In Maryland, a man who fathers a child through rape maintains parental rights, such as the right to appeal for visitation or custody of his offspring.
Those rights are the subject of sharp debate in the General Assembly this session, with lawmakers struggling to balance the welfare of rape victims with the rights of accused sexual offenders to due process and fair hearings.
Advocates say cases in which the issue comes up are rare but not unheard of. They cited a recent instance in which a court sought a suspected rapist's opinion about what to do with his daughter when the traumatized mother -- his alleged victim and former stepdaughter -- became unable to care for her.
Senate lawmakers considered legislation yesterday that would allow a judge to waive an alleged rapist's parental rights, even if he has been acquitted of the charge in criminal court.
"Rapists should not have paternity rights in their victims' offspring," said state Sen. Jamie Raskin, a constitutional law professor at American University and a sponsor of the bill.
A similar bill was approved by the state Senate last year but died in a House of Delegates committee. The proposal still faces opposition in the House Judiciary Committee, where members say they are reluctant to rescind the parental rights of men who have not been convicted of a crime.
"I think that at present, a majority of the members of the committee have profound, and I think well-founded, concerns about the actual content of the bill," said Del. Luiz R.S. Simmons, a Montgomery County Democrat and Judiciary Committee member. "You can be accused of rape, you can be indicted for rape, you can be acquitted by a unanimous jury, and yet you can still lose your child under this bill."
Under the measure, a judge could exclude a man as the legal father of a child if the court believed that there was "clear and convincing evidence" that a rape had occurred. That is a lesser burden of proof than the "beyond a reasonable doubt" standard applied in criminal cases.
Raskin and House of Delegates sponsor Del. Kathleen M. Dumais, both Montgomery County Democrats, said they are not willing to amend the legislation to apply only to convicted rapists, arguing that doing so would render the bill meaningless.
"Only 39 percent of rapes are reported, and only about 16 percent of those result in a conviction," Dumais said.
