The New Yorker Radio Hour - The Custody Battles Awaiting Mothers of Children Conceived in Rape

Episode Date: January 31, 2023

Exceptions in the case of rape used to be considered a necessity in abortion legislation, even within the pro-life movement. But today ten states have no rape exception in their abortion laws, and more will likely consider moving in that direction this year. “I think few people understand how common this scenario actually is,” the contributing writer Eren Orbey, who has reported on the issue, says; according to C.D.C. statistics, nearly three million women have become pregnant as a result of rape. With abortion laws changing, more and more women will be forced to carry these pregnancies to term. In some cases, they’ll find themselves tied to their assailants through the family-court system until their children turn eighteen. “Many states . . . require a conviction for first-degree rape—which is really hard to come by even if there’s a lot of evidence—in order to terminate parental rights,” Lucy Guarnera, a professor of psychiatry and neurobehavioral sciences at the University of Virginia, says. Orbey talks with Guarnera, one of a few researchers who have studied this issue in depth, and with a mother of twins about the challenges of parenthood under these conditions. “The reality is: these exceptions are far less effective than we assume they are,” Orbey says. “They create the false impression that we’re taking care of all rape survivors when we’re not.”  New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is the New Yorker Radio Hour. I'm David Remnick. Since the end of Roe v. Wade, and in fact, even before, many states have enacted bans or effective bans on abortion. One of the most fraught questions has been what exceptions should be made and when, if any at all. Exceptions in the case of pregnancy from rape or incest used to be considered necessary, even within the pro-life movement, and that's all changed. To date, 10 states have no rape exception in their abortion restrictions. More will likely consider moving in that direction this year. And as some members of Congress weigh the idea of a federal abortion ban, the question now concerns every one of us. I think few people understand how common this scenario actually is. According to the CDC, almost three million women in the U.S.

have become pregnant as a result of rape. Recently, the New Yorker's Arend Orbe took a closer look at what happens when a woman conceives during an act of sexual assault and what happens when those pregnancies go to term. There's one woman in particular whose story really stuck with me. I'm going to call her Teresa. She told me that when she first discovered she was pregnant,

this was back in 2016. She was in her mid-30s. She was in a good place in her career, and she felt ready to have a child. The day I found out I was pregnant I went to Rite Aid because my period hadn't started. So I said, let me just go to Rite Aid and take a pregnancy test. And I took it right there in the bathroom, the Rite Aid,

in the dirty restroom. I took the pregnancy test. And it was positive. And when I saw that, I just lit up. I went to the whole store to know that I was pregnant. She found out at her first prenatal appointment that she was actually pregnant with twins, a girl and a boy. During her pregnancy, her relationship with her partner at the time ended up falling apart.

But she still wanted to raise the twins. She felt that she had the support she needed from her family to make it work. When I gave birth in the hospital, they were asking about what the twins' last name was going to be and who the father is. And I said, I wanted to be my last name. and I put down my ex as the father, and I filed for child support because I needed financial help for two babies. And we had a hearing in November of 2017. And in that hearing, I'll never forget it, the first thing the judge said out his mouth was, the gentleman is not the father.

I said, what? I said, there's no way. There is no way that's not possible. He must have paid somebody to take his paternity test or, he must have lied or they must have made a mistake. Now, at this time, I knew that I had been sexually assaulted. And it was during the time that I was with my ex. So I never thought in a million years that the gentleman could be the father of the twins. But in order to eliminate him, I asked him to take a paternity test and he complied.

What Teresa told me is that she was raped by a co-worker on a trip to Las Vegas in the summer of 2016. He maintains that this sexual encounter was consensual, but she says that he forced himself on her despite her repeated attempts to tell him no. At the time, she didn't know much about the procedures for reporting sexual assault, and she didn't even think to take it to the police. She says she didn't speak to him about it again until this moment, more than a year later, when she asked him. for the paternity test to rule him out as a potential father. And the day that I got the email for the results, my heart sank to my stomach. I was driving back from lunch, checking my email while I'm driving.

And it's 99.99% he was the father. What was going through your mind at that time? I was a little bit, I had so many mixed feelings. I mean, I can't even describe it. It was just like, like, confused, angry. It wasn't consensual. I don't know him. I never lived with him. I was never in a relationship with him. It was just like a explosion of feelings and emotions in my mind.

You know, with abortion laws changing, more and more women are going to find themselves in situations like Teresa's, carrying pregnancies to term that resulted from rape. But I don't think we're talking enough about what happens afterward, what it's like to live with the reality of raising that child. People who make laws haven't been raped, or they don't know what it's like living in our shoes and what our world is. I feel like I live in a bubble because I'm a single parent of twins, which is hard naturally by itself, but also twins conceive from rape and sharing custody with my rapist.

No one really can relate to my struggle. No one can relate to my world. In my reporting, I talked to a researcher at the University of Virginia named Lucy Gornera, She works at the Institute of Law, Psychiatry, and Public Policy, and she's one of the very few people who have studied this issue in depth. She says that once women give birth, they're often tied to their assailants, through the legal system, through the family court system, for the next 18 years. We've got 50 different states in this country with 50 different systems, but in many states, you require a conviction for first-degree rape, which is really hard to come by. even if there's a lot of evidence in order to terminate parental rights of a rapist father. You might wonder why a man who father's a child through rape would even want custody or visitation or parental rights or any involvement with a child.

For one, there's the issue of money. Generally speaking, the more custody a parent has, the less they'd be required to pay in child support. But it can also be about control. As part of her research, Gornera talked to dozens. of women in these situations, and the stories that they've told her are pretty grim. So I had multiple participants talk about rapist fathers who, you know, while they were pregnant or shortly after they gave birth, threatened them or blackmailed them and said, hey, if you go to police or you continue cooperating with police, I am going to make your life a living hell.

I'm going to get access custody and visitation access to your child. I'm never going to stop until I have full custody. So, you know, you better drop that. you better drop that criminal case right now. And in some circumstances, this worked. I have one woman I'm thinking of specifically where she wanted to place a child for adoption. And the perpetrator said, if you place that child for adoption, I will get custody because you've relinquished your parental rights unless you agree to drop this criminal case. And so she did because she was more concerned about securing a safe life for her child than she was about potentially landing this guy.

in jail. I found it really striking when she started reading to me from literal transcripts of the conversation she's had with these women. One of my participants said to me when I asked, you know, why you think you're assailant went after custody, she said, to hurt me. You know, if you couldn't have me, he wanted what I had. Oh, no, he doesn't care about my son at all, at all. He cares about making my life miserable.

I know that sounds really conceited, but I swear to God, that's what it is. Another participant shared a similar sentiment, she said. He made it very obvious that he didn't want to be a father. He wanted to control me. I think it's just all for control, you know. He didn't want me to have the baby, and then me having the baby, I was kind of taking control of my own body, taking control of my decision to have her. So, you know, the next best thing to kind of ruin me for disobeying him and taking that power away from him is to try to take her away from me. I don't know if a power trip is the word I'm looking for, but I think.

think that's what it is, and it's all just for power. I mean, isn't that what sexual assault is? You just want to overpower your victim. As far as child support, I opened and closed so many cases because I wanted to put him on, but then I was scared. I was scared that he would just turn into this monster and just be so harsh towards me, and I just wanted to keep the peace. And I suffered because of that.

Teresa says she kept things pretty informal between her and the Twin's Day. dad for a while. He'd help out with money or he'd come over to visit once a week, but he didn't want a formal court arrangement. But when the twins were two, Teresa did finally file for child support because she felt that she was eligible for more money than she was getting through the informal arrangement with their dad. His attitude towards me totally changed. He said, okay, well, I want 50-50 custody because that should be half and I'm entitled to 50-50 custody. And I said, well, you know, I don't agree with that. And, you know, maybe when they get older, you know, if they want to be with you more,

maybe it should be their choice. But I don't agree with that right now. They're not even two years old yet. And I don't even know you and I don't know your girlfriend and I don't even know your family. When I spoke to the twins' dad, he denied that his pursuit of custody is in any way tied to money. And he declined to answer other questions about the case. Ultimately, it went in front of a family court. judge. For various reasons, the rape allegations were essentially set aside. The judge told Teresa

basically that while she was entitled to her version of events, her co-worker was also entitled to his. He was granted partial custody of the toddlers, and Teresa says the day the kids first went to his house under that arrangement is burned into her memory. I never will forget how I felt. I was, I had the most anxiety. I've never had anxiety in my life. I've never had anxiety in my life. But that was the most anxiety I had. My daughter actually threw up in the car, in the car seat, putting him in his car because she didn't want to go. They didn't know what was happening to them. They were two, just turned two in April at the time, and this was in June.

So I just felt sick to my stomach, like, what is happening? Why do I have to put my kids through this? And it was the worst day in my life. I want to hear more about how this process has affected your kids. Have you thought about how you're going to explain your relationship with their dad to them? Yes. Yeah, I think I'm going to be honest. I'm going to tell the truth.

I'm not going to do anything that is negative because, you know, in our orders, it says that neither parents shall speak negatively. So, you know, we have to keep all that stuff. private from them. But I want to be honest with them. When they're of age, you know, 18 or older, I want them to know the truth. I am an advocate for sexual assault survivors. It's a cautionary tale to men and women and I want my daughter to be safe. I want my son to know, no means no, and stop means stop. It doesn't matter even if you guys had sex. before or even in the middle of having sex. No means no stop means stop. And I think it's fair that

they know the truth because we weren't in a relationship. I mean, there's, that's a fact. We weren't living together. We weren't dating. He was just a coworker who unfortunately sexual assaulted their mother and he asked custody. That's a woman we're calling. Teresa. Our story from Miranda Orbe continues in a moment. For Guarnara, the researcher at UVA, the biggest obstacle facing women in these situations is a lack of access to the right information. So few women who find themselves pregnant as a result of rape know what to do, who to turn to for legal advice, or even how to begin navigating the family court system. So many women I talk to brought up these unintended consequences of doing one thing that they just had no idea would have

a negative effect on them later on. And if they had known, they could have chosen differently. So for example, one woman I spoke to talked about how she chose to put the perpetrator's name on the birth certificate because she felt like he needs to, this was some sort of affirmation of what he had done of saying, yes, he really is the biological father of this child. And she thought it would be easier for her to get child support that way. But it turned out later on the fact that his name was on the birth certificate made it much easier for him to sue for custody because it was some sort of acknowledgement that he was a, you know, a quote unquote, real parent. A woman I interviewed explained that towards the very end of her pregnancy. You know, she's about to give birth pregnancy resulting from rape.

She wrote on Facebook to a friend, you know, hey, I'm excited about being a mother. I can't believe that this baby is about to be born. And in fact, that Facebook post was used in court in a custody case against the person. perpetrator to argue that she hadn't actually been raped because the thinking goes, hey, if you were really raped, you wouldn't be happy about a pregnancy or about an impending birth, so you must be lying. There is another procedure, a civil, rather than criminal one, that some states have adopted. It came about during the Obama administration.

In 2015, Obama signed a law encouraging states to make it easier for women in Teresa's case. Essentially, it allowed states to terminate parental rights of a father without, a criminal rape conviction. It just requires enough evidence, clear and convincing evidence, it's called, that the child was conceived in rape. This is a lower standard of evidence than the criminal, beyond a reasonable doubt one, but it's still difficult for women to prevail. And there's not much research about how common this procedure is, how often it's used, or whether it's successful in protecting women in Teresa's situation. A lot of these women's outcomes depended on And I hate to say it, it seems like arbitrary chance, you know, whether they happen to be raped by someone who was going to interfere with their lives or not.

Whether they happen to encounter a police officer or a prosecutor who, you know, knew enough to do the right thing, this is arbitrariness. And this is not a good way to assure that women are getting what they need. You have to understand, we're talking about a legal system, judges, prosecutors, social workers, many of whom just, don't understand how a woman would act after becoming pregnant as a result of rape. For instance, even reading the transcripts from some of Teresa's hearings, I was shocked how quickly the judge seemed to assume that she was just some sort of disgruntled ex. It was almost as though once her twins were born, any consideration of those circumstances around their birth was relegated to this past. It was like a door was closed, and she

She couldn't go back there. I've been told to get over the rape, and that happened in the past. And I compared that to, like, having a cancer diagnosis. You know, you wouldn't tell somebody, get over your cancer. PTSD, rape, sexual assault, those survivors, you know, sometimes they can get over it and go to therapy and forget about it. But it's a traumatic experience that now I have to face every day to call my twins. I have to go through him. So I can't get over something that mentally, if I wasn't strong enough and stable enough,

I would have taken my life. I'm wondering if you'd known from the start who the father was, would you have considered other options, maybe arranging for an adoption or trying to get an abortion? It's difficult to think about because your kids are now such an important part of your life. but I ask because it must have been really daunting to realize that both you and your children were in some way going to be exposed to someone who'd harmed you. Correct. And if I would have known, I would have reported it sooner.

I would have reported the assault. I would have tried to, you know, have the law hold him accountable to what he did so that for my protection and for my children, he would have limited rights, if any at all. And as far as the twin pregnancy, if I did know that he was the father, I still would have kept them. I have great support for my family. My parents come from big families. So I felt pretty good about knowing that I was going to have a village and family support to keep this pregnancy. I think, you know, I would have just hoped and trusted that the laws and the legal side would have protected me from being forced to anything that I didn't feel comfortable or agree with.

You know, I went into this story really tightly focused on the question of rape exceptions in abortion legislation, how they could sort of prevent the situations that came up for the mothers I spoke to. And as a result, I was kind of primed to see the absence of rape exceptions in this legislation or the removal of them as a kind of catastrophic event. And it is. But the reality is, these exceptions are far less effective than we assume they are. They create this false impression that we're taking care of all rape survivors when actually we're not.

So, on the one hand, if you support full abortion bans, with no exceptions, you need to recognize that what that means is mothers might end up sharing custody against their will with their rapists. On the other hand, if you advocate for reproductive choice, you still need to acknowledge that these exceptions aren't doing nearly enough, or nearly as much as we think they are, to support rape survivors. And we need to do a whole lot better. contributing writer Erin Orbe.

He wrote about an anti-abortion activist's quest to end the rape exception. And you can find that story at New Yorker.com. This is The New Yorker Radio Hour. I want to thank you for joining us today. See you next time. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tuneiards with additional music by Louis Mitchell.

This episode was produced by Max Baltic. Breda Green, Adam Howard, Calilea, David Krasnow, Jeffrey Masters, Louis Mitchell, and Ingofen in Putabwele, with guidance from Emily Boutin and assistance from Harrison Keithline and Meherbatia. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.