Tuesday, January 12, 2016

2016 Indiana Senate Bill SB 82 Rape and termination of parental rights

Senator Ed Charbonneau has introduced Senate Bill 82 relating to parental rights in alleged rape cases. The bill has been referred to the Committee on the Judiciary. It is scheduled for hearing on 20 January 2016 at 9:30 a.m. in Room 130. The companion bill in the House is HB1064.

This bill is a modified version of the one that has been previously introduced. In discussions I had with legislators in 2012 regarding the version introduced that year I expressed concern about the burden of proof and that men could suddenly find themselves facing a rape allegation because they filed a paternity action.

This bill provides that a woman who alleges that she conceived a child through an act of rape may file a petition with the probate or juvenile court to terminate the parental rights of the alleged father. 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 bill further provides that 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.”

When it was reintroduced in 2013 I wrote this about the clear and convincing standard;
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 not in opposition to the intent of this bill. Clearly a woman who went through the trauma of a rape should not have to regularly face the unincarcerated perpetrator during parenting time exchanges or through other interactions. This is viewing the bill through the subjective lens of the victim.

In examining legislation I provide an objective analysis, looking both at support for the bill but also potential hazards or why it should be opposed. In 2013 I further wrote;
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 suggested then that three provisions be added to bill. 1] Require the petitioner to disclosure any other current or past child custody proceedings between her and the accused parent, 2] that petition to terminate cannot be used as an independent action if another custody action is currently pending between the parties, and 3] 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 petitioner must first establish that a rape occurred before the termination of parental rights proceeding may move forward.

The current version of this bill has had a section added which attempts to concisely address these concerns.
Sec. 4. (a) A parent who:
(1) is the victim of an act of rape; and
(2) is at least eighteen (18) years of age at the time the act ofrape occurred;
may not file a petition for termination of the parent-child relationship under this chapter more than one hundred eighty(180) days after the birth of the child.
(b) A parent who:
(1) is the victim of an act of rape; and
(2) is less than eighteen (18) years of age at the time the act of rape occurred;
may not file a petition for termination of the parent-child relationship under this chapter more than two (2) years after becoming eighteen (18) years of age.

Adding this section is a substantial protective step by bringing the termination process in closer proximity to the time of the alleged rape. This would eliminate the rape allegation from being used as a trial strategy in a significant portion of custody battles but it could still affect a great portion of paternity cases. I would still like to see language added that requires a court that currently has jurisdiction over custody of the child to have the case transferred and joined to the existing case.

The progress of this bill will be updated on the posting List of 2016 Indiana Child Custody, Child Support, Domestic Violence, and Child Well-Being bills.

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1 comment:

Rommi said...

It's a bit sketchy that any such charge should be allowed in a civil court without it having been first tried in a criminal case.