Sometimes Rapists Get More Rights Than Their Victims | Vol. 4 / No. 7.5

It will probably not surprise you (given my part-time job of ranting on the internet) to find that I’m seldom at a loss of words. I will wax poetic at length about multiple topics, interject into various conversations, and rant endlessly. But sometimes rage can make me actually incoherent. One story this month made me temporarily unable to word. In Massachusetts, a 22-year-old woman is fighting for the right to not have to give her rapist visitation rights for the daughter she had. Because he raped her. …Yep, that is some quality incoherent rage right there. So since I’m too rageful to make this a cohesive narrative, let’s make this a List of Patriarchal, Sexist, and Other Types of Bullshit That Make Elle Mad About this Story.

1a. This is the result of an insane law that says that judges can give convicted rapists visitation rights if it is in “the best interests of the child.”

In 2014, Massachusetts passed a law that basically said that a judge could override a mother’s ability to care for her child (and a mother’s rights to not have to deal with her goddamn rapist) with the following language:

No court shall make an order providing visitation rights to a parent who was convicted of rape, under sections 22 to 23B, inclusive, of chapter 265 or section 2, 3, 4 or 17 of chapter 272, and is seeking to obtain visitation with the child who was conceived during the commission of that rape, unless the judge determines that such child is of suitable age to signify the child’s assent and the child assents to such order and that assent is in the best interest of the child; provided, however, that a court may make an order providing visitation rights to a parent convicted of rape under section 23 of said chapter 265, if (i) visitation is in the best interest of the child and (ii) either the other parent of the child conceived during the commission of that rape has reached the age of 18 and said parent consents to such visitation or the judge makes an independent determination that visitation is in the best interest of the child.

Note the double language there. A court can make an order of visitation if it is in the best interests of the child and if the judge makes an independent determination that visitation is in the best interests of the child. So really, the judge just gets to bypass all the other possible qualifiers and go straight for his or her own determination.

1b. This isn’t something that is relevant to the actual case in this story since the rapist would-be-daddy actually got convicted, but notice how the language of the law specifies that the father must be convicted of rape to lose visitation rights. If he just rapes her and isn’t convicted, that is totally cool, he’s probably great father material. According to RAINN, about 35% of rapes are reported to the police. About 6% will lead to arrest. About 1% will get a prosecutor referral. .7% of rapists will get convicted.  So if you’re raped by one of the seven out of one thousand rapists that get convicted, good news, your rapist won’t be able to get visitation in Massachusetts. (If you’re in New Mexico, Maryland, North Dakota, Mississippi, Alabama, Minnesota, or *sigh* Wyoming, there are currently no laws on the books that protect rape victims from being sued for custody, conviction or not. This is the point at which, while writing, I had to take a break and go scream into the abyss for a minute.)

2. The woman is having to consider visitation for a rapist who committed statutory rape. The woman, only known as H.T., was only 14 when her rapist, 20-year-old Jamie Melendez, raped her. Melendez was charged with a crime that is literally called “rape of a child.” A judge thinks a man who pleaded guilty to something called “rape of a child” deserves a chance at custody.

3. After Melendez pleaded guilty to, say it with me now, “rape of a child,” he received 16 years of probation (PROBATION.) and was forced to pay a little over $100 a week in child support. (PROBATION.)

4. This is the “worst case scenario” result of rhetoric that encourages rape victims to keep the child conceived by rape. Anti-abortion advocates say that children conceived by rape are the innocent victims of their criminal fathers, and encourage women not to “exten[d] this pattern of violence and victim-hood” by having an abortion.  The idea is that the crime has already been committed, and that to abort the fetus would be to punish an additional victim of the crime. What this doesn’t take into account is the fact that custody cases can force a woman to deal with (and even civilly deal with) her rapist for years. Rapists can also use the threat of pursuing their parental rights in an attempt to negotiate lighter charges or sentencing, or to even intimidate victims into not coming forward in the first place. Women can be victimized, again, repeatedly, if they make the decision (or are forced by circumstances) to carry the child of their rapist.

5. This continues outdated notions that biology automatically equates to superior parenthood. Our courts, our child protective services, our basically everything, prioritize the idea that a biological parent automatically has a connection to, and a right to, a child. This is, excuse my language, bullshit. There’s a big difference between being an egg or sperm donor and being a parent. I’m rather effing certain that Jamie Melendez falls into the first category. When you think about the many permutations of “family,” including adoption, homosexual partners, polyamory, guardianship, blended families, and families of choice, it’s clear that having donated genetic material to the creation of a being is not the be-all, end-all of parenthood. Having someone who has proven to be capable of rape raise your child is not, and never will be, in the interests of the child.

There are probably more things that pissed me off, but that whole “anger causing trouble with words” thing is happening again, so we’ll have to cut the rant off here. This has been your weekly reminder that the world is terrible, people are awful, and the legal system appears to be designed to oppress anyone who is not a rich, white male. Next week I’ll try to write something that doesn’t cause feelings of despair. No promises.


Elle Irise is a regular contributor to This Week In Tomorrow. When she’s not trying to put out the mind-fires of rage, she studies gender in popular culture.


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