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Ethics

How Can We Define Family – Kelly

parent (noun) – a father or a mother
mother (noun – a woman in relation to a child or children to whom she has given birth
father (noun) – a man in relation to his natural child or children
child (noun) – a young human being below the age of full physical development or below the legal age of majority; a son or daughter at any age

This is how the dictionary defines a family.

Never once, in all these definitions, is the well being of the child taken into account.

About 32000 sexual assaults on women which result in pregnancy occur each year in the United States.  In approximately 10000 of these cases, the female victim, the mother, decides to continue the pregnancy and keep the child.  For whatever the reason, these women choose not to abort their babies, and prepare themselves to raise the child of their attacker.

As a brief side note, I would like to point out that every single one of these 32000 annual sexual assaults which result in pregnancy could be, in fact, a legitimate rape.  In spite of what Mr. Todd Akin would have you believe, there is no biological chemical in the female anatomy which prevents pregnancy from instances of rape.  On the contrary, ovulation is heightened with anxiety, anger, and fear, so the probability of pregnancy from a sexual assault is actually greater than that of a consenting and safe sexual encounter.

But this is not a piece on legitimate rape, or any other kind of rape for that matter.  This is a piece on the privileges and obligations of each person and of the state to protect the victims, perpetrators, and consequential beings resulting from rape.  After all, every living being has to follow a code of both legal and moral rights and responsibilities.

At conception, every child, every person in the world, has a biological mother and father.  That fact does not change until the day that person dies.  In a regular, consenting and safe relationship, the mother and the father share legal rights and responsibilities to the child.  If the couple is together, they both live with and provide for the child in the way which best benefits the child and the family as a whole.  If the parents are not in a relationship, family court measures are taken to determine what living situation is in the best interest of the child in question.  Legal rights to custody and visitation are decided, as well as legal responsibilities and obligations such as child support are dictated.  The court ruling determines what will most benefit all the parties involved, with an ultimate and primary focus on the child.

What if the child was conceived during a sexual assault?

What happens if the only reason that the child in question exists is because the child’s biological father raped the child’s biological mother?

What happens to the rights and responsibilities of everyone in question, the mother, father, and the child?

In the United States, paternal rights are constitutional.  It violates the American constitution to prevent a parent from having access to his or her child, unless parental termination has been ruled by a Supreme Court.  In cases of both statutory and forcible rape, the father has both legal paternal rights and responsibilities to the child.  If desired, the father can petition and sue for legal rights to visitation and even custody of a child he produced during a sexual assault.

So the question comes simply down to who’s best interests are in need of protection, and how can that be accomplished.

Wendy Murphy, a Massachusetts attorney, represented a client in a case such as this.  Her client had been raped at the age of 14 and became pregnant from a twenty-year-old male.  Three years later, the mother was attempting to move on with her life, to raise her child as a single mother, and to keep the idea of her child completely independent of her sexual assault.  As the child was reaching her third Birthday, the biological father, and rapist, sought to fulfill his legal paternal rights, which, under American constitution, includes visitation.  The state law allows the father, the criminal rapist, to have rights to the child, completely disregarding the crime he committed against the child’s mother.

So the state of Massachusetts believes that it is in the best interest of the child to be allowed visitation from a rapist?  Or does it simply believe that the rights of the criminal are more valuable than the rights of the victims of the crime?

In another case, Shauna Prewitt was in the process of dealing with pursuing charges of her rape when her rapist attempted to sue her for legal rights to her daughter.  The state of Missouri, Ms. Prewitt’s home state, has very similar rulings to Massachusetts, that fathers have both rights and responsibilities to their children, which are protected by the American constitution.  In this case, paternal rights were very quickly terminated to the offender.  This means that, while he does not have visitation rights, the father is also not obliged to provide financial child support to Ms. Prewitt.

This begs the question: should sexual offenders be obliged to support, but not allow having rights to their children?

The problem with legislature such as the above two examples is that it opens the door for further manipulation of the victim by the assailant.  ‘If you drop requests for child support, I will stop suing for visitation rights.’  ‘If you stop your accusations of rape, I will stop suing for visitation rights.’  In an attempt to protect her child, a mother will go to extraordinary lengths.  How could it possibly be in the best interest of the child to be used as a pawn in victimization by his or her father?

In this sense, Canada gets it right.  Instead of constitutional rights, custody rights are based on the Provincial Tests of the Best Interest of the Child.  This can be petitioned by anyone, be it a godmother or a biological father or a maternal grandmother.  Whoever can prove that they are the guardian that is most beneficial to the development, growth, maturation, and life of the child will be awarded with primary custody.  The test includes history of violence, love and affection, and the type of situation in which this would put the child and the guardian in the future.  This also eliminates the idea of parental termination.  If twenty years down the road the father is a changed and reformed man, or the child later wants to seek knowledge of his or her parent, contact can be made.  Unlike in the United States, Canadian policy sees an immediate plan which can be altered dependent on changes which may occur in the future.

So what does this all ultimately mean?  In short, I think Canada has it figured out better than the United States for the most part in this case.  It is clearly immoral for a rapist to be able to use child support or refraining from suing for custody as a bargaining chip to prevent incrimination.  But that might not always be the case.  It is also immoral to say that any man who has been accused by a pregnant women of rape and subsequent pregnancy to be declared future parental rights.  Both of these situations clearly open up way too much opportunity for abuse of the legal system.

So what do I believe?  I believe that once a child is in existence, he or she should be the ultimate priority.  Whatever the best circumstance for the child’s upbringing should be the one in which he or she lives, whether that is proven to be with the mother, father, grandparents, or anyone else.  I also believe that these decisions should not be permanent.  If a living situation is not working out ideally for the child, something must be changed.  Likewise, if a past assailant becomes a changed man and the child wishes to seek his or her father, this should be a legally available option.

I ultimately believe that the child is most important.  And this brings me back to where I began, defining a family.  Each member of a family is simply defined by who they are related to.  However, family is defined differently.

family (noun) – a group consisting of parents and children living together in a suitable household

Family is a group.  Family involves togetherness.  Family is suitable.

And I ultimately think that, no matter what, this is the situation in which I child should be raised.

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Discussion

4 thoughts on “How Can We Define Family – Kelly

  1. I have to admit, at first I thought you were going to ramble on about abortion issues in terms of rape. But then you didn’t. So bravo.

    I have never even heard of this issue before, but after your post, I feel really really informed. You did an excellent job of outlining what it’s about, who the stakeholders are, etc. And I didn’t just skim over it. It caught my attention! 🙂

    The only question I would ask is this: What if the child is best off with the rapist father (immediately after birth)? What if the mother cannot care for the child, and the father can give both the love and physical care the child needs? Lets say the mother is mentally deficient, as well as poor. Do you give the child away to the father, immediately after birth? Then what about the poor mother? Was she just a tool for the man?

    I obviously have no answers to these questions – they’re just more ideas to consider. What do you think?

    Posted by JonathanToews | December 11, 2012, 5:06 am
    • Thanks for actually reading all 1500 words of this post. I was going to go further into that issue, as well as look at this situation in the instances of female on male rape, but I thought I had covered enough already.

      You asked: what if the child is better off with the rapist father?

      Under the Canadian legal system for these proceedings, the child’s best interest is put first. And that is not limited to the biological parents. I cannot picture a circumstance in which there was not a grandparent or aunt or uncle or close family friend to act as a guardian for the child that could promote a better upbringing than the assailant. I am sure that it is possible, and it must happen, but that becomes a different issue. If it can be proven that there is no better situation for the child then to be with the father, perhaps that would be the best circumstance. However, if he is convicted and incarcerated for sexual assault, maintaining custody would not be very plausible or realistic.

      I would like to think, though, that if a man wanted to have his own child so badly and not involve the women, he would choose to invest in surrogacy or other means, rather than raping a women to impregnate her and steal her child. That does not sound like a sane individual who should be trusted as the best option for the upbringing of a child.

      But those are just my thoughts. I didn’t really answer your questions, I have no answers to those, but that is definitely a legitimate point.

      Posted by kellyannebryant | December 11, 2012, 5:29 am
  2. Kelly! Just like i mentioned to you in class, i really enjoyed this topic you went into, since i haven’t heard much about it previously. I also agree and do believe that the child should always be the number one priority regardless if proven to be with ones mother or father and the decision should never be permanent. Whatever may be the best for the support of the child, and what results to the child best interest should be the ultimate priority.
    I really enjoyed reading your post, and you brought up the issue very well, where i didn’t want to stop reading. Great job outlining the issue overall.

    Posted by yasmeenmezban | December 11, 2012, 10:03 pm
  3. Though you explained the topic very well in class, I still enjoyed reading your post. It makes me feel very thankful to have the Canadian legal system.

    What we did touch on with the mini class discussion, but was not really answered, is the sketchy period when the accused rapist is being tried, but is not actually convicted. As many rapes are, not surprisingly, performed when only the rapist and victim are present, a court hearing would be a difficult process. What legal tools are in place to protect the victim of a legitimate rape and her child when the crime is not yet recognized?

    Posted by Jennifer | January 2, 2013, 4:12 am

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