senate Bill S5001A

Relates to termination of parental rights in cases of a child conceived through rape

download pdf

Sponsor

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
view actions

actions

  • 03 / May / 2013
    • REFERRED TO CHILDREN AND FAMILIES
  • 08 / Jan / 2014
    • REFERRED TO CHILDREN AND FAMILIES
  • 21 / Jan / 2014
    • AMEND AND RECOMMIT TO CHILDREN AND FAMILIES
  • 21 / Jan / 2014
    • PRINT NUMBER 5001A

Summary

Provides a process for the termination of parental rights in cases of a child conceived through rape by clear and convincing evidence.

do you support this bill?

Bill Details

Versions:
S5001
S5001A
Legislative Cycle:
2013-2014
Current Committee:
Senate Children And Families
Law Section:
Domestic Relations Law
Laws Affected:
Amd §§111-a & 240, Dom Rel L; amd §130.92, Pen L; add Art 6 Part 6 §§681 & 682, Fam Ct Act

Sponsor Memo

BILL NUMBER:S5001A

TITLE OF BILL: An act to amend the domestic relations law, the penal
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. Subdivision 1 of section 111-a of
the domestic relations law, as amended by chapter 371 of the laws of
2013, is amended so that 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 2. Section 130.92 of the penal law is amended by adding a new
subdivision 4 that terminates the parental rights and responsibilities
of a parent who is "convicted" of the crime of rape in the first,
second, at third degree. This provision mandates that the court
terminate parental rights if a conviction occurs.

Section 3. Subdivision 5 of section 240 of the domestic relations law,
as added by section 103 of chapter 398 of the laws of 1997, is
renumbered subdivision 6 and a new subdivision 7 is added so that no
court shall award custody or visitation rights to any parent woo has
been charged with violating section 130.25 (rare 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 charges. In addition, neither custody nor
visitation shall be awarded to any parent who is convicted of such
charges.

Section 4. Article 6 of the family court act is amended adding a new
part 6 which 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: In march of 2010, Shauna Prewitt, a rape survivor and
J.D. candidate at Georgetown Law School published a scholarly piece
examining the legal protections afforded to women who mother through
rape. The piece exposed a legal system that affords women few
protections. In fact, most states give a man who has fathered through
rape the same legal rights to custody and visitation as any other
father. It is impossible to imagine the anguish a victim endures when
they are forced to not only interact with their assailant, but
actually share parental responsibilities. Sadly, very few states,
including New York have passed legislation dealing with this very
important issue. When looking at these cases, we must take into
account all the legal processes that are involved with parental
rights.


The requirement of a conviction of rape is a central question when
analyzing this issue. In 2010, sixteen states had statutes that
protect a raped woman who chooses to raise her child. Ten of those
sixteen states required a criminal conviction to begin the process of
terminating or restricting parental rights. This is problematic
because few rapes are even 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
restriction or stripping of parental 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 a decision to put
the child up 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. Therefore, this
proposed legislation seeks to protect victims of rape and begin their
journey to recovery should they choose to put the child up for
adoption without fearing retaliation from the perpetrator.

This legislation also mandates that a court terminate the parental
rights of any parent woo is convicted of rape in the first, second, or
third degree. If someone is convicted of rape, they should have no
contact with the child. There have been cases where courts have
determined that terminating parental rights is not in the best
interest of the child because of the period of time between a
perpetrator's arrest and conviction where they have established a
presence with the child. Therefore, leaving the termination of
parental rights to the discretion of the court following a conviction
is unnecessary and unreliable.

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 intimate 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.

Finally, by establishing a process by which a woman can petition a
court to conduct a hearing for conception by rape, protects a woman
from a drawn cut legal proceeding where variables are out of her
control. This hearing process also protects the accused by setting
"clear and convincing" as the standard for the stripping of parental
rights and leaving the decision to the discretion of the court.

This legislation will continue New York's position as a leader in
women's rights. Current New Yore law does not protect women who
conceive a child through rape. Women who choose to keep a child
conceived through rape should not be forced to relive their rape day
after day by interacting with the rapist. We can and must do better.

LEGISLATIVE T731-STORY: New bill

FISCAL IMPLICATIONS: To be determined


EFFECTIVE DATE: This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5001--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               May 3, 2013
                               ___________

Introduced  by Sen. STAVISKY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Children and  Families  --
  recommitted  to  the  Committee on Children and Families in accordance
  with Senate Rule 6, sec. 8  --  committee  discharged,  bill  amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the domestic relations law, the penal law and the family
  court act, in relation to termination of parental rights in cases of a
  child conceived through rape

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 1 of section 111-a of  the  domestic  relations
law,  as  amended by chapter 371 of the laws of 2013, is amended to read
as follows:
  1. Notwithstanding any inconsistent provisions of this  or  any  other
law, and in addition to the notice requirements of any law pertaining to
persons  other  than those specified in subdivision two of this section,
notice as provided herein shall be given to  the  persons  specified  in
subdivision  two  of  this  section of any adoption proceeding initiated
pursuant to this article or of  any  proceeding  initiated  pursuant  to
section one hundred fifteen-b of this article relating to the revocation
of  an adoption consent, when such proceeding involves a child born out-
of-wedlock provided, however, that such notice shall not be required  to
be  given  to  any  person  who  previously has been given notice of any
proceeding involving the child, pursuant to section three hundred eight-
y-four-c of the social services law, and provided further that notice in
an adoption proceeding, pursuant to this section shall not  be  required
to  be  given  to  any  person who has previously received notice of any
proceeding pursuant to section one hundred fifteen-b of this article. In
addition to such other requirements as may be applicable to the petition
in any proceeding in  which  notice  must  be  given  pursuant  to  this
section, the petition shall set forth the names and last known addresses

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10510-02-4

S. 5001--A                          2

of  all  persons required to be given notice of the proceeding, pursuant
to this section, and there shall be shown by the petition or by  affida-
vit  or  other proof satisfactory to the court that there are no persons
other  than  those set forth in the petition who are entitled to notice.
For the purpose of determining persons entitled to  notice  of  adoption
proceedings  initiated  pursuant  to  this article, persons specified in
subdivision two of this section shall not include  any  person  who  has
been  convicted  of one or more of the following sexual offenses in this
state or convicted of one  or  more  offenses  in  another  jurisdiction
which,  if  committed in this state, would constitute one or more of the
following offenses, WHERE IT IS ESTABLISHED AFTER A  HEARING,  BY  CLEAR
AND  CONVINCING EVIDENCE, THAT SUCH PERSON COMMITTED ANY SUCH OFFENSE OR
when the child who is the subject of the proceeding was conceived  as  a
result:  (A)  rape  in first [or], second OR THIRD degree; (B) course of
sexual conduct against a child in the first degree; (C) predatory sexual
assault; or (D) predatory sexual assault against a child.
  S 2. Section 130.92 of the penal law is amended by adding a new subdi-
vision 4 to read as follows:
  4. THE PARENTAL RIGHTS AND RESPONSIBILITIES WITH RESPECT TO A CHILD OF
A PARENT CONVICTED OF THE CRIME OF RAPE IN THE FIRST DEGREE  AS  DEFINED
IN  SECTION 130.35 OF THIS ARTICLE, RAPE IN THE SECOND DEGREE AS DEFINED
IN SECTION 130.30 OF THIS ARTICLE,  OR  RAPE  IN  THE  THIRD  DEGREE  AS
DEFINED  IN  SECTION  130.25  OF  THIS  ARTICLE,  THAT  RESULTED  IN THE
CONCEPTION OF SUCH CHILD SHALL BE TERMINATED IN ACCORDANCE WITH  ARTICLE
SIX OF THE FAMILY COURT ACT.
  S  3.  Subdivision  5 of section 240 of the domestic relations law, as
added by section 103 of chapter 398 of the laws of 1997,  is  renumbered
subdivision 6 and a new subdivision 7 is added to read as follows:
  7.  NOTWITHSTANDING ANY OTHER PROVISION OF ANY LAW TO THE CONTRARY, NO
COURT SHALL AWARD CUSTODY TO A PARENT WHO HAS BEEN CHARGED WITH  VIOLAT-
ING  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,
WHERE  THE  CHILD  THAT  SUCH  PARENT SEEKS CUSTODY OR VISITATION OF WAS
CONCEIVED AS A  RESULT  OF  SUCH  RAPE,  UNTIL  THE  CONCLUSION  OF  ALL
PROCEEDINGS ASSOCIATED WITH SUCH CHARGES. NEITHER CUSTODY NOR VISITATION
SHALL BE AWARDED TO A PARENT WHO HAS BEEN CONVICTED OF 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.
  S 4. Article 6 of the family court act is amended by adding a new part
6 to read as follows:

                                 PART 6
     TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION BY
                                  RAPE
SECTION 681. TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION
               BY RAPE.
        682. HEARING.
  S 681. TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION  BY
RAPE.  1. A PROCEEDING FOR TERMINATION OF PARENTAL RIGHTS ON THE GROUNDS
OF A FINDING OF CONCEPTION BY RAPE IS ORIGINATED BY A PETITION  ALLEGING
THAT  THE  RESPONDENT COMMITTED THE CRIME OF RAPE IN THE FIRST DEGREE AS
DEFINED IN SECTION 130.35, RAPE IN  THE  SECOND  DEGREE  AS  DEFINED  IN
SECTION 130.30, OR RAPE IN THE THIRD DEGREE AS DEFINED IN SECTION 130.25
OF  THE  PENAL LAW, AND THAT THE CHILD WAS CONCEIVED AS A RESULT OF SUCH
RAPE. EXCEPT AS OTHERWISE PROVIDED IN THIS PART, THE PROVISIONS OF  PART
ONE OF THIS ARTICLE SHALL APPLY TO ALL PROCEEDINGS.

S. 5001--A                          3

  2.  AT THE CONCLUSION OF THE HEARING UNDER SECTION SIX HUNDRED EIGHTY-
TWO OF THIS PART THE COURT MAY TERMINATE ALL OF THE PARENTAL RIGHTS  AND
RESPONSIBILITIES  OF  THE RESPONDENT IF THE RESPONDENT IS FOUND BY CLEAR
AND CONVINCING EVIDENCE TO HAVE COMMITTED RAPE IN THE  FIRST  DEGREE  AS
DEFINED  IN  SECTION  130.35,  RAPE  IN  THE SECOND DEGREE AS DEFINED IN
SECTION 130.30 OR RAPE IN THE THIRD DEGREE AS DEFINED IN SECTION  130.25
OF  THE  PENAL LAW, AND THE CHILD WAS CONCEIVED AS A RESULT OF SUCH ACT.
AN ORDER OF DISPOSITION SHALL BE MADE, PURSUANT TO THIS SECTION,  SOLELY
ON  THE  BASIS OF THE BEST INTERESTS OF THE CHILD, AND THERE SHALL BE NO
PRESUMPTION THAT SUCH INTERESTS  WILL  BE  PROMOTED  BY  ANY  PARTICULAR
DISPOSITION.
  S  682.  HEARING.  THE  COURT  SHALL HOLD A HEARING UNDER THIS PART TO
DETERMINE WHETHER THE ALLEGATIONS IN THE PETITION  THAT  THE  RESPONDENT
COMMITTED RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.35, RAPE IN
THE  SECOND  DEGREE  AS  DEFINED  IN SECTION 130.30 OR RAPE IN THE THIRD
DEGREE AS DEFINED IN SECTION 130.25 OF THE PENAL LAW, AND THAT THE CHILD
WAS CONCEIVED AS A RESULT  OF  SUCH  ACT  ARE  SUPPORTED  BY  CLEAR  AND
CONVINCING  PROOF. ONLY COMPETENT, MATERIAL AND RELEVANT EVIDENCE MAY BE
ADMITTED IN A HEARING PURSUANT TO THIS  SECTION.  A  CONVICTION  OF  THE
RESPONDENT  ON  THE  CHARGES ALLEGED SHALL NOT BE REQUIRED FOR A FINDING
UNDER THIS SECTION.
  S 5. This act shall take effect immediately.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.