Sunday, February 20, 2005

Rapists and their Exercise of Parental Rights

Recently due to the impending marriage of Mary Kay LeTourneau, the elementary school teacher in Washington State and her former student Vili Fualaau, we are faced with the specter of a woman, convicted as a statutory rapist, eventually being allowed to exercise parental rights. Generally this is a secondary situation faced by women after a rape, as we are the usual victims of this sort of ‘emotional blackmail’; but as more and more women are charged with these sorts of crimes, the issues are going to become much more complicated.

Frankly, I can see nothing good ensuing from having a parent with the label of ‘rapist’ being involved in the everyday life of the children involved here or from allowing LeTourneau, herself, to enter into a relationship where she is automatically at a disadvantage in her role as wife and mother due to her criminal conviction for rape of the father here.

This is just wrong.

Hopefully whatever happens, her daughters will be allowed to remain with the Fualaau grandmother as they appear to be doing well there; while their mother and father proceed full-steam ahead with this god-awful idea of marrying.

Like I have said many time before and it still holds true, there is NO law against behaving like a jackass and this clearly is one aspect of human nature that is surely gender neutral…

Anyway, whether or not rapists can exercise parental rights, is still an issue that is handled on a state-by-state basis, each one having a different law addressing the issue, many appearing to be acting at cross purposes with their neighboring states. So, as usual, women in their role as mothers must be prepared for the worse, as we are the usual victims of rapists (statutory or otherwise) in spite of the high profile given stories lately where women commit this crime.

Rep. Sam Ellis was listening to the "Dr. Laura" show when he first heard the awful tale:

A young female caller was telling Dr. Laura that she'd been raped by a man and had gotten pregnant as a result.

She had decided not to abort but to put the baby up for adoption.

That's when the rapist took control of her life again.

To complete the adoption, she needed the birth father to terminate his parental rights.

The rapist, in custody awaiting trial, told her that he'd sign the papers -- if she agreed not to testify against him in the rape. As a result, the rapist would certainly be released.

What do I do? the young woman asked. Protect society or protect the adoption?

Dr. Laura advised that the young woman do what was right for the child. She wished her luck and moved on to the next call.

A rapist has rights over his victim's baby??? Not any more in North Carolina, thank goodness.

But Ellis, a Republican who represents Raleigh and Cary, was appalled; he couldn't let it go, in part because he thought the woman's Southern accent sounded familiar.

He called the show to see whether the woman could be tracked down. Dr. Laura was no help. But Ellis decided that, "even if the woman wasn't from North Carolina, the circumstances that created her situation were."

Ellis contacted the legislative staff and had a bill drawn up to prevent rapists from using parental rights as a way to intimidate witnesses.

Finally, during the final days of the recent session, the bill was wrapped up in another and expanded, so that the parental rights of convicted first- and second-degree rapists are automatically terminated. Convicted rapists must now petition the court to regain their parental rights.

"Basically, it reverses things," Ellis said. "Previously, it was the woman who had to spend the money and try to get the paperwork signed. Now the onus is off the victim."

Information provided courtesy of

Let us be clear with this; however, it doesn’t address the problem of most women in this situation, which is the problem of statutory rapists. North Caroline’s law ONLY addresses rapists convicted of First or Second Degree rape, this leave a LOT of rapists out there convicted of lesser charges still able to hold a club over the head of any mother who has a child in this situation.

Neither she nor her family (remember some of these mothers are as young as 12 or 13, so their parents would STILL be very involved in the decision making process here) yet they would still NOT even be allowed to put child for adoption with another family, if her or her family decided that was in her child’s best interest.

She could still be facing a custody fight and eventually even forced to pay child support to the perpetrator here. Even facing a custodial or visitation challenge from the paternal grandparent eventually, that could NOT be ruled out.

So North Caroline has NOT solved the problem, not by a long shot.

Overall, as we can see each state addresses statutory rapists differently and maybe this IS a large part of the problem, as we can see from the case below with the father being a statutory rapist of the 13 year old mother. New Mexico allowed the termination of his parental rights to proceed; however, New York would only have permitted this termination IF father was CONVICTED of rape in the FIRST DEGREE.

“…New York law recognizes certain parental rights for individuals guilty of statutory rape, as opposed to forcible rape, whereas New Mexico does not. In In re Craig "V" v. Mia "W", 500 N.Y.S.2d 568, 569 (N.Y. App. Div. 1986), relied upon by Respondent, the court held that an individual who has fathered a child by virtue of sexual intercourse which was consensual, albeit perpetrated under circumstances constituting statutory rape, is not precluded under New York law from bringing a paternity proceeding.

The New York court based its ruling primarily on the fact that "the legislative proscription against the right to notice in a proceeding affecting an out-of-wedlock child is limited to a father convicted of the crime of rape in the first degree, which involves forcible compulsion." Id. (citations omitted). The court observed that the New York Legislature "specifically declined to extend this limitation to the father of a child who may have been conceived as the result of any lesser degree of rape or sexual misconduct."

Information courtesy of FindLaw for Legal Professionals Case No. 95-2053

Thus we see that in New Mexico a mother/father victim would be safe from claims by a mother/father perpetrator of statutory rape. Whereas in New York it would be dependent upon the individual Judge hearing the case; so the mother/father victim is open to being victimized twice; once by the rapist and then again by the legal system.

Here below is another example in the state of Kansas where not only does the perpetrator mother retain her parental rights but the victim father is forced to pay child support to her, thus, as I said above being victimized twice; once by the perpetrator, then again by the legal system of Kansas.

The facts, as best we can determine them from an inadequate record, do not appear to be seriously in dispute.

Colleen Hermesmann routinely provided care for Shane Seyer as a baby sitter or day care provider during 1987 and 1988. The two began a sexual relationship at a time when Colleen was 16 years old and Shane was only 12. The relationship continued over a period of several months and the parties engaged in sexual intercourse on an average of a couple of times a week. As a result, a daughter, Melanie, was born to Colleen on May 30, 1989.

At the time of the conception of the child, Shane was 13 years old and Colleen was 17. Colleen applied for and received financial assistance through the Aid to Families with Dependent Children program (ADC) from SRS.

On January 15, 1991, the district attorney's office of Shawnee County filed a petition requesting that Colleen Hermesmann be adjudicated as a juvenile offender for engaging in the act of sexual intercourse with a child under the age of 16, Shanandoah (Shane) Seyer, to whom she was not married, in violation of K.S.A.1992 Supp. 21-3503. Thereafter, Colleen Hermesmann entered into a plea agreement with the district attorney's office, wherein she agreed to stipulate to the lesser offense of contributing to a child's misconduct, K.S.A.1992 Supp. 21-3612. On September 11, 1991, the juvenile court accepted the stipulation, and adjudicated Colleen Hermesmann to be a juvenile offender.

On March 8, 1991, SRS filed a petition on behalf of Colleen Hermesmann, alleging that Shane Seyer was the father of Colleen's minor daughter, Melanie. The petition also alleged that SRS had provided benefits through the ADC program to Colleen on behalf of the child and that Colleen had assigned support rights due herself and her child to SRS. The petition requested that the court determine paternity and order Shane to reimburse SRS for all assistance expended by SRS on Melanie's behalf. On December 17, 1991, an administrative hearing officer found Shane was Melanie's biological father. The hearing officer further determined that Shane was not required to pay the birth expenses or any of the child support expenses up to the date of the hearing on December 17, 1991, but that Shane had a duty to support the child from the date of the hearing forward.

Shane requested judicial review of the decision of the hearing officer, contending that the hearing officer "should have found a failure of consent would terminate rights." SRS sought review, asserting that the hearing officer correctly ruled that the issue of consent was irrelevant, but erred in allowing Shane to present evidence pertaining to the defense of consent. SRS also alleged that the hearing officer's denial of reimbursement to the State for funds already paid was arbitrary and capricious and contrary to the mandates of K.S.A. 1992 Supp. 39-718b.

The district judge, upon judicial review of the hearing officer's order, determined that Shane was the father of Melanie Hermesmann and owed a duty to support his child.

The court found that the issue of Shane's consent was irrelevant and ordered Shane to pay child support of $50 per month. The court also granted SRS a joint and several judgment against Shane and Colleen in the amount of $7,068, for assistance provided by the ADC program on behalf of Melanie through February 1992. The judgment included medical and other birthing expenses as well as assistance paid after Melanie's birth. Shane appeals the judgment rendered and the order for continuing support but does not contest the trial court's paternity finding. SRS has not cross-appealed from any of the orders or judgment of the district court.

Information Courtesy of:

Let’s keep in mind however that Colleen Hermesmann herself was a minor; so the decision might have been different if she was a legal adult when this occurred…

Again, just as with parental rights, custody and child support, there appears to be no standardization of anything regarding statutory rapists, with each state handling sentencing differently, as we can see from the list below:

On May 5, 1997, Stacey A.M., an adult, gave birth to Quianna M.M. The father was subsequently determined to be Quisto P., whose date of birth is August 13, 1984. On January 20, 1998, Stacey A.M. was convicted of engaging in repeated acts of sexual assault of Quisto P., contrary to Wis. Stat. §948.025(1), and sentenced to twenty-two years in prison. Stacy A.M. was also convicted of sexual assault of a child pursuant to Wis. Stat. §948.02(2) and sentenced to twenty years of probation consecutive to her twenty-two-year prison term.

A 21-year-old Columbus man who pleaded guilty to two counts of child molestation involving his 14-year-old sister was sentenced Monday to five years in prison. With his grandmother and sister standing near the prosecutor, Assistant District Attorney Don Kelly told Muscogee Superior Court Chief Judge Kenneth Followill that although complaints to police by the sister and grandmother launched the investigation that led to the man's arrest and indictment on incest, rape and child molestation charges, both now do not wish to prosecute. But Kelly said the state would not abandon the prosecution, instead agreeing to dismiss the incest and rape charges and issue a minimal recommendation of five years in prison and 10 years on probation for child molestation. The offender is not named here to avoid identifying the victim of the offenses.

A former Aloha Little League coach and umpire was sentenced Tuesday to 10 years in prison on sex-related charges. Authorities who arrested Michael Robert Harrison, 54, for abusing a child originally thought there might be victims who had contact with him through girls softball teams or boys baseball teams in Wolf Creek Little League. Investigators said no one else came forward to accuse Harrison after his arrest was made public. Harrison pleaded guilty Tuesday to one count of first-degree rape and two counts of second-degree sodomy involving a family member. The abuse happened several times between June 2003 and January, starting when the girl was 13.

A 47-year-old Pebble Beach man will serve four months in Santa Clara County jail and three years on formal probation for sexually molesting a 15-year-old Gilroy boy. Randy Domras saw his felony charge reduced to a misdemeanor at his sentencing Friday, nearly four months after he pleaded no contest to committing a lewd act with someone under 16. Domras’ private attorney, Mark Blair, argued that the boy claimed to be 18, the legal age of consent for sexual activity, but Superior Court Judge Kenneth Shapero said this is not an acceptable defense for such a charge - although it can be grounds for a reduced sentence.

A former volunteer fire chief was sentenced to 40 years in prison for having sex with a 12year-old girl. Timothy McGarry, 42, was sentenced Friday. He was convicted by a jury in June of three counts of lewd and lascivious battery against a minor. McGarry was chief of the Thomas Drive Volunteer Fire Department at Panama City Beach when he had sex with the girl, now 14, two years ago. Consent is not a defense if the victim is a minor.

A former Orlando sex-crimes detective who pleaded guilty to having a sexual relationship with a 14-year-old girl was sentenced to 26 years in prison. Edwin Mann, 42, was re-sentenced Tuesday on three counts of lewd or lascivious battery and one count of lewd or lascivious molestation.

She was 34, he was 12. They called it a love affair, but a judge deemed it a crime. Mary Kay LeTourneau, the elementary school teacher whose affair with her former student Vili Fualaau produced two daughters, will be set free on Wednesday after spending almost seven years in jail for second-degree rape. But according to sources close to Fualaau, now 21, and LeTourneau, 42, the pair hopes to renew their relationship, despite a court order banning them from contact for life.

Information provided courtesy of :
Information provided courtesy of :

Overall we can see that there is no logic, no consistency, and most of all no sanity as to how the laws are applied vis-à-vis statutory rapists or their victims regarding either sentencing (all over the place with one person getting four months-another forty years), parental rights (or even custody of said child) born of these relationships or child support. Again victim could EASILY wind up (in a state like New York which is always looking to cut public benefits very ready to hand child over to whoever) but victim could wind up paying child support to perpetrator, even PARENTS of victim could wind up paying child support of minor victim to perpetrator, if perp should get custody of child.

Still, these situations are more common for women to wind up as the victims of, then men. Thus women in their role as mothers must be careful, not just for ourselves, but for our daughters as well. We must always be alert that they do NOT become victimized twice by older men who seek them out for sexual gratification and then turn around and use any children involved as a vicarious ATM, generating monies from you or your family along with other benefits from the state.

No comments: