The Unique Hell Of Fighting Your Rapist For Custody

Modified from Flickr / Patrick Nielsen Hayden
There is a clear need for legislation to protect victims and children so they are not tied to their assailants for 18 years.

When Wendi Lubin thought of her upcoming custody battle, it made her dry heave. It wasn’t just the fear of having her child taken away, it was the fact she’d see her rapist attempt to fight for custody — and relive the trauma all over again.

The 25-year-old Floridian’s case certainly isn’t unique — at present, there are seven U.S. states where women can legally be forced to share custody with their rapist. As there is no legislation stopping rapists from pursuing custody or visitation rights, this legal loophole means that rapists are legally allowed to claim partial or full custody in states such as Mississippi, Alabama, New Mexico, and Wyoming.

According to statistics from the Department of Justice, the number of children conceived from rape each year in the U.S. might range from 7,750–12,500, but the statistics may well be understated. Given this reality, there is a clear need for legislation to protect victims and children so they are not tied to their assailants for 18 years.

But this year saw even further erosion in women’s rights—Arkansas passed a law allowing rapists to sue victims desiring an abortion. This February, Maryland Governor Larry Hogan signed a bill that would allow rape victims to terminate the parental rights of their assailants — but the decision followed a fierce battle to reject such a law.

Comparatively, it is a far bleaker picture compared to 2015 when President Obama signed the Rape Survivor Child Custody Act. Although it did not ban rapists outright from having parental rights, the act incentivized states to pass laws to seek court-ordered terminations of the parental rights of rapists.

Lubin’s custody battle began in 2012 after attempts to convict her rapist, and, later, to get him to pay child support; he was never convicted and the case was dismissed in September 2016. She recalls being devastated when, in retaliation, he filed for partial custody of her daughter and later, full custody. Although the courts granted Lubin full custody, this victory was short-lived, as he currently has visitation rights.

“In any civilized society, it should be unacceptable for a rapist to have paternal rights when there is clear and convincing evidence that a rape was committed,” she said.

It’s not hard to see why there is so much rage and frustration surrounding this issue. As maddening as this situation is, without a rape conviction, it is even harder for victims to cut ties with their assailants. And each U.S. state varies—California, for instance, requires a conviction whereas Kansas will only allow the termination of parental rights of a rapist if the child is given up for adoption.

Yet as many of the women I spoke with can attest, it is rare for charges to be brought for rape in such circumstances. Most criminal cases, including sexual assault, are resolved with plea bargains to a lesser offense—if charges are even brought at all.

According to RAINN, out of every 1,000 rapes, 994 perpetrators will walk free — only 11 cases get referred to prosecutors, seven cases lead to a conviction, and only six rapists are incarcerated. Moreover, perpetrators of sexual violence are less likely to go to jail or prison than those who’ve committed robberies or assault and battery crimes.

Given that a rape conviction is required for the termination of parental rights, for women who choose to keep their baby, there’s the risk of being tied to their rapist for 18 years.

And the need for a criminal conviction is disproportionately applied to rape victims — comparatively, a criminal conviction is not required to terminate parental rights in cases of child abuse, neglect, or habitual parental drug use.

Lubin finds the legal loophole most difficult to contend with:

“My daughter has spent zero time with him, but at any time in her life, he can claim to seek a relationship and time with her. He is within his rights to fully communicate with me under the guise of co-parenting and visitation.
I do not have the luxury of cutting contact with my rapist due to his parental rights by the very state of Florida. What the legal system has done has ruined my integrity, ruined my dignity, ruined my personhood rights.”

She is adamant, however, that it is not custody he actually seeks, but power and control. While this may seem shocking, it is unsurprising that rapists use the threat of parental rights to continue to torment their victims. She says regular contact from her assailant when negotiating possible visitation leaves her with a “deep terror and sadness.”

“When I spend hours negotiating child custody with him, I feel chained. I can scrub the disgust off my body but it becomes a different type of personal hell to repeatedly face your rapist. This is torture in the most sinister form.”

Given that women such as Lubin have to contend with the trauma of seeing their assailant, it’s not surprising that many people question why victims would choose to give birth to their rapist’s baby, considering it could be a daily reminder of the assault. But for the women I spoke to, abortion or adoption simply wasn’t something that crossed their minds.

Although many of these women were unaware that they would face their assailant on a regular basis, all are adamant that abortion or adoption wasn’t an option, even with the power of hindsight. For Analyn Megison, it was her religious convictions that led her to keep her child.

“My decision to keep my child was based on belief through my personal relationship with God. Many of a more conservative religious view did not respect my choice to have my child and raise her as a single parent. Adoption or abortion was all they thought could be done in the case of a child conceived via rape. But I chose to love and raise my child.”

Refuting the notion that she loves her child “less” because of how she was conceived, Lubin says she is often asked how she feels about her daughter. “I never associated the rape with my daughter, and I’ve never loved my child any less because of her biological father. Raising my daughter has been completely worth it.”

Lubin does explain that her decision was met with cynicism from others and says facing stigma is an ongoing battle, as many question whether she’d faced a “legitimate rape.”

“Choosing to love and raise a child in these circumstances can be met with suspicions and distrust,” she says.

Megison later worked to change Florida’s laws and in 2013, successfully ensured that rape survivors retain full custody of their children. The Rape Survivor Child Custody Act was sponsored by Florida Congresswoman Debbie Wasserman Schultz and passed nationally to terminate the parental rights of rapists with clear and convincing evidence.

Even so, state law variations mean that for others, the reality can be far bleaker. In some cases, victims can be forced to co-parent with their attacker.

Given that a rape conviction is required for the termination of parental rights, for women who choose to keep their baby, there’s the risk of being tied to their rapist for 18 years.

This is an all-too-real reality for 19-year-old Noemi. The teenager is currently fighting to terminate the parental rights of her assailant in her native Nebraska. Although a restraining order against her assailant was in place, he showed up when her daughter was five months old. She recalls the fear and panic over his motivations of wanting to spend time with the child.

Although parental rights vary state by state, in Nebraska, a rape conviction is needed to terminate them. This meant Noemi’s assailant would have had his parental rights terminated if he’d been convicted of sexual assault in the first degree (categorized as sexual penetration without the victim’s consent). However, as he was convicted of third degree assault (categorized as the offender causing serious personal injury to victim), he was able to share custody and parenting decisions.

Visits with his daughter started out supervised, at a half hour every other Saturday. The emotional toll Noemi faced, however, increased when the visits became unsupervised. She is devastated by the lack of protection U.S. law offers her: “It feels hopeless right now. Like there isn’t a way out of the situation.”

Although Lubin and Megison were raped by strangers, many rapists take the form of family members. For K.C. Banning* from Tennessee, she ended up fighting for custody for her children with her own husband. She says that as they were married by the eyes of the law, everything that took place between them was considered consensual by law despite being “tied up, often handcuffed and raped multiple times daily.”

She recalls the financial headache of the custody battle: “One of the hardest things about fighting for custody is paying a lawyer. I lived as a sex slave for 20 years — he stole every penny I earned. I had no real job history or money. How could I get a lawyer? That’s why I lost.”

As the custody fight raged for a year, Banning says seeing him in court felt like relieving the trauma again and again:

“It felt like I was being raped—again— like he had power, a piece of control over me still and that should never have happened. The custody fight took a huge toll — I lost a job, was unable to qualify for benefits, he refused to pay child support. He was granted full custody for a while but eventually, I got them back one at a time as he got tired of them.”

She is adamant that the system is stacked against the woman: “No matter what she does and when she does it, she is not to be believed. I have PTSD and I have to be treated for it. Certain smells and sounds will put my body on high alert.”

Banning has since written about her experiences.

For many of the women I spoke to, post-traumatic stress disorder is an enduring battle. For Lubin, her PTSD has further repercussions concerning her faith in the law:

“Today if I were to be ever attacked, robbed, mugged would I even bother to contact law enforcement? Would this make me feel freer to know I could dial 9–1–1 in the event of my life being in danger? Probably not.”

Even so, despite the ongoing trauma, Lubin is adamant in her efforts to keep fighting.

“The law has left me alone to fend for myself and deal with this situation one-on-one. My goal, whatever direction this may go, is for my daughter to grow as a strong woman. I want her to know she is powerful and loved — no matter who her father, is and no matter what her mother went through.”

Editor’s note: This piece has been updated to reference a recently signed bill in Maryland.

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