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A rape survivor's custody battle for her child
01:34 - Source: CNN

To learn more about parental rights laws for rapists throughout the United States, watch “This is Life with Lisa Ling” Sunday, November 20 at 10 p.m. ET.

CNN  — 

Trapped in a bad dream.

That’s how an 18-year-old Noemi felt when she learned that she had no choice but to hand over her baby daughter to the man convicted of assaulting her.

Noemi’s child was conceived in the assault, and Nebraska’s laws on parental rights forced her to agree to court-sanctioned visits between her daughter and her attacker.

Noemi with her daughter, who was born after Noemi was raped.

For Noemi, who asked CNN to protect her privacy by not using her last name, it amounts to putting the most cherished part of her life in harm’s way.

Her biggest fear is that her child will “get hurt or something bad will happen to her,” Noemi told CNN’s Lisa Ling. “I can’t tell what he will do to my daughter.”

Noemi’s story isn’t unusual. Across America, there are state laws that don’t protect women who became pregnant through rape from being forced to share their children with their rapists.

A common problem

Exact stats aren’t tracked, but there are an estimated 17,000 to 32,000 rape-related pregnancies in the United States each year, according to the National Conference of State Legislatures.

About 32% to 50% of impregnated rape victims keep their babies, according to various studies.

Those estimates would put between 5,000 and 16,000 women at risk of falling into this legal limbo every year, depending on where they live and where the attack took place.

“Increasingly, people are coming out and saying, ‘This has happened to me,’ ” said Rebecca O’Conner of RAINN, the Rape Abuse and Incest National Network.

‘Forced to parent with him’

In Noemi’s case, this real-world nightmare is not only frightening but frustrating. Setting up visits between her child and her attacker has become an emotionally difficult part of daily life.

“Now, I have to text my rapist or email my rapist,” she said. “To leave my daughter with someone I didn’t trust. (I’m) forced to parent with him and to see him on a weekly basis … to talk to him about my daughter’s school activities and her health.”

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Rape victim forced to co-parent with her attacker
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Trying to find a way out, she said, nearly brings her to tears. “I think I’m stuck in this situation because he gets that right from the state, and there’s nothing that we can do.”

In 2011, Noemi was – in her words – a “very naive” high school student with a part-time job at a fast-food restaurant in Norfolk, Nebraska. “I had no idea what sex really was,” she said. “I was just so inexperienced.”

One night after her restaurant shift, a co-worker invited her over to his house, she said, and raped her.

After discovering that she was pregnant, Noemi briefly considered an abortion. But “after I went to the doctor and I heard her heartbeat, it was kind of hard to say no,” Noemi said. It wasn’t her daughter’s fault that she was conceived in violence.

Her attacker was charged with first-degree sexual assault but was able to plead to a lesser charge of third-degree sexual assault.

Under Nebraska law, Noemi could terminate her attacker’s parental rights if he’d been convicted of sexual assault in the first degree. But because he was convicted of third-degree assault, his parental rights were safe.

When Noemi applied for state medical assistance for her daughter, she was asked to name the father, and the state requested child support from him. Five months after Noemi gave birth, her attacker began demanding regularly scheduled visits with his biological daughter.

For Noemi, handing over her daughter to her attacker is like being trapped in a bad dream.

Eventually, Noemi’s attacker won unsupervised visits with his daughter for a few hours every other weekend and two Tuesdays each month. Though horrified, Noemi really didn’t have much choice.

How your state views parental rights for rapists

The question of conviction

Of all 50 states and the District of Columbia, fewer than half have laws that allow the termination of parental rights to rapists without a conviction.

In some of those states, Noemi’s attacker could be blocked from visiting her daughter if there was “clear and convincing evidence” that he raped her – no conviction of first-degree sexual assault necessary.

Laws with this clear and convincing evidence standard allow termination of parental rights if evidence is presented in family court that the father committed sexual assault during conception of the child.

A family court judge would rule if the evidence was “clear and convincing” under civil law. For example, this could include witness testimony that the defendant committed rape, as long as the defendant didn’t have a solid alibi.

For pregnant rape victims, requiring criminal convictions makes terminating their attacker’s parental rights very difficult.

Rape is notoriously under-reported to police and ends in relatively few convictions. About 19% of raped women over 18 report their rapes to police, according to the National Institute of Justice (PDF). Only 37% of reported rapes result in criminal prosecution. Of those, only about 46% result in conviction.

How we got here

This whole legal mess is rooted in laws that were written more than half a century ago, experts say.

Back then, society didn’t legally acknowledge parental rights for children who were born to unmarried women – “or, to use an antiquated term, ‘born out of wedlock,’ ” said Multnomah County, Oregon, Circuit Court Judge Katherine Tennyson, president of the National Council of Juvenile and Family Court Judges. “So traditionally, laws didn’t take into account how was the child was conceived.”

Attorney Shauna Prewitt, who also became pregnant from a rape and chose to raise her child, believes society has created a “biased prototype … that all pregnant, raped women hate their unborn children.”

This point of view fueled an assumption that these women would have abortions or give up their children for adoption – which obviously would make the concept of co-parenting unnecessary. All this, experts say, has left the 21st century with a big legal disconnect between parental custody laws and laws governing rape and sexual assault.

What’s being done?

Next year, Noemi plans to testify before Nebraska lawmakers considering legislation aimed at protecting her and thousands of other mothers from being forced to share their children with rapists. She’s already preparing her testimony and hoping to help change the law in her favor.

The battle to enact rape laws allowing termination of parental rights has also been raging in Maryland for years.

“A man who conceives in the course of a sexual assault should have no rights to the child or family contact. Committing a crime does not make you a father,” said Maryland state Sen. Jamie Raskin, who sponsored a bill that ended up stalling in the legislature. This issue is seen as a matter of state and not federal law because it’s never been challenged in the US Supreme Court.

“What we’re talking about is a family law proceeding,” said Raskin, who was just elected to his first term in the US House of Representatives. “The family law judge could make the decision that the father shouldn’t have parental rights without waiting for a criminal conviction.”

How one woman changed her state’s stance on parental rights for rapists

Supporters plan to try again to pass a similar bill in Maryland next year.

‘More pain in a painful situation’

Is there ever a scenario in which a convicted rapist who served his punishment and genuinely demonstrated reform should have the opportunity to be a father?

That’s a tough question, Tennyson said. “While everyone would like a law that works for every situation, that’s not always possible.” Sometimes, the solution doesn’t lie in the law itself, she explained, but in the hearts of the parents who are involved.

“Some acts are not acts from which you can recover. The bigger act is for someone to acknowledge that they should not have a role in a situation that might cause more pain in an already painful situation,” Tennyson said.

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Rapist's custody demands devastate victim's family
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Prewitt said it’s important to keep in mind the impact that co-parenting would have on the mother, who always would be confronted with the trauma of her rape.

“It has a really negative affect on women. They’re more likely to abuse alcohol; they may not be able to hold a job. … All these kinds of issues might arise,” Prewitt said. “It’s more like suffering from post-traumatic stress disorder. And when you have two parents who cannot co-parent … you have a certain situation where one parent’s rights have to fall away. In this circumstance, it should be the one who committed the bad act.”