BILL NUMBER: S7681
SPONSOR: STAVISKY
 
TITLE OF BILL:
An act to amend the penal law, the domestic relations law and the family
court act, in relation to termination of parental rights in cases of a
child conceived through rape
 
PURPOSE:
To expand the protections afforded to women who conceive a child as a
result of rape.
 
SUMMARY OF LEGISLATION:
SECTION 1. SECTION 130.92 OF THE PENAL LAW IS AMENDED BY ADDING A NEW
SUBDIVISION 4.
THIS TERMINATES THE PARENTAL RIGHTS AND RESPONSIBILITIES OF A PARENT WHO
IS "CONVICTED" OF THE CRIME OF RAPE IN THE FIRST, SECOND, OR THIRD
DEGREE. THIS PROVISION MANDATES THAT THE COURT TERMINATE PARENTAL RIGHTS
IF A CONVICTION OCCURS.
SECTION 2. SUBDIVISION 1 OF SECTION 111-A OF THE DOMESTIC RELATIONS LAW,
AS AMENDED BY CHAPTER 371 OF THE LAWS OF 2013, IS AMENDED. IF, AFTER A
JUDICIAL HEARING, IT IS FOUND BY -CLEAR AND CONVINCING EVIDENCE," THAT A
WOMAN HAS BEEN RAPED IN THE FIRST, SECOND OR THIRD DEGREE, AND A CHILD
WAS CONCEIVED AS RESULT OF THAT RAPE, THE WOMAN DOES NOT HAVE TO NOTIFY
HER ASSAILANT OF HER INTENTION TO GIVE THE CHILD UP FOR ADOPTION.
SECTION 3. PARAGRAPH (B) OF SUBDIVISION 1-C OF SECTION 240 OF THE DOMES-
TIC RELATIONS LAW, AS AMENDED BY CHAPTER 371 OF THE LAWS OF 2013, IS
AMENDED.
THIS INCLUDES THE PROVISION THAT THERE WILL BE A REBUTTABLE PRESUMPTION
THAT IT IS NOT IN THE BEST INTERESTS OF THE CHILD WHETHER BORN IN OR
OUT-OF-WEDLOCK TO BE PLACED IN THE CUSTODY OF OR TO VISIT WITH THE
PERSON WHO HAS BEEN CONVICTED OF RAPE WHICH RESULTED IN THE CONCEPTION
OF THAT CHILD.
SECTION 4. SUBDIVISION 5 OF SECTION 240 OF THE DOMESTIC RELATIONS LAW,
AS ADDED BY SECTION 103 OF CHAPTER 398 OF THE LAWS OF 1997, IS RENUM-
BERED SUBDIVISION 6 AND A NEW SUBDIVISION 7 IS ADDED. NO COURT SHALL
AWARD CUSTODY OR VISITATION RIGHTS TO ANY PARENT WHO HAS BEEN CHARGED
WITH VIOLATING SECTION 130.25 (RAPE IN THE THIRD DEGREE), 130.30 (RAPE
IN THE SECOND DEGREE), OR 130.35 (RAPE IN THE FIRST DEGREE) OF THE PENAL
LAW, UNTIL THE CONCLUSION OF ALL PROCEEDINGS ASSOCIATED WITH SUCH CHARG-
ES. IN ADDITION, NEITHER CUSTODY NOR VISITATION SHALL BE AWARDED TO ANY
PARENT WHO IS CONVICTED OF SUCH CHARGES.
SECTION 5. ARTICLE 6 OF THE FAMILY COURT ACT IS AMENDED ADDING A NEW
PART 6. THIS ESTABLISHES A HEARING PROCESS BY WHICH A VICTIM CAN PROVE
BY "CLEAR AND CONVINCING EVIDENCE" THAT THE RESPONDENT COMMITTED THE
CRIME OF RAPE IN THE FIRST, SECOND, OR THIRD DEGREE AND A CHILD WAS
CONCEIVED AS A RESULT OF SUCH RAPE. AT THE CONCLUSION OF THE HEARING,
THE COURT MAY TERMINATE ALL OF THE PARENTAL RIGHTS AND RESPONSIBILITIES
OF THE RESPONDENT IF IT IS FOUND THAT HE INDEED COMMITTED RAPE AND THE
CHILD WAS CONCEIVED AS A RESULT OF SUCH RAPE.
 
JUSTIFICATION:
New York State, under certain circumstances, gives a rapist who fathered
a child the legal right to custody and/or visitation. It is impossible
to imagine the anguish a victim endures when she is forced to not only
interact with the assailant, but actually share parental responsibil-
ities. Sadly, New York is one of a limited number of states where the
rapist has this right. In March of 2010, Shauna Prewitt, a rape survivor
and law student at Georgetown Law School, published a scholarly article
examining the legal protections afforded women who become mothers as a
result of rape. The article exposed a legal system that permitted the
rapist custody and visitation rights regarding the child born as a
result of rape.
Currently, a total of 33 states have enacted statutes that either termi-
nate parental rights or eliminate the requirement that the father be
notified of an adoption proceeding when a child has been conceived as a
result of rape. This measure uses the concept of "clear and convincing
evidence" as the standard for terminating a rapist's custody claims.
Unfortunately, fewer than 5ks of rape cases are ever brought to trial
and even when they are, many defendants are allowed to plead guilty to a
lesser offense. Therefore, this legislation looks to establish a hearing
process that makes "clear and convincing evidence" sufficient grounds
for the denial of parental or custodial rights.
This legislation would also protect women who choose to put a child
conceived through rape up for adoption. Current New York State Law
requires that unless there is a conviction of rape in the first degree,
a woman must notify the father (rapist) of the decision to put the child
for adoption. This legislation expands the conviction to include rape in
the second and third degree and adds "clear and convincing evidence" at
a hearing to the statute. Accordingly, this proposed legislation seeks
to protect victims of rape and begin their journey toward recovery
should they choose to put the child up for adoption without fearing
retaliation from the perpetrator.
If someone is convicted of rape, they should have no contact with the
child. There have been cases where courts have determined that terminat-
ing parental rights is not in the best interest of the child because the
rapist has established a relationship with the child as a result of the
lengthy interval between arrest and conviction.
To allow a rapist to establish a parental presence in the life of a
child is unacceptable and can be traumatic to both the mother and child.
Perpetrators can also use the interim between arrest and conviction to
intimidate the mother into dropping the charges, often using the custody
of the child as leverage. Therefore, this legislation proposes that no
custody or visitation rights be granted to anyone charged with rape
until the conclusion of the proceedings.
Establishing a process by which a woman can petition the court to
conduct a hearing protects the woman from a long, drawn out legal
proceeding. This hearing process also protects the accused by setting
"clear and convincing evidence" as the standard for denying parental
rights and leaving the decision to the discretion of the court. Lastly,
in 1982, the Supreme Court established, in Santosky v Kramer (455 U.S.
745) that "clear and convincing evidence" does not impede due process in
restricting or terminating parental rights.
 
LEGISLATIVE HISTORY:
2015-2016: A.6997-A/S.3215-A - Referred to Judiciary.
2017-2018: A.4372/S.3515 - Referred to Judiciary.
2019-2020: A.534/S.2948 - Referred to Judiciary.
2021-2022: A.539/S.7648 - Referred to Codes
 
FISCAL IMPLICATIONS:
None to the State.
 
EFFECTIVE DATE:
This act shall take effect immediately.

Statutes affected:
S7681: 130.92 penal law, 111-a domestic relations law, 111-a(1) domestic relations law