is not aligned with the realities of sexual assault," Johnson said. "The investigations are oftentimes not done using trauma-informed techniques or processes."

An NBC News investigation last year found violent sex crimes had a lower arrest rate than other violent crimes in eight major urban areas nationwide, including Los Angeles, San Francisco and San Diego County. Less than 4% of the reported rapes, sexual assaults or child sex abuse allegations resulted in a sex crime conviction.

Johnson said nearly half of the states have passed similar legislation, including Maryland and Arizona.

One survivor said the measure, if signed into law, would give her and others solace.

The woman, who requested her name be withheld due to ongoing litigation, counts herself among the roughly 3 million women nationwide who became pregnant from an alleged sexual assault. She said she reported it to police and sought medical care and therapy - but because there was no rape conviction, the father was later awarded joint custody of their children.

Every time she hands her children over to their father, she said, it feels like they're being sucked into a black hole. The exchanges, which take place at the children's school in Southern California, leave her scared and depressed for days.

"I'm just being told to get over it," she told The Times. "I'm being asked to co-parent like we're a regular couple who got divorced."

She said being forced to share custody compounded her trauma and made it harder to heal.

"I grew up in a Christian household and I really asked why God gave me these beautiful twins if I had to share custody with my rapist," she said. "That was a big philosophical life question for me - but I'm hopeful because of this bill."

-Those who have been sexually assaulted can contact RAINN for support at (800) 656-HOPE.

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