“It’s the craziest thing I ever heard in my life,” Shepherd said. “On the state level, people were shocked. How could Alabama even be missing this law?”
Alabama is one of two states with no statute terminating parental rights for a person found to have conceived the child by rape or incest, a fact that has gained fresh relevance since its lawmakers adopted the nation’s strictest abortion ban in May. That statute even outlaws the procedure for victims of sexual assault and jails doctors who perform it, except in cases of serious risk to the woman’s health.
While the Alabama abortion law has been challenged in court, abortion rights activists fear it could reduce access to the procedure, forcing rape victims to bear children and co-parent with their attackers.
Last month, Alabama lawmakers considered a bill that addressed ending parental rights in cases of rape that result in conception, but the legislature removed that language, limiting the law to cases in which people sexually assault their children. State Sen. Vivian Figures (D) and other lawmakers believed the language that was removed could have excluded boys who were assaulted, because they cannot get pregnant. Figures said she didn’t know Alabama lacked a statute preventing rapists from gaining custody of their offspring but told The Washington Post that she now plans to introduce a bill in the next legislative session.
“It’s just . . . unfair and even dangerous to these mothers and children,” said Figures, who voted against the state’s abortion ban.
Some antiabortion activists have been at the forefront of efforts to pass such laws. Rebecca Kiessling, an antiabortion family attorney who was conceived by rape, said the laws protect women who choose to keep their pregnancies.
“Maybe they wouldn’t abort or give the child up for adoption if they knew they were protected,” she said.
But laws terminating parental rights in rape cases have raised controversy.
Ned Holstein, board chair for the National Parents Organization, which advocates for shared parenting after divorce, said that allowing family courts to sever parental rights based on rape accusations is “an open invitation to fraud.”
“Taking a person’s child away is a grievous act,” he said. “And if it is done to an innocent parent, you are also denying the child a fit parent forever and putting her into the sole custody of a ruthless parent who is willing to fabricate a heinous accusation.”
Even if a person is convicted of rape, “there is merit on both sides of this issue, and we have no position on it, either way,” he said of his organization.
'Clear and convincing evidence'
In addition to Alabama, only Minnesota has no law terminating parental rights in rape cases. Many states adopted such statutes after Congress passed the Rape Survivor Child Custody Act in 2015, granting additional funding to help sexual assault victims in states that allow courts to end parental rights when there is “clear and convincing evidence” that a child was conceived by rape.
More than half of the 50 states use the “clear and convincing evidence” standard, according to an analysis by the National Conference of State Legislatures using Justice Department data.
That standard — defined as evidence that is “highly and substantially more likely to be true than not” — is also used in cases of child molestation, neglect or habitual drug use.
For example, the Kansas Court of Appeals in 2012 terminated a man’s parental rights to a child who was born after he allegedly raped the mother at a party behind a locked bathroom door. Several witnesses said they heard her say, “No, no, no. Stop it,” and other protestations, leading the Kansas civil court to determine there was enough evidence of rape to sever custody without a conviction, according to court documents.
The “clear and convincing” bar is lower than the “beyond a reasonable doubt” standard used in criminal trials, and some argue it might prompt false rape claims during divorce proceedings involving child custody.
This spring in Wyoming, lawmakers stripped “clear and convincing evidence” from a bill and instead passed a statute that allows termination of parental rights only after a rape conviction.
“We have a criminal justice system for a reason, and that protects the rights of the accused,” said Wyoming state Rep. Mike Greear (R).
Nearly half of states require a rape conviction to terminate parental rights. Several others allow either standard.
Activists argue that the conviction standard is too high, given that three out of four rapes in the United States go unreported, according to an analysis by the nonprofit advocacy group Rape, Abuse and Incest National Network, which used an annual study conducted by the Justice Department. While the data is debated, RAINN estimates that less than 1 percent of all rapes lead to criminal convictions with incarceration.
Karen Weiss, associate professor of sociology at West Virginia University, said that, despite social media campaigns to remove the stigma of sexual assault, many women remain too ashamed or reluctant to make formal complaints. That’s particularly true when they know their offenders, she said.
“For children or teens who experience rape or incest by a family member, reporting is especially complicated,” Weiss said. “Within families, there can be a dependence, expectation of loyalty, and even a sense of entrapment that engenders silence among its members.”
That was the case for Jessica Stallings, who said she was 12 when her mother’s half brother began climbing into her bed at night. Before she turned 18, she had endured four pregnancies. The first ended in miscarriage, and one son died of a disease more likely to occur in cases of incest.
Then her family forced her to marry her uncle, she said.
Stallings later fled, and a court deemed the marriage illegal because of a “familial relationship.”
She built a stable home in Fort Payne, Ala., for her sons, now 15 and 12. But in the winter of 2017, she discovered that she was not yet free of the man she calls “Uncle Lenny.”
Despite DNA tests that proved incest, he maintained parental rights to the boys and fought Stallings for visitation. A judge ruled he was entitled to see them for three days during Christmastime.
Her uncle — Lenion Richard Barnett Jr., 39 — could not be reached for comment, and his attorneys declined to speak about his case with Stallings.
“It’s sickening,” Stallings said. “I’ve spent my entire life scared to death of my rapist, and now, I’m fighting him for custody of my children.”
For Greear, the Wyoming lawmaker who supports the conviction standard, making it easier to take away the rights of the accused isn’t the answer.
“It’s a d--- shame that rape isn’t reported and not taken seriously enough by some,” he said. “What’s really needed is to de-stigmatize reporting rape and provide a safe environment for victims to report.”
He said he has particular concern for incest victims who would have an “almost impossible time reporting.”
“And that’s” — he paused and sighed — “that is just a terrible situation, and it doesn’t just happen in Alabama.”
These laws — or the lack of them — could affect thousands of parents and children annually. The estimated number of rape-related pregnancies in the United States ranges from 7,750 to 32,000, but there’s no accurate data for how many women keep those children, experts say.
“Many rapists commit assaults as a way to dominate and control,” said Lisae Jordan, director of the Maryland Coalition Against Sexual Assault. “Seeking custody is just a continuation of that desire to dominate.”
Such cases are complicated by a history of court findings that grant parents a fundamental right to the care, control and custody of one’s child, said Judith Lewis, legal director of the Barbara J. Hart Justice Center, a project of the Women’s Resource Center.
That makes judges reluctant to restrict parental custody and inclined to presume both parents are capable, Lewis said, and the result is state laws and court rulings that put the child in harm’s way and create emotional distress that makes parenting harder for the fit parent.
“We don’t tell someone that has robbed a bank that they can keep the money that they stole, yet the law allows someone that committed rape the right to parenthood,” Lewis said. “It’s appalling.”
Analyn Megison, a former Florida attorney who was allegedly raped by a man she knew, fought him for years for custody of her daughter, who is now 14.
“When my case was going on, Florida had no legal protection in place,” Megison said. “A rapist father was better than no father at all.”
Eventually, the man stopped pursuing the case, after the judge said he wanted a “full evidentiary hearing about how the child was conceived,” she said.
During that time, Megison became co-founder of Hope After Rape Conception, an organization focused on changing state laws to protect children and victims of rape. She worked with former federal prosecutor Charles Ehrhardt on model legislation in Florida with the “clear and convincing evidence” standard.
“Alabama must pass a law to terminate an attacker’s rights,” Megison said. “You can’t keep these women and children tethered to the rapist.”
Stallings has been fighting over custody of her children since 2015.
Her uncle, Barnett, recently was released from jail on bail after being charged with possession of methamphetamine and suboxone. Their 12-year-old son was in the car with Barnett when he was arrested, said Tyler Pruett, public information officer for the DeKalb County Sheriff’s Office.
“I understand the father’s rights,” said Pruett
, “but in this case — and we all know him around here — he’s not fit to parent.”
Today, inside her home in Fort Payne, Ala. — surrounded by photos of her children, house plants, and framed inspirational quotes — Stallings says she wishes that she had reported her uncle earlier.
“I had so much shame,” said Stallings, 32. “I spent my entire childhood pregnant and terrified he was going to kill me.”
One of the few times she felt free was when she lived in a Ronald McDonald House as her son Hunter was dying. She has a tattoo of his nickname, “Pooh,” on her wrist.
Stallings says that she reported her rape to the DeKalb County Sheriff’s Office in Alabama soon after the custody fight began, but a grand jury declined to take the case. The reason is sealed.
The sheriff’s office told Stallings that Barnett could lose custody because of his recent drug charges. But she is not optimistic.
“I lost faith in our courts a long time ago,” she said.
Stallings describes herself as “100 percent pro-life,” but says she feels compelled to “speak out and help other women” by showing that Alabama’s abortion ban is grievously unfair without changes in child-custody laws.
“I’ve decided I won’t be silenced,” she said. “I want other women in Alabama to know that their rapist may be in their lives — maybe forever — if this law isn’t passed.”
Alice Crites, Julie Tate and Chip Brownlee contributed to this report.