Should the law take away parental rights of men who became fathers via rape?

16 April 2019 - 07:26
By Palesa Lebitse
There is no explicit law in SA that prohibits a rapist biological father of a child from seeking visitation rights or even custody rights of a child conceived through that rape.
There is no explicit law in SA that prohibits a rapist biological father of a child from seeking visitation rights or even custody rights of a child conceived through that rape.

Consider a scenario where a convicted rapist who fathers a child conceived through that rape wants to enforce his parental rights following the birth of that child. Incredible, I know.

But this is actually happening in this day and age. It's however far worse when it is the government that offers the rapist an opportunity to see the child even though the child was born as a result of the attack.

There is currently outrage in the UK following the Rotherham case where a rape survivor "was left horrified" when the Rotherham council approached her rapist to encourage contact with his child.

A report last week states that Labour MP Louise Haigh said it was "inconceivable" that this could happen, and legislators are now trying to change their laws which do not expressly prohibit a rapist from contacting his child.

Haigh said that the UK needed to "flip the presumption that anyone who has fathered a child through rape should be encouraged to apply for access regardless of the risk they present, to removing that automatic right and allowing the courts to only grant access in exceptional circumstances if it is in the clear interests of the child".

And this atrocity is not isolated only in the UK, it is also a big issue in the US.

In all 50 states a victim of rape cannot sue her rapist for child support, yet in about 23 states, a rapist may sue for custody or visitation rights of a child born from rape. Unbelievable, right?

Shocking as this may be and while our courts have not yet heard a matter where a rapist seeks to enforce his parental rights, I did wonder if convicted rapists in SA may indeed have parental responsibilities and rights which they could enforce.

I found that we have no explicit law that prohibits a rapist biological father of a child from seeking visitation rights or even custody rights.

But in fairness, while parental responsibilities and rights in respect of children may be acquired automatically by the biological parents of that child - a rapist may not automatically acquire responsibilities and rights in respect of their children.

This of course is in view of the fact that, such a biological father (rapist) is in fact not regarded a "parent" in terms of the Children's Act.

A "parent" is defined as including the adoptive parent of a child, but excludes the biological father of a child conceived through the rape of or incest with the child's mother.

Parental rights and responsibilities derive directly from biological parents qualifying as the legal parent of that particular child in questions.

Therefore, a rapist's parental responsibilities and rights, according to the act, become automatically terminated and may be well-justified.

However, it may not be as straightforward. Remember also that at common law, a father may only acquire responsibilities and rights if such a father is married to the child's mother although this has been changed significantly by legislation which provides that a father may acquire responsibilities and rights even though such a father is not married to the child's mother.

But terminating the parent-child relationship is always considered in context of what is in the best interest of the child. Because the act is so vague, we may never know if indeed a convicted rapist acquires parental responsibilities and rights since they are not regarded as a "parent" for purposes of the act, until our courts adjudicate over the matter. It is nonetheless inconceivable that parenthood is measured by biology alone.