Terminating Rapists’ Parental Rights: Why the Delay?

When Gov. Lawrence J. Hogan (R) signed the Rape Survivor Family Protection Act into law Tuesday, it brought to a close a 10-year odyssey for advocates of women who have been sexually assaulted.

The measure gives women who have given birth to a child conceived through rape the opportunity to terminate the parental rights of their attacker, even if the man is not convicted in criminal court. In signing the measure, Hogan called it “long overdue,” adding, “No rapist should be allowed to maintain their rights as a parent, and no victim should ever be forced to interact with their attacker.”

Gathered for the bill-signing were dozens of legislators and advocates who pushed the measure since its initial introduction in 2007, many of whom watched with increasing frustration as the bill died year after year.

Despite the bill’s tortured history, its passage this year was not a surprise. House and Senate leaders signaled early on that the measure would be a priority when they assigned it high-profile numbers — HB 1 in the House and SB 2 in the Senate.

But that begs an obvious question: How did a long-stalled piece of legislation go from being perennial roadkill to a favorite of the speaker of the House and Senate president?

It turns out, according to a dozen lawmakers and advocates interviewed by Maryland Matters, that the seeds of victory were sewn in last year’s defeat.

The “termination of parental rights” bill, as it’s become known, died in 2017 when an all-male conference committee, meeting just off the Senate floor in the closing hours of the session, couldn’t resolve differences between similar — but not identical — House and Senate versions.

Media coverage was unkind.

“Last year was huge,” said Sen. Cheryl C. Kagan (D-Montgomery). “The idea that [an all-male conference committee] would be making decisions for women, on rape, was absurd. And I said as much. Not everybody was delighted with that. But the optics of this, in addition to the substance of it, were pretty far from ideal.”

“A lot of people were embarrassed,” said Del. Kathleen M. Dumais (D-Montgomery), vice chairwoman of the House Judiciary Committee and chief sponsor of the legislation. “And leadership said, ‘Enough is enough.’”

A family law attorney, Dumais said extra momentum came from the #MeToo movement, in which women alleging sexual misconduct in the workplace started speaking publicly in unprecedented numbers beginning last summer.

At the bill signing, House Speaker Michael E. Busch (D-Anne Arundel) praised Dumais for her “tireless efforts. … She has been the champion, very patient [and] persistent. Without her, we would not be here today.” Busch did not mention Del. Joseph F. Vallario (D-Prince George’s), chairman of the Judiciary panel and a target of advocates’ ire.

When one male legislator was asked by a reporter why the termination of parental rights bill kicked around Annapolis for so long, he replied tersely, “Joe Vallario. All day.” The legislator did not wish to be named to avoid offending a key colleague.

A big sticking point with the legislation over the years involved due process concerns, particularly when it comes to terminating the parental rights of a man who has not been criminally convicted of rape. Those concerns were addressed in part by making sure that men accused of assault can’t have their civil testimony used against them in any future criminal proceeding. Another provision ensures that men who can’t afford counsel will be provided one.

“We will have a high burden of ‘clear and convincing evidence,’” said Lisae C. Jordan, executive director of the Maryland Coalition Against Sexual Assault and a longtime advocate for the bill. It’s “the same standard of proof we use in other parental rights cases — so it’s not unusual to prove sexual assault in court without a criminal charge.”

Still, Jordan said, “10 years is an entirely unreasonable amount of time for a bill of this type and this subject matter to have lingered.”

Kagan agreed: “There is no understandable explanation why it would take this long. Luckily the combination of the length of time, the public pressure and embarrassment, and the fact that it’s an election year combined to make sure we got it done it this year.”

Prince George’s County State’s Attorney Angela D. Alsobrooks (D) called it “common sense that a person who rapes a person should lose the right to parent that child.”

“We are moving [but] at a turtle’s pace, at times, toward what is right,” she said.

In a brief interview, Vallario, a criminal defense attorney, didn’t directly address critics’ complaints about the length of time it took to get the bill across the finish line. “We started out this year by looking at the conference committee [near agreement] from last year and we used that as a model,” he said. “Some of the protections were in there and the body felt that they should be adopted.”

Dumais was more candid. “I do agree that it was absurd that it took this long,” she said. “But at the same time, I’ve certainly talked with my chairman a great deal about it. And he had very strong and truly genuine objections. … There’s no question that he helped sort of slow the process down. But, honestly he felt very strongly that this process would be misused.”

The good news, Dumais said, is that “the bill that we passed is a much better bill than the way it was originally introduced.”

Senate President Thomas V. Mike Miller Jr. (D-Calvert) called the measure a “big first step,” but he denounced a compromise provision, passed over the Senate’s objections, relieving men found to have fathered a child through rape the obligation of providing financial support to the mother. “That doesn’t make a whole lot of sense,” he said. “It doesn’t make any sense at all. So we’re going to have to deal with this issue [in the future], to undo some of the wrong that’s in the bill.”

And to those — including, in all likelihood, certain editorial writers — who thought the measure was a no-brainer that should have been passed long ago, Miller said: “It was a very difficult bill. And those who think it wasn’t don’t understand the bill.”

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