“Woman Sues [Massachusetts] Over Required Contact With Rapist”

A reader e-mailed me about this incident and asked how it could be possible; for some sample coverage, see this WBUR story:

A 19-year-old Massachusetts woman is suing the state for requiring her to attend family court with the man who raped and impregnated her.

In court filings, the victim, whom WBUR is not naming, says she and her mother repeatedly told state officials that they “wanted no contact with [Jamie] Melendez for any purpose and that they did not want the child born of the crime to have a relationship with Melendez.”

Melendez pleaded guilty in September 2011 to a rape charge and was sentenced to 16 years probation, including regular visits to family court….

H.T. says Melendez was ordered to pay $110 a week in child support and then, in 2012, went to court seeking visitation. He offered to withdraw his request if the order for child support was voided….

I’m not an expert on this aspect of family law, but I’m pretty sure that even the distant possibility of visitation is present only because of a fact that the WBUR story doesn’t mention, though the criminal sentence (probation only) hints at it: this is a statutory rape case, not a forcible rape case. To quote the Massachusetts high court, which had decided an earlier aspect of the litigation, “A judge in the Superior Court found that when Melendez was nineteen years of age and the victim fourteen, the two were in a relationship and engaged in sexual relations. There was no evidence of force or coercion, and Melendez was not charged with forcible rape of a child.” (An ABC News story from last year adds that “According to the victim’s attorney, Melendez went to the girl’s house when he knew her mother would not be home and pressured her to have sex with him. She said she felt threatened and intimidated by Melendez.”) The UPI story likewise doesn’t mention that the rape here was statutory rape, and neither does the Courthouse News Service story.

Though most states apparently don’t have explicit statutes that bar visitation by convicted forcible rapists, I’m pretty sure that such rapists’ parental rights would still be terminated, on the grounds that they are unfit parents. Because parental rights are so important, the Court has held that such rights can only be terminated when unfitness is shown by clear and convincing evidence[1] — but a conviction of forcible rape strikes me as amply meeting this standard.

One can make the same argument as to statutory rape as well, especially when we’re talking a 19-year-old having sex with a 14-year-old, as opposed to two 17-year-olds having sex (which would be a crime in some jurisdictions, such as my own California). But apparently the law on the statutory rape / parental rights question varies from state to state, and is unsettled in many states. For discussions of the matter, see Shepherd v. Clemens (Del. 2000), LeClair v. Reed (Vt. 2007), and Peña v. Mattox (7th Cir. 1996). For an example of how some states deal with the issue, see Cal. Family Code § 7611.5 bars statutory rapists from having presumed father status (which is one step on the road to parental rights, though such rights could still be terminated on grounds of unfitness) if “the mother was under the age of 15 years and the father was 21 years of age or older at the time of conception,” but imposes no such bar if the mother was 15 or older or the father was under 21.

My guess is that the father will ultimately not get visitation rights, or any parental rights at all, partly because he was an adult having sex with a 14-year-old (rather than involved in what the law sees as less serious statutory rape, such as sex among two people closer in age, or where the younger is not quite that young), and partly because there is no ongoing relationship between the father and the mother. As Shepherd noted, the law sometimes distinguishes “violent rape and statutory rape on the basis that in some cases of statutory rape, the ‘victim’ and the perpetrator are in an on-going relationship, notwithstanding the statutory disability of the mother’s age,” and that it is therefore better for everyone involved (including the child) to allow the parental rights even to the statutory rapist; here, though, that factor is not present.

But in any event this is likely to remain a matter for state courts to decide, which is why I think the mother’s federal lawsuit will likely be rejected. Federal district courts are generally not allowed to intervene in state court determinations of parental rights; any federal constitutional objections on the mother’s part need to be raised in state court, at the trial level and, if necessary, on appeal. Ultimately, the U.S. Supreme Court can consider any federal objections on a petition for certiorari from a decision of a state court, though of course such petitions are very rarely granted. Until then, though, the determination of visitation rights is a matter for state courts, and though the mother understandably doesn’t want to even be involved in litigation with the father, I think that will be found not to be an adequate grounds for federal courts’ blocking the state proceedings.

[1] Note that custody can be denied to one parent in favor of another parent under a lower standard than the one discussed above: a judgment by a preponderance of the evidence that the best of interests of the child call for a particular assignment of custody. But denial of parental rights — and thus of all visitation rights — is allowed only when unfitness is shown by clear and convincing evidence.

UPDATE: I originally mislabeled the WBUR story as a UPI story; I corrected this, and also clarified my description of the ABC story. Still, it remains the case that neither the WBUR story nor the UPI story mention that Melendez was accused of statutory rape rather than forcible rape. Sorry about this, and thanks to commenter CockleCove for pointing this out.