If a rape victim becomes pregnant following the attack, she has three options: abort the pregnancy, place the child for adoption, or keep and raise the child. However, by requiring proof of conviction of rape to terminate the parental rights of the man who fathered that child through his rape, the Commonwealth of Virginia imposes a substantial burden on a victim weighing those options. To obtain a conviction under the current scheme, a victim, through her local prosecutor, has to prove to a jury that the accused committed the rape beyond a reasonable doubt. The Commonwealth requires proof of conviction in custody proceedings and adoption proceedings, punishing both the victim mother who chooses to carry the pregnancy to term and the child born of rape. Although termination of parental rights is a civil matter, the Commonwealth currently imposes a criminal standard of proof on victim mothers.
Thus, this Note urges the adoption of the clear and convincing evidence standard in such termination proceedings. The current scheme debilitates a victim mother unable to secure a conviction against her rapist due to the unique and complex nature of the crime. The Commonwealth leaves the victim with no real choice in the matter: either abort the pregnancy and be free of her attacker forever, or carry the pregnancy to term and live in fear that her rapist will assert his parental rights over the child. The adoption of the clear and convincing evidence standard will help alleviate the life-altering harm facing a mother and child, and will ensure that all parties are given equal treatment under the law.
Jordan S. Miceli, The Haunting of Her House: How Virginia Law Punishes Women Who Become Mothers Through Rape, 78 Wash. & Lee L. Rev. Online 129 (2021), https://scholarlycommons.law.wlu.edu/wlulr-online/vol78/iss1/5