The Constitution, Paternity, Rape, and Coerced Intercourse: No Protection Required

Abstract

Non-lawyers are often incredulous when they hear that a man who rapes a woman has, in most states and most circumstances, a credible statutory and constitutionally protected claim to fatherhood. Most lawyers are not surprised, however, because they associate genetics with paternity and assume that due process requires that the fatherhood claim gets robust protection. In this article, I demonstrate that sourcing paternity in genetics is not a constitutional requirement. Second, I argue due process in the case of rape or coerced intercourse is not denied when the man’s claim to fatherhood is protected by minimal procedures. Finally, I argue that women are denied equal protection when more than minimal due process is provided to protect a claim of fatherhood after rape or coercive intercourse.

My article considers two scenarios: one easy and one hard. The easy case is “rape”: the man is a stranger to the woman before the intercourse, he is convicted of rape or other sexual offense, and he never develops a relationship with the child. All but a few states recognize paternity even in these circumstances, although most empower the woman to seek termination or some limitation on parental rights on the basis of the rape or on proof at a high standard of conduct constituting rape. The hard one is the much more common situation where the child’s birth results from the kind of sexual and reproductive coercion that characterizes many abusive intimate relationships and where convictions are even less common than in stranger rapes. In both scenarios, treating the genetic father as having the same parental rights as the birth mother constrains the birth mother’s reproductive and parental autonomy. Rather than enjoying the freedom to decide when to have children and with whom, if anyone, to share parenthood, she is subject to continuing control by a man who is willing to override her decision whenever it suits his will.

Keywords: rape, paternity, coerced intercourse, parental rights, due process, equal protection,