MEMORANDUM

December 12, 2017

TO: Dr. Lowderbaugh

FROM: Jenna Bachman

CH
MW

SUBJ: Submission of ENGL381 Bill Analysis Assignment

In response to the semester’s assignment sheet, we are pleased to submit our bill analysis
assignment on HB 428/SB 0574, also known as the Rape Survivor Family Protection Act.

While we all share full responsibility for the final product—and expect to share its grade—we
individually shouldered the following responsibilities:

· Jenna Bachman: Jenna compiled the arguments for and against the bill and the
differences between the House and Senate versions.
· CH: researched and developed the rationale and background of the bill.
· MW: researched potential effects that the bill might have if passed and wrote the
conclusion.

Together we shared full responsibility for conducting research and compiling a bank of
relevant information to the project. Each of us shared the responsibility of ensuring that our
sections were properly cited and organized. Additionally, we each wrote the components of
our executive summary relevant to our respective sections of the bill analysis. Similarly, we
shared responsibility in compiling the bill summary at the beginning of the analysis.

We understand that you will grade one copy of the bill analysis but that all of us will share
those comments and the product’s grade.

TABLE OF CONTENTS
2 – Executive Summary

4 – Rationale

5 – Background

6 - Differences Between House and Senate Versions

7 – Arguments Supporting the Bill

8 – Arguments Opposing the Bill

8 – The Bill’s Effects

11 – Conclusion

12 – Sources Consulted

EXECUTIVE SUMMARY

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The assignment is an analysis of House Bill 428/Senate Bill 574 in the 2017 Session of the
Maryland General Assembly. The act is entitled Family Law – Child Conceived Without
Consent–Termination of Parental Rights (Rape Survivor Family Protection Act).

The bill, in essence, adds a provision to the Family Law Code of Maryland that allows the
court terminate the parental rights of a parent who is found to have engaged in nonconsensual
sexual contact with the other parent that resulted in the conception of the child in question. It
permits a child’s parent to petition the court to terminate the rights of the other parent.

Under current Maryland law, this action is restricted to the Department of Social Services or
the child, via their court-appointed guardian, under special circumstances.

Proponents of this bill argue that it rectifies a gross injustice that results in emotional
suffering for rape victims and can perpetuate a cycle of abuse. Furthermore, Maryland stands
to receive a substantial amount of federal grant funding for programs that work to end
violence against women and sexual assault.

The opposition to this bill centers around the rights of the accused and the independence of
the judiciary–some legal experts are concerned that the procedures mandated by the
provisions in this bill will result in an unjust termination of parental rights and rushed court
processes.

The State can expect to see an increase in grant revenue should this bill pass.The federal
government currently has a grant program in place for states that provide a process by which
victims of sexual assault can ask for the parental rights of their assailant to be terminated.
State and local courts will experience little change in both their expenditures and caseload.

The effects on families would help prevent child abuse, which often coincides with domestic
abuse. Male children who are abuse victims are more likely to become abusers as adults; this
legislation would keep these children from experiencing abuse, lowering the likelihood that
they will later become abusers. Additionally, the bill may create a new forum for false sexual
assault allegations, though such allegations are uncommon.

We conclude by taking a stance in support of this bill and outlining the course we expect it to
take during the 2018 legislative session. The bill passed both chambers of the Maryland
General Assembly by a unanimous vote, but the Conference Committee could not reconcile
the differences between each version. The President of the Senate and the Speaker of the
House have publically stated they support the legislation and the latter will sponsor the House
version. Therefore, we expect that it will pass in the coming session.

LEGISLATIVE ANALYSIS

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 Bill Summary
HB 428/SB 574
Family Law - Child Conceived Without Consent - Termination of Parental Rights (Rape
Survivor Family Protection Act)

House Bill Sponsors

Primary Sponsor: Delegate Kathleen Dumais
Co-Sponsors: Anderson, Angel, Arentz, Atterbeary, Aumann, Barkley, B. Barnes, Barron,
Barve, Beidle, Branch, Bromwell, Busch, Carozza, Carr, Clippinger, Conaway, Cullison,
Davis, Ebersole, Fennell, Folden, Fraser-Hidalgo, Frick, Frush, Gaines, Gilchrist, Glass,
Glenn, Grammer, Gutierrez, Healey, Hettleman, Hill, Hixson, Hornberger, C. Howard,
Jackson, Jameson, Jones, Kaiser, Kelly, Kipke, Kittleman, Korman, Krebs, Krimm, Lafferty,
Lam, R. Lewis, Lierman, Lisanti, Luedtke, Malone, McComas, McCray, McIntosh, Metzgar,
Miele, A. Miller, Moon, Morales, Morhaim, Oaks, Parrott, Patterson, Pena-Melnyk,
Pendergrass, Platt, Proctor, Queen, Rey, Reznik, Robinson, Rose, Rosenberg, Sanchez,
Sophocleus, Stein, Sydnor, Tarlau, Turner, Valderrama, Valentino-Smith, Waldstreicher, A.
Washington, M. Washington, West, B. Wilson, C. Wilson, Wivell, K. Young, and P. Young

Senate Bill Sponsors

Primary Sponsor: Senator Brian Feldman and Senator Susan C. Lee
Co-Sponsors: Astle, Benson, Cassilly, Conway, Currie, DeGrange, Eckardt, Edwards,
Ferguson, Guzzone, Jennings, Kagan, Kelley, King, Klausmeier, Madaleno, Manno, Mathias,
McFadden, Middleton, Muse, Nathan-Pulliam, Norman, Peters, Pinsky, Ramierez, Ready,
Robinson, Rosapepe, Salling, Serafini, Smith, Young, and Zucker

Summary
This bill would give courts the authority to terminate the parental rights of a parent if they are
found to have committed an act of sexual assault that resulted in the conception of the child.
One parent is permitted to file a civil petition asking for the termination of the other parent’s
parental rights. The court can terminate an individual’s parental rights on two grounds: if the
parent has been convicted of sexual assault in a criminal trial and/or if the parent is found via
the civil proceeding authorized by this bill to have committed a non-consensual sexual act
that resulted in the conception of the child.

Delegate Dumais brought this bill forward nine years ago after Mary Shine, a licensed
clinical social worker, brought the issue to her attention because a young woman who had
been the victim of incest did not have a legal process to terminate the rights of her abuser.
This bill aims to give victims like her a legal recourse to terminate the rights.

Questions:
 What problem does this bill aim to solve?
 What does this change in the law?
 Whose rights affected and how?
 What burden of proof/ standard of evidence does the bill require?
 How does this bill affect criminal and civil proceedings?
 Who does this bill stand to help?

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  How have other states handled this issue?
 What kind of funding changes will occur should this bill pass?

Rationale

Currently, Maryland Family Law Statute Section 5-323 provides the court with the authority
to terminate the rights of both parents if at least one of the provisions provided in the Family
Law Code is met and if the court finds the action to be within the best interest of the child.
There is currently no judicial process in which only one parent’s parental rights are
terminated.

The only party currently allowed to petition the court to terminate an individual’s parental
rights is the Department of Social Services. In these cases, either no parental rights are
terminated or parental rights of both parents are. The Maryland Family Law Code lacks a
provision to allow a judge to terminate the parental rights of an individual who is found to
have forced the other parent into non-consensual sexual conduct that resulted in the
conception of the child at question.
House Bill 428 and Senate Bill 574 were proposed to grant the judge this authority.

This bill, entitled the Rape Survivor Family Protection Act, would provide a process by
which a victim of sexual assault can petition the court to terminate the parental rights of
his/her rapist.
It also would provide an explicit legal clause for a judge to use to terminate the rights of a
parent if it is found that the child was conceived through a nonconsensual sexual act.
Currently, judges have no judicial authority to terminate parental rights in cases of sexual
assault because they are required to apply existing provisions of the Family Law Code in
order to legally terminate the rights of a parent.

The bill presents two standards that must be met in order for the court to be able to terminate
the parental rights of an individual. Firstly, the the accused parent must be found to have
committed a sexual assault that resulted in the conception of a child. Secondly, the court must
find it within the best interest of the child to terminate the rights of the offending parent.

There are two ways the court can determine that a parent committed a nonconsensual sexual
act: if the parent was convicted in a criminal proceeding of rape that resulted in the
conception of child and/or the alleged assailant was found in a civil proceeding by “clear and
convincing” evidence to have raped the other parent. Clear and convincing evidence, though
a lower standard than the “beyond a reasonable doubt” standard used in criminal
proceedings, is typical for civil trials, which all parental rights cases fall under.

Across the country, rape is not frequently reported. Even when it is, it has low rates of
successful criminal prosecution. To prevent victims of sexual assault from depending on this
unreliable system, this bill gives them a civil process to request the termination of their
abuser’s parental rights. This process does not have any bearing on any criminal proceedings
against the defendant.

In fact, the respondent or defendant in these civil proceedings may refuse to testify or offer
evidence to avoid self-incrimination. The court cannot make any adverse inference from this

4
refusal. Any testimony that is made by the respondent will be inadmissible in a criminal court
of law (Hecker).

For the reasons above, the Rape Survivor Family Protection Act was created.

Background

Nearly a decade ago, a clinical social worker by the name of Mary Shine approached
Delegate Dumais with a proposition for a new bill. The social worker had encountered a case
in which a young girl became pregnant as a result of a non-consensual incest. The girl’s
assailant wanted to co-parent the child, and the girl was horrified that she had no legal
recourse to terminate the rights of her abuser.

Delegate Dumais consequently drafted the first version of what is now known at the Rape
Survivor Family Protection Act. She has sponsored the bill in every legislative session since
2008. For nine consecutive sessions, including the 2017 legislative session, this proposed
legislation has failed in the Maryland General Assembly (Testimony of Delegate Kathleen M.
Dumais).

In the 2017 legislative session, both the House of Delegates and the Senate passed the bill
unanimously. Though a Conference Committee was appointed to reconcile the differences
between the chambers’ versions, their deliberation did not finish before the legislative session
concluded. As such, the bill failed to become law. It will be reintroduced in the 2018
legislative session (Duncan; Weill).

As of 2016, a total of twenty-one states have passed legislation to give a court the ability to
terminate the parental rights of an alleged sexual assault assailant, but only if if the assailant
was criminally convicted of sexual assault (Figure 1.1). Figure 1.0 shows the states that have
recently developed new laws to terminate the parental rights of rapists. Only seven states do
not have any such procedures in place, including Mississippi and Alabama (Figure 1.2);
(Testimony of Lisa Jordan).

Figure 1.0 (Hare and Rose)

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Figure 1.1 (Hare and Rose)

Maryland does not provide a process for a victim of rape to terminate the parental rights of
his/her assailant, nor does it provide the court with the power to terminate the parental rights
of a person found to have committed rape, which resulted in the conception of the person’s
child. As of 2016, Maryland is one of seven states lacking this process (Figure 1.3).

Figure 1.2 (Hare and Rose)

Differences between House and Senate Versions:

Though this bill passed both chambers of the legislature by a unanimous vote, it died on the
last day of the legislative session because the Conference Committee failed to reconcile the
differences between the House and Senate versions of the bill. These differences are outlined
below to demonstrate what they would have to reconcile if the bills are reintroduced in the
same state as they were at the end of last session’s amendment process.

Most significant is the change in the time the parent has to file a petition to terminate the
rights of the accused–the House Bill states that the petitioner has seven years from the date of
birth of the child or the date on which the parent should have known the other parent’s
identity, while the Senate only gives the parent three years to do so.

The House Bill allows for a petition to be filed by a child’s court-appointed guardian before
the child becomes an adult, while the Senate bill only allows a petition to be filed by the

6
child’s parent. The Senate also eliminated the House requirement that the respondent has to
file a response to the claim no later than 30 days after service of the complaint.

The Senate struck the House provision that the courts could not require the publication of the
name or identifying information of the petitioner or child. They also eliminated the option
that the court could determine temporary custody of the minor child at the scheduling
conference, which establishes the date of the proceeding.

Many of the Senate changes provide more provisions for the accused, including requiring the
court to inform the defendant that they do not have to testify and that no inferences can be
drawn from their refusal to do so. The Senate version of the bill also makes clear that any
testimony the defendant offers in the civil proceeding cannot be used in any criminal
proceeding, not just criminal proceedings based on the same underlying facts as the civil trial.
It also further clarifies that the defendant can refuse to offer any evidence, not just testimony
that would incriminate them. Furthermore, they struck the House bill’s requirement that that a
defendant must be indigent in order to qualify for a court-appointed attorney for this
provision.

The Senate bill mandates that a criminal trial based on the same facts automatically stays the
civil proceeding, while the House bill had allowed for the civil proceeding to continue if both
parties agreed or the court ruled that it was in the best interest of the child. The Senate bill
also allows for the court to postpone the parental rights trial for good cause.

Arguments Supporting the Bill

The bill has support from an overwhelming number of local organizations, including ones
with as disparate viewpoints as Planned Parenthood and the Maryland Catholic Conference
(testimony of Delegate Dumais). The most common argument is a moral one—put simply, it
is unjust that a rapist be afforded parental rights. Advocates argue that allowing rapists to sue
for parental rights results in psychological and emotional trauma for victims, who are often
struggling to grapple with their assault, as happened with the case that prompted this bill.

Should a rape victim choose to keep custody of her child and her rapist be granted parental
rights, the victim would be retraumatized every time she would be forced to interact with the
person who raped her. Rapists can also invoke their parental rights to stop an adoption from
occurring, should the mother wish to carry the child to term (testimony of Delegate Dumais).
Giving this power to rapists also holds dangerous implications for their potential prosecution
for their crimes—they can use their parental rights as a way to intimidate victims into not
testifying against them, meaning that they go unpunished.

Additionally, this bill would repeal the requirement that the name and date of birth of both
the rape victim and her child be published when the rapist is unknown or otherwise cannot be
notified if the child is put up for adoption (testimony of Delegate Dumais). Many argue this is
an unconscionable violation of privacy that opens up both individuals to future victimization,
especially if the assailant did not previously know who his victim was.

Maryland would also receive an increase in federal funding for programs designed to prevent
sexual assault and violence against women if the bill were to pass. Under the federal Rape

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Survivor Child Custody Act, the Attorney General is directed to give grants to states that
have a court process to terminate the parental rights of rapists (H.R.1257). This award is
eligible for renewal for four years, potentially bringing substantial revenue to programs
designed to help prevent sexual assault.

The standard of evidence that would be used in these custody trials—clear and convincing
evidence—is in line with the guidelines suggested in the federal act discussed above (H.R.
1257). Additionally, using a civil trial rather than a civil trial helps protect more rape victims
than the criminal justice system—according to the Rape Abuse Incest National Network
(RAINN), only 7 out of every 1,000 rapists will be convicted (RAINN).

The bill has taken several amendments from legal experts to preserve the due process rights
of the respondent, including a provision that prevents the respondent’s testimony in the civil
trial from being used in a criminal trial for the same act (Testimony of Delegate Dumais).

Furthermore, this bill would bring Maryland in line with nearly every other state in the
nation—currently, Maryland is only one of seven states where there is no process through
which rapists’ parental rights can be terminated (Hare and Rose). The only other states that
do not provide rape victims with a process are Alabama, Mississippi, New Mexico,
Wyoming, North Dakota, and Minnesota (Hare and Rose).

Arguments Opposing the Bill

Many of the concerns about this bill have to do with the specifics of the legal process it
requires. The Maryland Judicial Conference, for instance, argues that some of the bill’s
provisions, including the requirement that a respondent answer a complaint within 30 days,
are taking away judicial discretion because they mandate decisions usually left to the court.
They also express concerns about the 180-day time frame required for courts to complete the
proceedings, which they say is extremely difficult to accomplish (testimony of Maryland
Judicial Conference).

Some legal experts, including former Maryland Delegate Luiz Simmons, are concerned that
the legal standard for terminating parental rights is too low because criminal convictions for
sexual assault are determined by the standard of “beyond a reasonable doubt,” which requires
a judge or jury to be 99% sure that a defendant did in fact commit the act. Clear and
convincing evidence, by contrast, requires only about 75% certainty. Though the nothing in
the trial can be used in criminal court, the trial is still essentially determining whether or not a
sexual assault occurred, consequently concerning some legal experts because it uses a civil
standard (Simmons).

Nineteen of the states that have laws terminating the parental rights of rapists, including
California and New York, require the defendant to be criminally convicted first (Hare and
Rose). While this bill does automatically terminate the rights of someone convicted of rape,
this bill provides a civil process that is independent of the criminal court, meaning that
someone who was found not guilty of sexual assault can still have their parental rights
terminated (Simmons).

The Bill’s Effects

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The bill would have a variety of effects in various spheres. The main stakeholders in this bill
are the families that it would affect, including the offending parent, the non-offending parent,
and their child, the courts and legal code, at both the state and local level, and the State
government and its finances. The effects this bill would have on each stakeholder are outlined
in the sections that follow.

Financial Effects

Last session, the Department of Legislative Services (DLS) projected that HB428/SB574
would have varied financial effects across different levels of government.

At the level of small businesses, DLS indicated that both the House and Senate versions of
the bill would have only minimal effects. However, neither fiscal note indicates, or
anticipates, what that minimal effect would entail (Botts; Botts).

DLS projected that the bill would have minimal impacts on both State and local courts as
well. Specifically, the organization did not foresee significant changes in “the finances or
workload of the Judiciary” (Botts; Botts). Additionally, DLS employees did not anticipate
either version of the bill having an impact upon local courts.

The fiscal note for the House version clarifies that the bill would not impact the Maryland
Legal Services Corporation’s (MLSC) spending. The Senate fiscal note makes no mention of
fiscal impacts on the MLSC. This is likely because the Senate version of the bill struck a
provision that would have exempted the MLSC from providing legal counsel to defendants at
its own expense. Because of this removal, the Senate version now mandates that the MLSC
provide counsel at its own expense.

The State could also see revenue increases if the law passes, coming from a federal grant
program that gives funding to states that allow sexual assault survivors a process through
which they can request that their assailant’s parental rights be terminated. This program was
enacted in 2015, after the passage of United States Representative Debbie Wasserman
Schultz’s bil–the Rape Survivor Child Custody Act (H.R.1257 - Rape Survivor Child
Custody Act.”). The grants available under this law are renewable for three years after the
initial year of receipt.

Legal Effects

This bill would specifically clarify in Maryland’s legal code that a parent convicted of
committing “nonconsensual sexual conduct against the other parent” via a criminal
proceeding may have their parental rights terminated. The specific legal code that it changes
is Maryland Family Law Section 5-323, which outlines how child custody should be awarded
(“Maryland Family Law Code 5-323”). It also establishes that parents may file a petition,
which, if granted, would terminate the parental rights of the person in question. Even if the
parent does not file a petition, the court has the express authority to terminate a sexual
assailant’s parental rights if the sexual assault resulted in the conception of a child.

9
The House and Senate versions of the bill offer nuanced differences in the handling of the
cases, which are outlined in the “Bill Summary” section of this this analysis. However, the
recourse each bill provides judges remains mostly consistent across both iterations of the
legislation. The one difference, noted in the “Financial Effects” section, is that under the
Senate bill, MLSC would have to provide legal assistance to parties regardless of whether or
not they are indignant (SB 574).

Potential Effect on Spouses and Children

A 2015 article published by CNN details the trauma that parents experience when they are
forced to share custody with their assailant. In an interview with Lisa Ling, a Nebraska
woman by the name of Noemi, who is beholden to a law that forces her to share custody of
her child with her assailant, said that she lived in fear of what her assailant would do to her
child (Patterson). This bill would have the effect of assuaging some of those concerns for her
child’s safety, as well as women like her.

There is evidence that suggests a link between spousal and child abuse, according an article
published by the National Center for Health Research. This article surveys various studies
regarding the linkages between types of abuse and concludes that “While there is no one
cause for child abuse and we have a long way to go before we can predict it, factors like
domestic abuse, both physical and psychological…put a child at an increased risk of abuse”
(Zuckerman, Becker, and Mazurak). While some of the studies these scholars discuss focus
on spousal abuse exclusively, they do point to a broader link between domestic abuse as
being a predictor for child abuse.

The United States Department of Justice (USDOJ) defines domestic abuse as “a pattern of
abusive behavior in any relationship that is used by one partner to gain or maintain power and
control over another intimate partner. Domestic violence can be physical, sexual, emotional,
economic, or psychological actions or threats of actions that influence another person”
(USDOJ). Because domestic abusers need not be married to the person they abuse, the
USDOJ’s definition of this type of abuse encompasses situations where a child was
conceived between non-married consenting and nonconsenting parties–the primary people
this bill affects.

Emiko Tajima of the University of Washington School of Social Work, who Zuckerman,
Becker, and Mazurak cite, writes that several studies have found that somewhere “between
40 and 70% of men who batter their partners also abuse their children” (Tajima 1384). While
not all women this bill affects are engaged in romantic relationships with their assailants, this
data does demonstrate that the children of women who were assaulted by their non-spousal
romantic partner are at a greater risk for abuse. Such children fall under the purview of this
bill.

Sexual assault is a type of domestic abuse–consequently, a parent who conceives a child by

sexually assaulting the other parent has committed abuse. Given the link between domestic
and child abuse, such a parent is at risk for their child. Because this bill would keep
these individuals away from their children, the likelihood of such abuse decreases.

There is also evidence to suggest that male children who were victims of sexual abuse are
more likely than the rest of the population to become abusers. A study published in The
British Journal of Psychiatry indicates that 59% of the men who have experienced sexual

10
abuse later became perpetrators of sexual abuse themselves (Glasser, Kolvin, Campbell,
Glasser, Leitch and Farrely 488). Should this bill be passed, this cycle of abuse would be
disrupted.

Another potential effect is that this bill could create a forum for false reports because of the
lower burden of evidence (Lonsway, Archambault, and Lisak 2). However, a 2009 report
from the journal The Voice estimates that only between two and eight percent of sexual
assaults are false reports. Furthermore, judges and juries still have the authority to check
these accusations, determining if these reports truly meet the standard of evidence.

Conclusion
After conducting our analysis, we conclude that this bill should pass. We also believe that it
is unconscionable that this bill has not already passed. Parents who have conceived children
in nonconsensual sex acts have no way of requesting that their abuser’s rights be terminated.
Though we understand the due process concerns raised by the bill’s opponents, the potential
effect on wrongfully accused abusers would likely be solved by affording the defendant the
right to a trial and a lawyer. The low prevalence of false reports also leads us to believe that it
would not be a large issue should this bill pass.

Many of the impacts outlined in the effects section of this bill analysis provide clear evidence
that there will be positive outcomes on the safety and health of the children and non-
offending parents. Furthermore, the Department of Legislative Services’ fiscal note indicates
few changes in the workload of State and local judicial systems but potential for an increase
in state funding–both positive impacts on the State. This bill also successfully addresses
safety concerns that children who were conceived via non-consensual sex and non-offending
parents face.

Though the bill did fail last session, we believe it has strong prospects in the 2018 legislative
session. Both Senate President Thomas V. Mike Miller and Speaker of the House Michael
Busch have committed to serving as co-sponsors on each of their respective chamber’s
version of the bill. Further, Speaker Busch intends to introduce it as HB 0001 in the coming
session, which indicates that he has made it a top priority (Cox).

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 Works Cited

Botts, Jennifer K. “‘Fiscal and Policy Note: Senate Bill 574 Family Law - Child Conceived
Without Consent - Termination of Parental Rights (Rape Survivor Family Protection
Act)".” General Assembly of Maryland, Department of Legislative Services, 29 Mar.
2017, mgaleg.maryland.gov/2017RS/bills/sb/sb0574t.pdf.
---. “‘Fiscal and Policy Note: House Bill 428 Family Law - Child Conceived Without
Consent - Termination of Parental Rights (Rape Survivor Family Protection Act)".”
General Assembly of Maryland, Department of Legislative Services, 27 Mar. 2017,
mgaleg.maryland.gov/2017RS/bills/sb/sb0574t.pdf.
Cox, Erin. “Bill Revoking Parental Rights of Rapists Gains Powerful Allies.” The Baltimore
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12
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