The Custody Battles Awaiting Mothers of Children Conceived in Rape
Moderator: Since the end of Roe v. Wade, and in fact even before, many states have enacted bans or effective bans on abortion. One of the most fraught questions has been, what exceptions should be made, and when, if any at all? The exceptions in the case of pregnancy from rape or incest used to be considered necessary, even within the pro-life movement, and that's all changed. Today, 10 states have no rape exception in their abortion restrictions. More will likely consider moving in that direction this year, and as some members of Congress weigh the idea of a federal abortion ban, the question now concerns every one of us.
Eren Orbey: I think few people understand how common this scenario actually is. According to the CDC, almost 3 million women in the US have become pregnant as a result of rape.
Moderator: Recently, the New Yorker's Eren Orbey, took a closer look at what happens when a woman conceives during an act of sexual assault and what happens when those pregnancies go to term.
Eren Orbey: There's one woman in particular whose story really stuck with me. I'm going to call her Teresa. She told me that when she first discovered she was pregnant, this was back in 2016. She was in her mid-30s, she was in a good place in her career, and she felt ready to have a child.
Teresa: The day I found out I was pregnant, I went to Rite Aid because my period hadn't started. I said, let me just go to Rite Aid and take a pregnancy test. I took it right there in the bathroom of the Rite Aid, in the dirty restroom, I did the pregnancy test. It was positive. When I saw that, I just lit up. I wanted the whole store to know that I was pregnant.
Eren Orbey: She found out at her first prenatal appointment that she was actually pregnant with twins, a girl, and a boy. During her pregnancy, her relationship with her partner at the time ended up falling apart, but she still wanted to raise the twins. She felt that she had the support she needed from her family to make it work.
Teresa: When I gave birth in the hospital, they were asking about what the twins' last name was going to be, and who the father is. I said, "I want it to be my last name," and I put down my ex as the father, and I filed for child support because I needed financial help for two babies. We had a hearing in November of 2017. In that hearing, I'll never forget it. The first thing the judge said out his mouth was, "The gentleman is not the father." I said, "What?" I said, "There's no way. That's not possible." He must have paid somebody to take his paternity test, or he must have lied, or they must have made a mistake.
Now, at this time, I knew that I had been sexually assaulted, and it was during the time that I was with my ex. I never thought in a million years that the gentleman could be the father of the twins. In order to eliminate him, I asked him to take a paternity test and he complied.
Eren Orbey: What Theresa told me is that she was raped by a co-worker on a trip to Las Vegas in the summer of 2016. He maintains that the sexual encounter was consensual, but she says that he forced himself on her despite her repeated attempts to tell him no. At the time, she didn't know much about the procedures for reporting sexual assault and she didn't even think to take it to the police. She says she didn't speak to him about it again until this moment, more than a year later, when she asked him for the paternity test to rule him out as a potential father.
Teresa: The day that I got the email for the results, my heart sank to my stomach. I was driving back from lunch, checking my email while I'm driving and it's a 99.9% he was the father.
Eren Orbey: What was going through your mind at that time?
Teresa: I had so many mixed feelings. I can't even describe it. It was just like, confused, angry. It wasn't consensual. I don't know him. I never lived with him. I was never in a relationship with him. It was just like an explosion of feelings and emotions in my mind.
Eren Orbey: With abortion laws changing, more and more women are going to find themselves in situations like Teresa's. Carrying pregnancies to turn that resulted from rape. I don't think we're talking enough about what happens afterward. What it's like to live with the reality of raising that child.
Teresa: People who make laws haven't been raped, or they don't know what it's like living in our shoes and what our world is. I feel like I live in a bubble because I'm a single parent of twins, which is hard naturally by itself, but also twins conceived from rape and sharing custody with my rapists. No one really can relate to my struggle, no one can relate to my world.
Eren Orbey: In my reporting, I talk to a researcher at the University of Virginia named Lucy Guarnera. She works with the Institute of Law, psychiatry, and public policy, and she's one of the very few people who have studied this issue in depth. She says that once women give birth, they're often tied to their assailants through the legal system, through the family court system for the next 18 years.
Lucy Guarnera: We've got 50 Different states in this country with 50 different systems, but in many states, you require a conviction for first-degree rape, which is really hard to come by even if there's a lot of evidence in order to terminate parental rights of a rapist father.
Eren Orbey: You might wonder why a man who fathers a child through rape would even want custody or visitation or parental rights or any involvement with their child. For one, there's the issue of money. Generally speaking, the more custody a parent has, the less they'd be required to pay in child support, but it can also be about control. As part of her research, Guarnera talked to dozens of women in these situations, and the stories they told her are pretty grim.
Lucy Guarnera: I had multiple participants talk about rapist fathers who, while they were pregnant, or shortly after they gave birth, threaten them or blackmail them and said, "Hey, if you go to police, or you continue cooperating with police, I am going to make your life a living hell. I am going to get custody and visitation access to your child, I'm never going to stop until I have full custody. You better drop that criminal case right now." In some circumstances, this worked.
I have one woman I'm thinking of specifically where she wanted to place her child for adoption. The perpetrator said, "If you place that child for adoption, I will get custody because you've relinquished your parental rights. Unless you agree to drop this criminal case." She did because she was more concerned about securing a safe life for her child than she was about potentially landing this guy in jail.
Eren Orbey: I found it really striking when she started reading to me from literal transcripts of the conversation she's had with these women.
Lucy Guarnera: One of my participants said to me when I asked why you think your assailant went after custody. She said, "To hurt me. If he couldn't have me, he wanted what I had. Oh no, he doesn't care about my son at all, at all. He cares about making my life miserable. I know that sounds really conceited, but I swear to God, that's what it is." Another participant shared a similar sentiment, she said, "He made it very obvious that he didn't want to be a father. He wanted to control me. I think it's just all for control, you know. He didn't want me to have the baby, and then me having the baby, I was taking control of my own body. Taking control of my decision to have her.
The next best thing to ruin me for disobeying him and taking that power away from him is to try to take her away from me. I don't know if a power trip is the word I'm looking for, but I think that's what it is and it's all just for power. Isn't that what sexual assault is? You just want to overpower your victim."
Teresa: As far as child support I opened and closed so many cases because I wanted to put him on but then I was scared. I was scared that he would just turn into this monster and just be so harsh towards me, and I just wanted to keep the peace. I suffered because of that.
Eren Orbey: Teresa says she kept things pretty informal between her and the twins' dad for a while. He'd help out with money, or he'd come over to visit once a week, but he didn't want a formal court arrangement. When the twins were two, Teresa did finally file for child support, because she felt that she was eligible for more money than she was getting through the informal arrangement with their dad.
Teresa: His attitude towards me totally changed. He said, "Okay, well, I want 50/50 custody because that should be half and I'm entitled to 50/50 custody." I said, "Well, I don't agree with that, and maybe when they get older, if they want to be with you more, maybe it should be their choice, but I don't agree with that right now. They're not even two years old yet and I don't even know you, and I don't know your girlfriend, and I don't even know your family."
Eren Orbey: When I spoke to the twins' dad, he denied that his pursuit of custody is in any way tied to money, and he declined to answer other questions about the case. Ultimately, it went in front of a family court judge. For various reasons, the rape allegations were essentially set aside. The judge told Teresa basically, that while she was entitled to her version of events, her coworker was also entitled to his. He was granted partial custody of the toddlers. Teresa says, the day the kids first went to his house, under that arrangement is burned into her memory.
Teresa: I never will forget how I felt. I had the most anxiety. I've never had anxiety in my life, but that was the most anxiety I had. My daughter actually threw up in the car seat putting him in his car because she didn't want to go. They didn't know what was happening to them. They were two, just turned two in April at the time, and this is in June. I just felt sick to my stomach, like, what is happening? Why do I have to put my kids through this? It was the worst day in my life.
Eren Orbey: I want to hear more about how this process has affected your kids. Have you thought about how you're going to explain your relationship with their dad to them?
Teresa: Yes. I think I'm going to be honest. I'm going to tell the truth. I'm not going to do anything that is negative because in our orders it says that neither parent shall speak negatively. We have to keep all that stuff private from them. I want to be honest with them when they're of age 18 or older, I want them to know the truth. I am an advocate for sexual assault survivors.
It's a cautionary tale to men and women, and I want my daughter to be safe. I want my son to know no means no and stop means stop. It doesn't matter, even if you guys had sex before or even in the middle of having sex, no means no. Stop means stop. I think it's fair that they know the truth because we weren't in a relationship. That's a fact. We weren't living together. We weren't dating. He was just a coworker who unfortunately sexual assaulted their mother and he asked custody.
Eren Orbey: For Guarnera, the researcher at UVA, the biggest obstacle facing women in these situations is a lack of access to the right information. So few women who find themselves pregnant as a result of rape know what to do, who to turn to for legal advice, or even how to begin navigating the family court system.
Lucy Guarnera: So many women I talked to brought up these unintended consequences of doing one thing that they just had no idea would have a negative effect on them later on. If they had known, they could have chosen differently. For example, one woman I spoke to talked about how she chose to put the perpetrator's name on the birth certificate because she felt like this was some affirmation of what he had done of saying, yes, he really is the biological father of this child.
She thought it would be easier for her to get child support that way. It turned out later on, the fact that his name was on the birth certificate made it much easier for him to sue for custody because it was some acknowledgment that he was a "real parent". A woman I interviewed explained that towards the very end of her pregnancy, she's about to give birth, pregnancy resulting from rape, she wrote on Facebook to a friend, "Hey, I'm, I'm excited about being a mother. I can't believe that this baby's about to be born."
In fact, that Facebook post was used in court in a custody case against the perpetrator to argue that she hadn't actually been raped because the thinking goes, "Hey, if you were really raped, you wouldn't be happy about a pregnancy or about an impending birth, so you must be lying."
Eren Orbey: There is another procedure, a civil rather than criminal one that some states have adopted. It came about during the Obama administration. In 2015, Obama signed a law encouraging states to make it easier for women in Teresa's case. Essentially, it allowed states to terminate parental rights of a father without a criminal rape conviction. It just requires enough evidence, clear and convincing evidence it's called, that the child was conceived in rape. This is a lower standard of evidence than the criminal, beyond a reasonable doubt one, but it's still difficult for women to prevail. There's not much research about how common this procedure is, how often it's used, or whether it's successful in protecting women in Teresa's situation.
Lucy Guarnera: A lot of these women's outcomes depended on-- and I hate to say it seems like arbitrary chance whether they happened to be raped by someone who was going to interfere with their lives or not. Whether they happened to encounter a police officer or a prosecutor who knew enough to do the right thing. This is arbitrariness and this is not a good way to assure that women are getting what they need.
Eren Orbey: You have to understand, we're talking about a legal system, judges, prosecutors, social workers, many of whom just don't understand how a woman would act after becoming pregnant as a result of rape. For instance, even reading the transcripts from some of Teresa's hearings, I was shocked how quickly the judge seemed to assume that she was just some disgruntled ex. It was almost as though once her twins were born, any consideration of those circumstances around their birth was relegated to this past. It was like a door was closed and she couldn't go back there.
Teresa: I've been told to get over the rape, and that happened in the past. I compared that to having a cancer diagnosis. You wouldn't tell somebody, get over your cancer. PTSD, rape, sexual assault, those survivors sometimes they can get over it and go to therapy and forget about it. It's a traumatic experience that now I have to face every day. To call my twins I have to go through him. I can't get over something that mentally if I wasn't strong enough and stable enough, I would've taken my life.
Eren Orbey: I'm wondering if you'd known from the start who the father was. Would you have considered other options maybe arranging for an adoption or trying to get an abortion? It's difficult to think about because your kids are now such an important part of your life. I ask because it must have been really daunting to realize that both you and your children were in some way going to be exposed to someone who'd harmed you.
Teresa: Correct. If I would've known, I would've reported it sooner. I would've reported the assault. I would've tried to have the law hold him accountable to what he did so that for my protection and for my children he would have limited rights, if any, at all. As far as the twin pregnancy, if I did know that he was the father, I still would've kept them.
I have great support from my family. My parents come from big families, so I felt pretty good about knowing that I was going to have a village and family support to keep this pregnancy. I think I would've just hoped entrusted that the laws and the legal side would've protected me from being forced to anything that I didn't feel comfortable or agree with.
Eren Orbey: I went into this story really tightly focused on the question of rape exceptions in abortion legislation, how they could prevent the situations that came up for the mothers I spoke to. As a result, I was primed to see the absence of rape exceptions in this legislation or the removal of them as a catastrophic event.
It is, but the reality is these exceptions are far less effective than we assume they are. They create this false impression that we're taking care of all rape survivors when actually we're not.
On the one hand, if you support full abortion bans with no exceptions, you need to recognize that what that means is mothers might end up sharing custody against their will with their rapists. On the other hand, if you advocate for reproductive choice, you still need to acknowledge that these exceptions aren't doing nearly enough or nearly as much as we think they are to support rape survivors, and we need to do a whole lot better.
Moderator: Contributing writer Irene Orbe. He wrote about an anti-abortion activist quest to end the rape exception. You can find that at story @newyorker.com.
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