A newly passed Illinois law provides an example of how feminist advocacy based on predatory exploitation of female victim status and emphasis of male perpetration leads to law and policy which discriminates against men and creates an oppressive legal environment.
At first glance, the law seems intended to protect rape victims from further victimization. Most people are shocked to learn that convicted rapists can sue for visitation with children conceived during the crime. The idea calls up images of violent offenders forcing their recovering victims to face them a second time in family court, and maybe even over and over again in a more personal setting if visitation is awarded. Feminists have been campaigning for years for politicians to address this issue, but only for the protection of female victims.
Sympathy for victims naturally elicits outrage at such an idea if one thinks about it through the narrow filter of feminist theory. Feminist theory treats rape as a male against female act, one which is never about sex, but always about domination; displaying power and imposing control. Feminist theory treats fathers’ interest in involvement with their children as a weapon used against the mother. Ignoring the father-child relationship, feminist groups discuss paternal concern and interest as fathers’ attempts to impose their will on mothers. Through this filter, any effort a father convicted of rape might make at securing any parental rights would be seen as an abuse. Most people will read about this law, see it through that narrow filter, and consider it a positive measure taken to protect rape victims from further imposition by their attackers.
Let’s broaden the view a bit.
The most obvious problem with the law is in its gender-specificity.
It looks like the text of the original bill was specifically re-worded to change it from the overly broad but gender-neutral use of “sex offender” to “men who father through sexual assault or sexual abuse.” An entire paragraph is dedicated to listing the various types of sex offenses which would make a father subject to this law. While using the general term “sex offender” is problematic in that it wouldn’t have limited the law’s application to only those whose children were conceived during a rape, the use of gendered terms is discriminatory, limiting the application to only those rapists who are men, and the law’s protection to only female victims.
Rape isn’t a gendered crime. The CDC’s National Intimate Partner and Sexual Violence survey found that male victims of female rapists are not uncommon. That makes the issue of conception-by-rape as much a potential issue for male victims as female victims.
One major difference between male victims and female victims in the circumstance addressed by the law is where custody begins. It’s the woman who gives birth, and after birth the default custody, if uncontested, remains with her. In the case of female victims of male rapists, the woman at least has choices. She doesn’t have to settle for the circumstance she’s in. What does it mean when the rapist is a woman, and the victim is male?
Being female, the rapist still has a plethora of options aside from custodial parenthood. She can terminate or carry to term and give birth. She can relinquish custody to the victim – the baby’s father. Barring that, she can relinquish custody to family, either the victim’s, or her own. She can allow the baby to be placed in foster care, or put up for adoption. She can leave the baby with a safe-haven abandonment center. At no point, and under no logic, can the rapist who becomes pregnant in any way be reasonably considered a victim. Parenthood is not inflicted on her. It is her privilege, and her choice.
Being male, the victim has zero options. Given that he is a rape victim, he was not even given the chance to refuse sexual intercourse. He cannot abort. He must fight in court if he wants custody, and he has to prove the mother an unfit parent to obtain that. If he is too young to raise a baby, he won’t be given that opportunity. If he did not want to become a father, he has no option to sever his parental responsibilities along with his rights, as the mother can do with hers. Under current law, if a male rape victim fathers a child during the act, he is out of luck, and on the hook.
The victim can be ordered to pay support to his rapist, even if he’s underage, and even if he’s so far underage that he cannot legally hold a job.
This law should be gender neutral. If our society is going to provide a protection for rape victims, that protection must be provided for victims of both sexes. If perpetrators of rape are going to be barred from having custody of children conceived by their criminal actions, that stipulation should apply to perpetrators of both sexes, not just men.
Another issue with the law is how it will be affected by the Illinois age of consent law.
This means that boy who has passed his 17th birthday can be convicted of statutory rape for having sex with a girl who hasn’t passed hers, even if their ages are only a few months or even just days apart. If conception were to occur in such a case, the father shouldn’t be considered a predator. He hasn’t victimized anyone. His actions are illegal due to the passing of a date akin to a deadline. The difference between himself and his female partner in age and maturity would not be any greater a day after his birthday than a week or a month before it – and his actions are no more malicious or careless than his partner’s actions are… yet he would be subject to the Termination of Parental Rights of Perpetrators of Sexual Assault Act. Even if the law’s gender specificity were to be remedied, the potential effect on teen parents would not be. Instead, it would simply go both ways. A girl who became pregnant following her 17th birthday could see her parental rights severed if her partner had not yet passed his.
To avoid victimizing teen parents this way, the law should be tempered with a Romeo and Juliet clause stipulating that an of-age teen is not guilty of statutory rape when the younger partner is within two years of the older partner’s age.
The law leaves the determination of whether a convicted rapist’s parental rights should be revoked up to the the other parent, or the child’s legal guardian. No exception is offered for this stipulation, and no means of contesting the decision is included. Instead of the court making the determination based on the best interests of the child, this stipulation caters to the victim’s feelings. Either association with a criminally convicted rapist is or is not in the child’s best interest. Allowing the victim’s feelings to override the best interests of the child is ridiculous. It also creates an incentive for vindictive parents to use false accusation as a weapon in custody battles.
There is nothing within the act to prevent that.
It provides for the termination of parental rights. It doesn’t provide for them to be reinstated upon learning that the accusation was a lie, and the conviction was a mistake. Even if the liar is found out, and the conviction overturned, that won’t reverse the termination of the wrongfully convicted parent’s custody rights. There should be a clause within the law which stipulates that overturning a conviction also overturns that termination.
Considering the potential consequences of rape conviction, and the legal environment surrounding rape, leveling a provably false accusation should carry equally serious consequences. An accuser found to have lied in an attempt to abuse this law to wrongfully sever a parent’s relationship with his or her child should be considered guilty of emotional abuse, both of the child and the parent. In circumstances of not just unprovable but demonstrably false accusations, prosecution of the accuser should be mandatory.
The same standard of proof that is used in criminal court should apply to the determination of whether the accuser is guilty of making a false accusation. Maintaining that standard of evidence would prevent legitimate accusers from fearing legal reprisal, but would provide a deterrent against abusing the law, and a legal remedy for the victims of undeterred liars.
This law is so discriminatory and dysfunctional it’s almost designed to fail. As written, and as it would interact with the current legal environment faced by men accused of rape, it won’t simply protect rape victims from further abuse. It provides for any woman willing to use it a weapon which can be deployed in any custody battle. All she has to do is accuse her child’s father of rape, and the burden of proof will be on him. At the same time, it denies male victims equal protection, leaving them vulnerable to extortion by their rapists, endorsed and facilitated by the legal system. It appears as though this law was written to be abused, instead of to protect.
This is what the results of feminist advocacy look like.