“If a parent has been convicted of rape in the first degree … sodomy in the first degree … or incest … the juvenile court shall make a finding that the parent is unable to properly care for a child and to discharge his or her responsibilities to and for a child, and shall terminate the parental rights of the parent.”
By CAROLINE BECK and MARY SELL, Alabama Daily News
MONTGOMERY, Ala. – A new law will sever all parental rights for those convicted of rape or incest to any children they have, not just babies born from their crimes or children they victimized.
It’s a significant change for a state that doesn’t currently have a specific law prohibiting rapists from seeking parental access to children conceived during an assault.
The new statute is part of Jessi’s Law. As originally written, the bill would have kept rapists from their victims and children conceived during a rape. It was amended in the legislative process this past spring to apply to any child of the convicted.
“It may overstep what the original intent of the amendment was, but I’m not sure it goes too far,” said Sen. Larry Stutts, R-Tuscumbia. He’s on the Senate Judiciary Committee that debated the bill. “A convicted rapist can lose parental rights. Period.”
Gov. Kay Ivey signed the law in June and it goes into effect Sept. 1.
“The governor is supportive of protecting Alabama’s children, and this law is a step in that direction,” Ivey spokeswoman Gina Maiola said.
Committee Chairman Sen. Cam Ward, R-Alabaster, said at the time of its passage, he and at least some others didn’t catch the scope of the amended bill.
“It’s pretty broad,” he said last week. “It may need to be revisited.”
Ward said the new law could lead to situations where previous convictions are years later used to terminate someone’s rights to a child.
According to the National Conference of State Legislatures, 30 states allow for the termination of parental rights of perpetrators of sexual assault who conceive a child as a result.
Twenty state allow for some form of restriction on the parental rights of perpetrators of sexual assault.
Alabama lawmakers said that while there hasn’t been a specific law on the books, judges have always had the discretion to terminate the rights of abusive and unfit parents.
“What this does is actually mandates it, so if there is a conviction of rape or incest then those parental rights are terminated, regardless of whether there is a child conceived,” bill sponsor Rep. Will Dismukes, R-Prattville, said.
“I think we took a step in the right direction,” Dismukes said. “I think there are some more things we need to look at, but overall I’m happy with it. I think we took a huge step in ensuring the safety of our children.”
Stutts said debate about the bill dovetailed with debate on the state’s new abortion near-total ban, which does not have exemptions for rape or incest.
“The intent was that if a pregnancy resulted from a rape, the rapists would not have any parental rights,” Stutts said. “So the victim would not have to face her rapists every every other weekend for child custody.”
Some lawmakers are already looking to more changes in the 2020 legislative session.
“We are working on the bill now,” Sen. Vivian Figures, D-Mobile, said. “There were some glitches in that bill, and I’m working with Sen. Clyde Chambliss and legislative reference services to rectify it, and we’ll be back with something in the next session.”
She did not specify what changes she would like to make or what the new legislation would entail.
Chambliss, R-Prattville, said the legislation he wants to work on for next year involves allowing a judge to intervene when there is clear and convincing evidence that a child is being abused prior to a conviction.
”When you’re dealing with terminating parental rights, that can take two to three years sometimes, and kids should not be in harm’s way during that time,” Chambliss said. “If there is clear and convincing evidence, and of course a judge would be the one to make that decision.”
Dismukes said that he was happy with how the bill turned out in the end, but also thinks there is ground to be made in protecting children from abusive parents.
In the House, a pre-filed bill by Rep. Juandalynn Givan, D-Birmingham, would take away the conviction requirement and allow a court to find from “clear and convincing evidence” that a person committed a rape that resulted in a child and terminate the parental rights to that child.
Givan did not respond to requests for comment.
But both Dismukes and Ward said they were hesitant to support a bill that doesn’t have a conviction stipulation because of fear that it would be used to falsely accuse someone.
“I think the one part about the conviction part is that it takes away any of the he said, she said, type of situation,” Dismukes said. “If there is a conviction then this law will go into effect.”
Ward is also worried about false accusations and thinks there needs to be a clear standard for deciding parental termination based on rape or sexual abuse accusations.
“We are definitely not done with this debate, and I think it’s a good debate,” Ward said. “We are going in the right direction as far as protecting victims, but you’ve also got to be careful because while people are going through a messy divorce, things can happen and false accusations can arise. You want to make sure in a situation like that because if there is reasonable evidence then how do you determine what is reasonable. You’ve got to pin that down somehow.”
Chris Newlin, executive director of the National Children’s Advocacy Center in Huntsville, said rape and incest committed against children is a “line in the sand issue.”
“If you rape a child and impregnate them, you have clearly and unequivocally committed a heinous crime and should not have access to them,” he told Alabama Daily News.
Newlin said he’s testified in numerous cases where the defendant simply being the courtroom is troubling for the victim.
“If your children were victims, then there is no way you should be able to have access to them, to me. You’ve given up that right.”