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Ala. law terminates parental rights for anyone convicted of first-degree rape

The Alabama State Capitol building is seen on May 14 in Montgomery, Ala. (Elijah Nouvelage/For The Washington Post)

A new Alabama law requires judges to terminate the parental rights of people convicted of first-degree rape and certain other sex crimes, narrowing a legal loophole that allows rapists to seek custody of children conceived through their assaults.

The mandate is part of a new statute known as Jessi’s Law, which severs the parental rights of people who sexually assault their own children. But the 10-page measure includes one sentence with a much larger scope. Gina Maiola, press secretary for Alabama Gov. Kay Ivey (R), said the line terminates all parental rights of any person convicted of sexually assaulting anyone else, regardless of the victim’s age or relationship to the attacker.

The issue of parental rights for rapists gained fresh relevance in May, after Alabama lawmakers passed the nation’s strictest ban on abortion, outlawing the procedure even in cases of rape or incest. While the abortion law has been challenged in court, abortion rights activists fear it could force rape victims to bear children and then co-parent with their attackers.

Maiola said the new law, which takes effect Sept. 1, will address the issue — at least in cases where the assault results in a conviction. The law applies in cases of first-degree rape, first-degree sodomy and incest.

But activists say that, because the law requires a conviction, it leaves many victims vulnerable, since most sexual assaults are never reported, much less punished in court. They say Alabama judges should terminate custody if there is “clear and convincing evidence” that an attack occurred — the standard used in a majority of states, according to an analysis by the National Conference of State Legislatures.

“We need to mandate judges in family-law matters to immediately suspend any legal or physical custody or parenting time if the court finds by clear and convincing evidence that the child was conceived in rape,” said Rebecca Kiessling, an antiabortion family attorney who was conceived during a rape.

Kiessling and other activists also say the law is inadequate because it does not explicitly sever attackers’ parental rights of the children conceived during their crimes, a targeted law that exists in almost every other state.

Jessi’s Law was named for a girl who was raped by her biological father. Rep. Will Dismukes (R) introduced the measure during the recent legislative session, telling The Washington Post that it was intended only to address cases such as Jessi’s, in which a judge is seeking to terminate an abuser’s custody rights of their abused child.

The Post described the measure in a story published June 9, reporting that it would not address rapists’ parental rights of children conceived during rape — leaving Alabama as one of only two states in the nation without such a law.

As Dismukes insisted on the bill’s narrow scope, however, it was undergoing a transformation in the Senate Judiciary Committee, which quietly added the broader provision. But Senate Judiciary Chairman Cam Ward (R) said that his committee had a much narrower intention for the additional sentence, which was inserted only “to make sure an actual conviction occurred before parental rights were removed” in a Jessi’s Law situation.

“Looking back at the language,” he said, “it appears that the substitute went much further by actually allowing for the removal of parental rights in any case of rape, incest and sodomy.”

Lawmakers in both chambers approved the amended bill in the final frantic days of Alabama’s legislative session. It went to Ivey’s desk on May 29 and she signed it on June 10, a day after The Post published its story.

In a news release on June 17, Dismukes took issue with The Post’s June 9 story, arguing that the new law permits the termination of parental rights in cases when a child is conceived during rape and the rapist is convicted.

“Alabama law is crystal clear — rapists don’t have parental rights,” Dismukes said.

Maiola added that, even before the passage of Jessi’s Law, the state had a general law that permitted judges to end parental rights for people they deem unfit, which could be applied to cases of rape, incest or sodomy.

But women’s rights advocates argue that Alabama still fails to offer rape victims the level of protection available in most states — a notable oversight given the new abortion law. State Sen. Vivian Davis Figures (D), a vocal opponent of the abortion ban, vowed to sponsor such a measure.

It is critical, she said, “that the Alabama legislature addresses this issue at the next session to clarify the language so that the at-risk are protected.”