Massachusetts family law lawyer Jason V. Owens reviews a 2014 Massachusetts law that provides convicted rapists with the right to seek visitation in Probate and Family Courts.
On Twitter, a story went viral this weekend alleging that in 2014, former Massachusetts governor Deval Patrick signed a law granting convicted rapists parental rights in Massachusetts. According to the story, rapists are guaranteed the right to seek visitation with a child born of rape in Massachusetts. Is this true? Yes, in many ways it is true, although this probably was not the intent of legislators who enacted the law, which was part of a broader domestic violence bill. The story arises out of several recent blogs and articles authored by Massachusetts victim’s rights attorney Wendy Murphy, who has written provocatively about the law:
The Massachusetts Legislature amended a domestic violence law to grant parental rights to convicted rapists who impregnate their victims. The unprecedented bill was passed two years ago and got no media attention either before or after Gov. Deval Patrick signed it into law in August 2014.
Think about that.
Lawmakers in this state – without informing their constituents – voted for a law that for the first time in Massachusetts history turned convicted “impregnation rapists” into “Daddies.”
Murphy goes on to characterize the law as follows:
Under the new law, family courts are mandated to conduct “best interests” hearings, which means victims must submit to protracted, government-ordered unwanted legal proceedings with their attackers. And if the judge orders visitation, the victim can be ordered to co-parent with her attacker for up to 18 years. Imbuing convicted sex offenders with such “rights” allows them not only to control the lives of their victims, but also to impose substantial burdens on victims who will have to hire lawyers to protect themselves and their children, and spend time appearing in court over and over again to indulge and respond to the demands of their attackers.
Murphy, who does not cite the specific law in her article(s), appears to be referring to Bill S.2334, “An Act relative to domestic violence“, which was signed into law by Governor Patrick on August 8, 2014. The provision Murphy appears to be targeting is Section 19, which provides:
No court shall make an order providing visitation rights to a parent who was convicted of rape … and is seeking to obtain visitation with the child who was conceived during the commission of that rape, unless the judge determines that such child is of suitable age to signify the child’s assent and the child assents to such order and that assent is in the best interest of the child; provided, however, that a court may make an order providing visitation rights to a parent convicted of rape …, if (i) visitation is in the best interest of the child and (ii) either the other parent of the child conceived during the commission of that rape has reached the age of 18 and said parent consents to such visitation or the judge makes an independent determination that visitation is in the best interest of the child.
Murphy reads the law as “guaranteeing the rights” of convicted rapists where it provides rapists a clear procedure for seeking visitation – instead of simply barring visitation between children and convicted rapists as a matter of law. Murphy is largely correct here, in terms of the victim’s perspective. Even if the law does not favor visitation for rapists, it appears to provide convicted rapists with a clear procedure for seeking visitation, which a Probate Court judge will be forced to follow, including a trial. The process imposed by the law is likely to be very traumatic for rape victims, even if the ultimate outcome is a denial of the rapist’s request for visitation.
All that said, Murphy seems to stretch the intent behind the law a bit far when she says the law “grant[s] parental rights to convicted rapists who impregnate their victims”. This implies that legislators intended to draft a law giving convicted rapists visitation rights. However, the text of Section 19 suggests the opposite, where it provides: “No court shall make an order providing visitation rights to a parent who was convicted of rape …” – i.e. Section 19 provides a strong presumption against granting visitation rights to rapists. However, by carving out an exception for rapists who can prove a child is old enough to consent (or if visitation is in the child’s best interests), the law creates an opportunity for rapists to abuse the overburdened Probate and Family Courts to attack their victims. The rapist probably won’t be granted visitation after trial, but he can drag the victim to court – for years on end, at a cost of tens of thousands of dollars – to force the issue. (There appears to be no mechanism for a Probate and Family Court judge to dismiss a rapist’s claim at an early stage of the case, where Massachusetts Rule of Domestic Procedure 56 prohibits the use of summary judgment in cases affecting the custody of children.)
It is doubtful that the legislature intended to create a tool for convicted rapists to harass their victims, however, most of Murphy’s commentary is spot-on in terms of the practical reality for victims under the law. The procedural vehicle created by Section 19 is almost certain to be abused by convicted rapists looking for retribution against their accusers. The law will force victims to re-live the rape, while never letting the mother forget that her child was the product of a horrible crime. (Indeed, the law will probably force children to undergo interviews and evaluations about the truly awful subject of their conception, where a determination of the child’s ability to consent practically requires the appointment of a Guardian ad Litem.)
Given that Massachusetts already has the highest rate of child victims of neglect and abuse in the nation, coupled with the dismal treatment of child sex abuse victims in Massachusetts Probate and Family Courts, Murphy’s concerns with Section 19 are well founded. Massachusetts women who are targeted by rapists under Section 19 are unlikely to receive assistance from the Commonwealth or its citizens, where the apathy towards victims of abuse seems to know no bounds.
About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.