Thursday, January 24, 2013

2013 Indiana Senate Bill 0174 Parental Rights of Rapists' - Legislation Part 8

Senator Ed Charbonneau has this session resurrected a previously introduced but not heard bill that would allow a parent who is the victim of rape to petition a court to terminate the parental rights of the alleged rapist. It has been referred to the Senate Committee on the Judiciary.

Senate Bill 0174 affects the following citations: IC 31-9-2-0.9; IC 31-17-6-1; IC 31-35-3.5. The synopsis is as follows:
Terminating the parent-child relationship. Allows a parent who is the victim of an act of rape from which a child was conceived to file a petition to terminate the parent-child relationship between the child and the alleged perpetrator of the act of rape. Requires a court to terminate the parent-child relationship if the court finds: (1) by clear and convincing evidence that the alleged perpetrator committed an act of rape against the parent who filed the petition to terminate the parent-child relationship and that the child was conceived as a result of the act of rape; and (2) that terminating the parent-child relationship would be in the best interests of the child.

Rape is defined in IC 35-42-4-1 as;
Having sexual intercourse with a member of the opposite sex when:
        (1) the other person is compelled by force or imminent threat of force;
        (2) the other person is unaware that the sexual intercourse is occurring; or
        (3) the other person is so mentally disabled or deficient that consent to sexual intercourse cannot be given.

During the previous session when this matter was discussed with me everyone seemed to be in agreement that it should be adopted. That is always a red flag moment for me for when there is unity of opinion that is a strong indicator that the nonconscious or emotional portion of the brain is driving decision making. When logic is applied there is often disagreement and sometimes opposite positions. This is usually seen in the scientific community and results from alternate points of view or framing. I don't believe that such is the case here but still there should be a logical effect examination.

This bill provides that the act of rape is prima facie evidence that termination of the parent-child relationship between the alleged perpetrator and the child is in the best interests of the child.

In simple terms this is saying that at first glance it is assumed that it is not healthy for a child to have a relationship with his or her parent who is a rapist.

The court shall terminate the parent-child relationship if the court finds:
(1) by clear and convincing evidence that the allegations in a petition described in section 4(2)(A) and 4(2)(B) of this chapter are true; and
(2) that termination of the parent-child relationship is in the best interest of the child

The clear and convincing standard is what is called the mid-level burden-of-proof. In criminal trials the standard is proof beyond a reasonable doubt. This is generally attributed to certainty of about 95% or greater. In civil actions the standard is by a preponderance of the evidence. That means 51% or more of the evidence is in favour of the verdict. Clear and convincing is used in civil actions where there may be a substantial loss of liberty involved such as in this scenario or when CPS initiates a custodial action. Clear and convincing requires much more than a preponderance - >50% -- but not beyond a reasonable doubt -- >95%. It is generally attributed to a level of certainty of about 75%.

I am initially disturbed by this legislation in that as a specialist in high conflict child custody cases I immediately see the potential for abuse. Just think of the false allegations that are often made in petitions for protective orders that are used as part of a child custody litigation strategy. I was falsely accused of rape in a protective order petition once. The police actually came and testified against my stalker accuser. One only need look to The Innocence Project to see the list of “rapists” who were convicted beyond a reasonable doubt but later release upon a showing that they could not have been the perpetrator. Imagine being sent to prison for the duration of the childhood of your son or daughter and losing all custody rights in the process all based upon a false allegation.

I would first like to see language added to this bill that requires disclosure of any other current or past child custody proceedings involving the accusing parent. This would allow both the judge and accused parent to examine if the accuser has a pattern of this type of behaviour or may be using it as part of a child custody strategy. Further, that this law cannot be used as an independent action if a divorce or paternity proceeding is currently pending between the parties. Finally, that if the alleged victim of rape did not make a prior report to law enforcement or at a minimum have a rape kit test performed then there is a presumption that there was no rape and that the alleged victim must first establish that a rape occurred before proceeding further.

If you have been falsely accused of any type of substantive matter in a child custody proceeding then please visit my website and contact my scheduler to make an appointment to meet with me.

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