In my first two posts on the mixed legacy of Stanley v. Illinois, I discussed my preferred relationship approach, some background about the family, why I think some justices may have seen the case as involving racial as well as gender equality, and how I think that could have made a difference. In this last post, I address one aspect of the negative legacy of Stanley: the continuing vitality in state legislatures of the idea that paternal rights should be recognized in every man, including a man whose rape of the mother resulted in the child’s conception.
Let me give you a modern example to chew on. This year, the Maryland legislature considered and refused to pass for the ninth time a bill to remove paternal rights of men when the child’s conception occurred as the result of a rape. Remember that this is 2017, and Stanley was decided 45 years ago. During much of the intervening 45 years, usually as the result of legislation enacted by state legislatures after Stanley, marital and non-marital fathers have had the same rights as marital and non-marital mothers to the custody and guardianship of their children and to decide about a child’s adoption, regardless of whether the parent exhibited any commitment to care. A number of states have limited those rights where the conception occurred as the result of a rape, but not all. Even where the rights have been limited, however, the negative legacy of Stanley lingers. I’ll demonstrate that point by a close examination of Maryland’s most recent failed attempt.
Maryland’s legislation would have created a process to address the paternal rights of a man to a child whose conception was the result of the man’s rape of the mother. Under the proposed legislation, the paternal rights of some of these men could be terminated. If the rights were terminated, the man would be denied the opportunity to make claims of custody and guardianship of or access to his biological child.
Bill with the same goal have been introduced and failed in each of the prior eight sessions of the legislature. The bill failed this time after a conference committee did not resolve the differences between the bill passed by the Senate with the bill passed by the House. The House bill went further in terms of allowing the termination of paternal rights. It is the better example for my analysis since, in my view, even the House bill protects paternal rights in ways that disempower women without enhancing the care and well-being of children. I think the bill may protect only a small number of mothers who want to protect themselves and their children from an ongoing relationship with the rapist.
Under the House bill, a man’s paternal rights to a child conceived without the consent of the mother can be terminated if he is convicted of nonconsensual sexual conduct, which includes sexual assault on the mother in the first or second degree and incestuous intercourse with the mother. In the absence of a conviction, the man’s paternal rights can be terminated if the woman proves by clear and convincing evidence that nonconsensual sexual occurred. Even though Maryland has no marital rape exemption, the House bill also provides that a husband’s paternal rights can be terminated only if he has been convicted of nonconsensual sexual conduct.
In addition to proof of nonconsensual sexual conduct, termination of paternal rights requires a finding, based on clear and convincing evidence, that termination is in the best interest of the child.
A finding of termination eliminates the man’s right to custody, guardianship, access to and visitation with the child. It also terminates the man’s child support obligation. If the man is indigent, he is entitled to have counsel provided for him.
In terms of Stanley, many things are interesting about the proposed bill in addition to the fact that it followed eight previous failed attempts.
First, the bill assumes that all biological fathers are the same, just as the Stanley court assumed, and that all of them have the same rights as mothers to be recognized as parents. In fact, after Stanley, the Court came to a more nuanced place about the rights of biological fathers to be recognized as legal fathers. Biology, according to the Court in Lehr v. Robertson , offers a man an opportunity to develop a relationship with a child that is shared by no other man, but biology is not enough. If a man does not seize the opportunity, the Constitution does not require a state to recognize the man’s claim to legal fatherhood. A rapist who had no further contact with mother and child (or failed to file postcard with a state registry, as provided by New York law at the time of Lehr), therefore, could be constitutionally denied all rights to parenthood.
Second, the bill prohibits termination unless the court finds by clear and convincing evidence that termination is in the best interest of the child. If the bill also denied paternal rights to men who fail the Lehr test, this provision would apply only to men who had some relationship with the child or who, at the very least, had admitted paternity prior to an action for termination. But the bill doesn’t do that. Instead, it follows the Stanley path and treats all men alike. As a result, the bill allows for a scenario where a man who has never seen or done anything for the child may get to keep his paternal rights because the mother does not have the resources to mount a convincing case against him about the child’s best interest.
But it gets worse. Because the bill follows Stanley’s lead of treating all men alike, regardless of prior involvement with the child, it puts impoverished women in a particularly bad position. Take, for example, the case of a mother who needs public benefits such as cash assistance or Medicaid in order to support her child. Recipients of these and some other public benefits are required to assign their rights to child support to the state and to cooperate in the establishment of paternity and the order of support. If the mother persuades the state that the child is the result of a rape, she may get a waiver, but waivers are hard to come by.
Once the paternity and child support suit is brought by the state under the assignment, the father can counterclaim for custody and visitation. No lawyer represents the mother in such a case; the lawyer who brings the original suit represents the state under the assignment, not the mother. If the mother tries to defend against the custody and visitation claim on the basis that the child is the result of a rape, the father, if indigent, would be entitled to a lawyer paid for by the state under the House bill. No lawyer would be provided for the mother.
Third, the bill relieves the man whose rights are terminated of the duty to pay child support. The bill says, in effect, that child support is a quid pro quo for rights with respect to the child. That is contrary to the usual understanding that child support is an obligation owed by people who participate in the creation of a child. In theory, at least, child support is about the child’s well-being, not the father’s sense of entitlement or grievance.
Stanley provides something of an explanation for the anomaly. Remember that the Stanley court requires the state to respect paternal rights to the same extent that it respects maternal rights. In the 1970s, when feminist claims were only beginning to be heard, maternal roles and paternal roles were openly recognized as distinct. Fathers were responsible for financial support of their children, and mothers were responsible for physical and emotional support. Many states, including Maryland, did not place an equivalent duty of child support on mothers and fathers until five years after Stanley in a decision based in the state’s equal rights amendment.
Fathers “earned” their right to a place in a family by satisfying the financial duty. If a father satisfied his duty, he “should” be empowered to do what fathers do in families. The tradition makes sense of a decision to relieve a man who is deprived of the usual power to make decisions about his child from the usual duty of the father to provide financial support. It makes no sense, however, once one rejects the traditional approach of differentiated male and female family roles or if one puts the needs of the child over a parent’s sense of entitlement. Including this provision today, 45 years after Stanley and long after gendered roles in the provision of financial support have been rejected as a form of sex discrimination, is indefensible.
The House bill differs from Stanley in one key respect. It provides greater protection for the married father to keep his paternal rights than it provides for the unmarried father. The married father’s rights can be terminated only if he is convicted of nonconsensual sexual conduct; the unmarried father’s rights can be terminated upon conviction or upon clear and convincing evidence that he committed nonconsensual sexual conduct. Of course, if Peter Stanley had been married to Joan Stanley, the state could have terminated his parental rights only upon a showing of neglect or abuse, so the case would never have gone to the Supreme Court. The Court’s decision placed the unmarried father, Peter Stanley, in the same position he would have enjoyed had he been married to Joan Stanley.
Why is marriage a privileged status in the House bill, even though Stanley points to the opposite path? Perhaps the answer is that the legislators want to encourage marriage. If that’s the case, the consequence is likely to be to also privilege European-American fathers, because marriage rates, while lower now than in the 1970s, still tend to be higher among European-Americans than among African-Americans. An equally likely motivation is a lingering allegiance among legislators to the traditional claim that a husband can’t rape his wife, no matter what the criminal law now says.
The bill is, at best, a crabbed approach to the interests of a woman who was raped, gave birth to the child and wants to raise the child. Nonetheless, many of the bill’s features are predictable, given what the Court did in Stanley 45 years ago. If all men and women are the same, regardless of their engagement in caring for a child, then a child should rarely be deprived of an opportunity to have a “father,” even if the “father” raped the child’s mother. And if mothers need to be under the control of a man, a rapist might be as good as any other man.
What would a better bill look like? A better bill would respect and valorize all parents who commit to caring for a child and avoid empowering people who assert rights without entering into relationships. A better bill would focus on and seek better outcomes for parents who lack privilege. A better bill would not tread on the autonomy of a committed parent because the parent is female.
I think a better bill would differ from the failed House bill in at least six ways. Here’s my list:
- Paternal rights are recognized only where the biological, adoptive or marital father demonstrates a history of care for and connection with the child or otherwise satisfies the Lehr Mere biological or marital connection is not enough. Therefore, no termination is required where the man who committed the nonconsensual sexual conduct has not satisfied Lehr, because no paternal relationship is recognized in the first place.
- Where a man demonstrates his entitlement to recognition as a father because he has satisfied Lehr, termination is allowed where the mother demonstrates that the child is the result of nonconsensual sexual conduct, either through evidence of the man’s conviction or through clear and convincing evidence of the conduct. No discretion is allowed for a court to deny termination, because the mother should not be forced to have a continuing relationship with a man who committed a violent act against her as extreme as first or second degree rape or incest. If the mother decides to allow the man to have a relationship with the child, the mother’s decision provides no basis for a court to order the mother to continue the relationship.
- The termination proceeding follows the same procedures as are used in other termination of parental rights cases.
- The termination of parental rights which is ordered because of rape does not relieve the biological father of the duty to provide child support.
- Married and non-married fathers are accorded the same protections from termination.
- The duty to assign child support and to cooperate in the establishment of paternity and support is eliminated from public benefits law unless the state proves in a judicial proceeding that a mother’s claim of rape is not sustainable. The mother is entitled to have counsel provided in such a proceeding.
A bill that incorporates at least these six features, it seems to me, starts to address the negative legacy of Stanley. Such a bill would provide sufficient procedural protections to men who are wrongfully accused of nonconsensual sexual conduct so long as they have also demonstrated a commitment to caring for a child. At the same time, if conception occurred without the mother’s consent, the man’s claim of parenthood could be challenged with a greater likelihood of success, particularly if he has never made a commitment to the child’s care. The mother’s opportunity to care for the child is better protected against unwarranted attacks by a man using judicial proceedings without good cause. Most importantly, a woman who has made the commitment to care and raise a child regardless of the pain she suffered from the assault will have greater autonomy. The law will not indulge in an assumption that a man with a biological or a marital tie to a child is entitled to the same or even greater authority than the mother has in terms of deciding what is best for the child. Further, the mother will not have to make a choice between her parental autonomy and financial security for the child, if that security depends in any way on support from the biological father or from the state.
I’m hoping that year ten will prove to be the magic year for Maryland to come to terms with Stanley’s negative legacy and to treat rapists as they deserve when it comes to fatherhood. I look forward to hearing from readers of Concurring Opinions about my views.