It’s been a spectacularly awful week in rape. And that’s not just because of a gang rape of a photojournalist in India. No, it’s also been a really shockingly bad week for American judges dealing with child rape victims, including a Massachusetts woman who has sued to avoid a judicially mandated relationship with her rapist for the next 16 years, and a Montana judge who sent a teacher to jail for only 30 days for the statutory rape of a student who later killed herself.
It is a time-honored legal cliché that hard cases make bad law. That’s a simple way of saying that when courts get bogged down in all the subtleties and complexities of ambiguous human behavior, the legal result isn’t always satisfying. Ariel Levy’s recent exploration of the Steubenville rape case—with its booze-and-football-fueled victimizers and Internet vigilantes—is a pretty good example of all the shades of gray that play out when teen sex crimes are litigated in the courts. But this hasn’t been a bad week in date rape, or in acquaintance rape, or in “he said, she said” rape claims. It’s just been a bad week in rape. In violent, abuse-of-power, unambiguous rape. And what that suggests about where we are heading in the law of sexual assault is worrisome, to say the least.
The first story comes from Massachusetts, where a plaintiff known only as H.T. has sued the commonwealth in federal court for forcing her into a long-term relationship with her rapist. In 2009 H.T. became pregnant as the result of a rape that occurred when she was 14—in middle school. Her rapist, Jamie Melendez, was 20. Melendez pleaded guilty to the rape in 2011 and was sentenced to 16 years of probation. But the conditions of his probation also included an order that he “initiate proceedings in family court and comply with that court's orders until the child reaches adulthood.” In short, according to the new complaint filed by H.T., the man who raped her was ordered to “initiate proceedings in family court, declare paternity as to the child born of his crime (paternity had already been determined in the criminal case, via DNA testing), and comply with the family court's orders throughout the probationary period.”
This forced relationship between the victim and her assailant was judicially mandated despite the fact that the “plaintiff and her mother were adamantly opposed to participation in family court proceedings and repeatedly expressed this sentiment to state officials."
In 2011 the court ordered Melendez to pay $110 per week in child support. Never having seen the child, he sought visitation and then allegedly offered to withdraw his request for visitation in exchange for not having to pay child support. H.T. asked the criminal court judge to order Melendez to pay criminal restitution instead of child support, keeping herself and her child out of his life, but the judge refused. The Supreme Judicial Court for Massachusetts found that she lacked standing to challenge the sentencing judge’s order. So H.T. filed suit arguing that she wants nothing to do with the child’s father, and that she “be liberated from a state court order that not only imposes unlawfully on her liberty for 16 years, but also obligates her with the unwanted and inappropriate responsibility for ensuring Melendez's compliance with the conditions of his probation."
Massachusetts is one of 31 states in which rapists are allowed to sue for child custody and visitation. Thirty-one. Last summer, after Rep. Todd Akin’s absurd claims about “legitimate rape,” Shauna Prewitt shared her harrowing story of becoming pregnant after a rape, then dealing with her rapist’s efforts to gain custody of their daughter. In a law review article published in the Georgetown Law Journal in 2010, Prewitt argued for legislation that would protect the estimated 30 percent of women who opt to keep pregnancies that result from rape, noting that in most states, “a man who fathers through rape has the same custody and visitation privileges to that child as does any other father of a child.” As a consequence, a mother will usually bargain away her legal rights in the interest of creating a distance between herself and her attacker. In a legal moment at which we are talking about amending statutory language to say “forcible rape,” it’s worth wondering how it is even possible that we live in a country in which most states privilege the rapist’s right to access his child over the mother’s right to be left alone.