A controversial ruling in America has given a convicted rapist the right to contact with his daughter, after raping his victim when she was only 14. And our British courts are heading in the same direction. Is there ever a justification for allowing this kind of contact?
The starting point for any application for contact in the UK is that every child has the right to know his or her biological parents, and so the way in which a child is conceived is often ignored. It is incredibly difficult to make generalisations about rape as it can involve personal relationships, cultural and social expectations and the creation of legal responsibilities which can affect the way a rapist views his relationship with the child he accidentally fathered. And yet, looking at rape from a child's point of view makes the way forward much clearer.
The now infamous statistic that three out of four rapes are committed by someone the adult victim knows gives the impression, or suggests the existence of a close relationship, but in reality only 25% of rapes are committed by someone the victim has been or is, in an intimate relationship with. Knowing the name or face of your rapist does not in itself create familiarity or the kind of trust which automatically implies sexual consent. Neither does a family tie or friendship. Whilst courts around the world are quick to point out that these principles are understood, the kinds of contact orders being made today suggest that these principles are not understood well enough.
The impact of rape lasts long after the physical event has taken place. Women who have been raped are more likely to commit suicide and are prone to Post Traumatic Stress Disorder, which can include flashbacks, severe anxiety, recurring nightmares and depression. Allowing a rapist to have access to a child born out of a rape only enhances the trauma and forces the victim to relive that fear and anxiety on a regular basis. This directly impacts a child, who may find herself or himself without a mother if she is unable to cope with the added stress of seeing her attacker for prolonged periods of time and has to place her child in care if she can no longer parent through the pain.
Whilst the starting position in our family courts is that every child should have the right to know their father, this sidesteps the difficult issue of whether a rapist can ever be fit to parent. It's a fundamental question no-one is asking: can a person who prioritises their agenda over others to such an extreme that they are willing to commit a violent crime to satisfy it, ever put a child first?
There is also evidence to suggest that some men who father children through rape only ask for contact after they have been forced by a court to pay child maintenance. There are no figures available in the UK or the US to show the percentage of rapists who go on to ask for visitation rights after they have been forced to provide financially, but this trend is concerning enough that justice systems around the world should be looking to collect this information and analyse it. As rape is an act of control, seeking to enforce parental rights over a child after being asked to provide for that child could well fit into coercive patterns of behaviour which could lead to maltreatment of the child at worst, and at best lead to the child being used as a pawn to control the rape victim.
Charles Pragnell, an independent expert defence witness for child protection says he is deeply concerned by the rise in contact orders for rapists:
"A rapist's intent to exercise power and control over the female stems from a misguided belief in male entitlement and rights. This can never be construed as being in the best interests of the child... Birth by such an act will cause permanent emotional and psychological harm to mother and child and for them to be forced to engage with the violator in any manner is unconscionable. "
It is this concept of enforcement which creates enormous problems. A child may at some point want to know who her father is, because he makes up part of her genetic makeup. If that is the case, any child wanting to meet her father should be able to do so. But discretion should remain with the child, and her mother where the child is unable to decide for herself. In some states in America, if a man has been convicted of rape, the victim can apply to terminate the rapist's parental rights. This kind of protection is not available to women in the UK - perhaps it should be.