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Bio Fathers by Sexual Assault…Rights? Really?

Shortly after I graduated from law school in 2010, I became aware of a law review article that had been written by a woman named Shauna Prewitt of Georgetown Law.  The topic of the article was the gaping hole in the law regarding the rights of men who conceived children with women whom they raped.  The article stated the statistic that at that time, 2/3 of the jurisdictions in this country did not have any laws on the books that prevented a man who became a father through rape from gaining custodial rights to the child conceived by his assault on the child’s mother, in the event the mother chose to keep the child and raise it (rather than have an abortion or place the child for adoption.)

1 in 5 women will be victims of sexual assault in their lifetimes... and you CAN get pregnant if your're raped, in spite of some politicians bizarre beliefs.

1 in 5 women will be victims of sexual assault in their lifetimes… and you CAN get pregnant if your’re raped, in spite of some politicians bizarre beliefs.

At the time the article was published in the Georgetown Law Journal (link to the full article here), Utah was among those states with NOTHING preventing a rapist from having this kind of continual access to his victim with the blessing and aid of the courts.  However, I am happy to note that the legislature remediated that situation in 2013, at U.C.A. 76-5-414:

“76-5-414 Child conceived as a result of sexual offense — Custody and parent-time.

(1) A person convicted of a violation of Title 76, Chapter 5, Part 4, Sexual Offenses, except for Sections 76-5-401 and 76-5-401.2, that results in conception of a child may not be granted custody or parent-time rights by a court regarding the child, unless:

(a) the nonconvicted biological parent or legal guardian of the child consents and the court determines it is in the best interest of the child to award custody or parent-time to the convicted person; or

(b) after the date of the conviction, the biological parents cohabit and establish a mutual custodial environment for the child.

(2) A denial of custody or parent-time under this section may not in and of itself:

(a) terminate the parental rights of the person denied parent-time or custody; or

(b) affect the obligation of the convicted person to financially support the child.”

Notice that parental rights are not automatically terminated in these situations.  This means that unless it happens through a parental rights termination petition, the rapist is still on the hook for child support.  Which just seems like sweet justice to me.

Do note the language of “may not” up there in section 1…”May” is permissive language.  That means the court May Not, or it just May anyway.  Which is interesting…It’s like an escape clause for the court to award custody and parent time in these instances regardless of the circumstances.  Which is, quite frankly, Odd to me.  The statute already allows for exceptions in certain situations; what’s up with the “may” language?

Another interesting thing to pay attention to:  The exception to this statute is for individuals who are convicted under the sex with minors statutes.  Why they are the exception to the rule is beyond me.  In looking at the legislative notes available online, I see no reason or justification for this.  Another thing to just be aware of.

This is another one that we just might have to wait and see what the courts do.  Sometimes the spirit of the law gets lost in the letter…

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