One mom in Florida fought to stop the man she says raped her from getting parental rights of her daughter. But victims in many other states are still not protected. In an opinion piece, HLN's Lynn Smith digs into the problem.

By Lynn Smith
Updated November 15, 2019
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Not only should a rapist be in jail, they surely shouldn’t have any rights to a baby that rape may have produced, right? Sadly, the laws haven't always been so clear. Just ask, Analyn Megison who says she was raped in Louisiana in 2003. She chose to have her baby and then seven years later her alleged rapist sued her for custody.

How is that possible? Megison had moved to Florida where there was no law to prevent him from getting custody and she set out to do something about that. “It was shocking,” she told me on HLN’s On the Story with Lynn Smith. “There just were not legal protections in place to prevent that from happening."

At the time, Florida was just one of many states that have no firm and solid law in place to prevent a rapist from gaining custody or partial custody of their biological child. Are you shocked, too?

Megison worked tirelessly to change this in her state of Florida, and she did. “I started researching different policies and different states, connecting with other survivors that I found were involved in this,” says Megison. She also reached out to her former law professor at Florida State University and he helped her draft the law that ended up getting passed in the state. “That was something that went through unanimously, bipartisan support, because there wasn't anything to prevent this,” she says. A victim’s custody battle with their rapist relied on a judge’s decision. “You have to have something in place so that it isn't just a gamble like that,” she adds.

This came after an emotional and costly evidentiary hearing where Megison was forced to relive her worst nightmare and detail her sexual assault at the hands of the man who was fighting to gain custody of her daughter. “It was absolutely gut-wrenching. It was like being raped all over again in an open court,” recalls Megison, who was also terrified she wouldn’t be able to protect her child from this.

She also fought to ensure a conviction was not necessary for denial of parental rights in situations like hers and points out that it's not needed in cases of child abuse, substance abuse, or neglect. (You can learn what the burden of proof or exceptions are in your state.)

More Needs to be Done to Stop Rapists From Gaining Custody

It’s unclear how many babies are born from rape. The Centers for Disease Control and Prevention (CDC) estimates almost 3 million women have experienced a rape-related pregnancy during their lifetime, but that number has to be conservative considering research has found majority of sexual assaults go unreported. The National Conference of State Legislature (NCLS) cites various studies over 20 years and found 17,000 and 32,000 rape-related pregnancies happen each year in the United States.

And here’s the simple truth: Without a law to prevent a rapist from having parental rights, you are telling children a man who has sexually assaulted a woman is as good as any other father. That’s the argument Analyn Megison is making in her plea for change.

There have been some national changes. There was a federal law passed in 2015 that tried to incentivize states to refuse parental rights of a rapist if there's clear evidence it was rape; states receive grants if they pass a law. It’s called the Rape Survivor Child Custody Act. Did we really need to show states dollar signs to make them realize this was important to act on? Still, only 30 states terminate a rapist’s right to parent while 20 only have some form of restrictions, according to the NCLS. And many states require conviction of sexual assault.

Until June 2019, there was no statue whatsoever regarding terminating parental rights for a rapist or in the case of incest in the state of Alabama. That's the same state where the strictest abortion ban in the country had passed in May 2019 preventing abortion even in cases of rape or incest. Think about it: A woman would have had to have a rapist’s baby and co-parent with him.

The argument for Alabama’s abortion law was to protect the life of an unborn child at all cost and with no exceptions. The lawmakers maybe realized they forgot to address the glaring loophole: Rapists had parental rights in that state when that law passed. While some may argue that changing the law closes that loophole, does it? Alabama is one of the states requiring a conviction to terminate parental rights.

Imagine what legally is left wide open for women whose rape accusations haven’t been believed (despite the fact the false reporting rate is about 2 to 10 percent) or haven’t received the justice they deserved in court.

If the life of an unborn child is so important, once they are born, should we really be protecting rapists over children?

Lynn Smith is the host of HLN's On The Story, which airs 12-2pm ET.

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