NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8159
SPONSOR: Braunstein
 
TITLE OF BILL:
An act to amend the penal law, the domestic relations law and the family
court act, in relation to termination of parental rights in cases of a
child conceived through rape
 
PURPOSE:
To expand the protections afforded to women who conceive a child as a
result of rape.
 
SUMMARY OF LEGISLATION:
SECTION 1. SECTION 130.92 OF THE PENAL LAW IS AMENDED BY ADDING A NEW
SUBDIVISION 4.
THIS TERMINATES THE PARENTAL RIGHTS AND RESPONSIBILITIES OF A PARENT WHO
IS "CONVICTED" OF THE CRIME OF RAPE IN THE FIRST, SECOND, OR THIRD
DEGREE. THIS PROVISION MANDATES THAT THE COURT TERMINATE PARENTAL RIGHTS
IF A CONVICTION OCCURS.
SECTION 2. SUBDIVISION 1 OF SECTION 111-A OF THE DOMESTIC RELATIONS LAW,
AS AMENDED BY CHAPTER 371 OF THE LAWS OF 2013, IS AMENDED.
IF, AFTER A JUDICIAL HEARING, IT IS FOUND BY -CLEAR AND CONVINCING
EVIDENCE," THAT A WOMAN HAS BEEN RAPED IN THE FIRST, SECOND OR THIRD
DEGREE, AND A CHILD WAS CONCEIVED AS RESULT OF THAT RAPE, THE WOMAN DOES
NOT HAVE TO NOTIFY HER ASSAILANT OF HER INTENTION TO GIVE THE CHILD UP
FOR ADOPTION.
SECTION 3. PARAGRAPH (B) OF SUBDIVISION 1-C OF SECTION 240 OF THE DOMES-
TIC RELATIONS LAW, AS AMENDED BY CHAPTER 371 OF THE LAWS OF 2013, IS
AMENDED.
THIS INCLUDES THE PROVISION THAT THERE WILL BE A REBUTTABLE PRESUMPTION
THAT IT IS NOT IN THE BEST INTERESTS OF THE CHILD WHETHER BORN IN OR
OUT-OF-WEDLOCK TO BE PLACED IN THE CUSTODY OF OR TO VISIT-WITH THE
PERSON WHO HAS BEEN CONVICTED OF RAPE WHICH RESULTED IN THE CONCEPTION
OF THAT CHILD.
SECTION 4. SUBDIVISION 5 OF SECTION 240 OF THE DOMESTIC RELATIONS LAW,
AS ADDED BY SECTION 103 OF CHAPTER 398 OF THE LAWS OF 1997, IS RENUM-
BERED SUBDIVISION 6 AND A NEW SUBDIVISION 7 IS ADDED. NO COURT SHALL
AWARD CUSTODY OR VISITATION RIGHTS TO ANY PARENT WHO HAS BEEN CHARGED
WITH VIOLATING SECTION 130.25 (RAPE IN THE THIRD DEGREE), 130.30 (RAPE
IN THE SECOND DEGREE), OR 130.35 (RAPE IN THE FIRST DEGREE) OF THE PENAL
LAW, UNTIL THE CONCLUSION OF ALL PROCEEDINGS ASSOCIATED WITH SUCH CHARG-
ES. IN ADDITION, NEITHER CUSTODY NOR VISITATION SHALL BE AWARDED TO ANY
PARENT WHO IS CONVICTED OF SUCH CHARGES.
SECTION 5. ARTICLE 6 OF THE FAMILY COURT ACT IS AMENDED ADDING A NEW
PART 6.
THIS ESTABLISHES A HEARING PROCESS BY WHICH A VICTIM CAN PROVE BY "CLEAR
AND CONVINCING EVIDENCE" THAT THE RESPONDENT COMMITTED THE CRIME OF RAPE
IN THE FIRST, SECOND, OR THIRD DEGREE AND A CHILD WAS CONCEIVED AS A
RESULT OF SUCH RAPE. AT THE CONCLUSION OF THE HEARING, THE COURT MAY
TERMINATE ALL OF THE PARENTAL RIGHTS AND RESPONSIBILITIES OF THE
RESPONDENT IF IT IS FOUND THAT HE INDEED COMMITTED RAPE AND THE CHILD
WAS CONCEIVED AS A RESULT OF SUCH RAPE.
 
JUSTIFICATION:
New York State, under certain circumstances, gives a rapist who fathered
a child the legal right to custody and/or visitation. It is impossible
to imagine the anguish a victim endures when she is forced to not only
interact with the assailant, but actually share parental responsibil-
ities. Sadly, New York is one of a limited number of states where the
rapist has this right. In March of 2010, Shauna Prewitt, a rape survivor
and law student at Georgetown Law School, published a scholarly article
• examining the legal protections afforded women. who become mothers as
a result of rape. The article exposed a legal system that permitted the
rapist custody and visitation rights regarding the child born as a
result of rape.
Currently, a total of 33 states have enacted statutes that either termi-
nate parental rights or eliminate the requirement that the father be
notified of.an adoption proceeding when a child has been conceived as a
result of rape. This measure uses the concept of "clear and convincing
evidence" as the standard for terminating a rapist's custody claims.
Unfortunately, fewer than 5ks of rape cases are ever brought to trial
and even when they are, many defendants are allowed to plead guilty to a
lesser offense. Therefore, this legislation looks to establish a hearing
process that makes "clear and convincing evidence" sufficient grouhds
for the denial of parental or custodial rights.
This legislation would also protect women who choose to put a child
conceived through rape up for adoption. Current New York State Law
requires that unless there is a conviction of rape in the first degree,
a woman must notify the father (rapist) of the decision to put the child
for adoption. This legislation expands the conviction to include rape in
the second and third degree and adds "clear and convincing evidence" at
a hearing to the statute. Accordingly, this proposed legislation seeks
to protect victims of rape and begin their journey toward recovery
should they choose to put the child up for adoption without fearing
retaliation from the perpetrator.
If someone is convicted of rape, they should have no contact with the
child. There have been cases where courts have determined that terminat-
ing parental rights is not in the best interest of the child because the
rapist has established a relationship with the child as a result of the
lengthy interval between arrest and conviction.
To allow a rapist to establish a parental presence in the life of a
child is unacceptable and can be traumatic to-both the mother and child.
Perpetrators can also use the interim between arrest and conviction to
intimidate the mother into dropping the charges, often using the custody
of the child as leverage. Therefore, this legislation proposes that no
custody or visitation rights be granted to anyone charged with rape
until the conclusion of the proceedings.
Establishing a process by which a woman can petition the court to
conduct a hearing protects the woman from a long, drawn out legal
proceeding. This hearing process also protects the accused by setting
"clear and convincing evidence" as the standard for denying parental
rights and leaving the decision to the discretion of the court. Lastly,
in 1982, the Supreme Court established, in Santosky v Kramer (455 U.S.
745) that "clear and convincing evidence" does not impede due process in
restricting or terminating parental rights.
 
LEGISLATIVE HISTORY:
2015-2016: A.6997-A/S.3215-A - Referred to Judiciary.
2017-2018: A.4372/S.3515 - Referred to Judiciary.
2019-2020: A.534/S.2948 - Referred to Judiciary.
2021-2022: A.539/S.7648 - Referred to Codes
 
FISCAL IMPLICATIONS:
None to the State.
 
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
8159
2023-2024 Regular Sessions
IN ASSEMBLY
October 18, 2023
___________
Introduced by M. of A. BRAUNSTEIN -- read once and referred to the
Committee on Judiciary
AN ACT to amend the penal law, the domestic relations law and the family
court act, in relation to termination of parental rights in cases of a
child conceived through rape
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 130.92 of the penal law is amended by adding a new
2 subdivision 4 to read as follows:
3 4. The parental rights and responsibilities with respect to a child of
4 a parent convicted of the crime of rape in the first degree as defined
5 in section 130.35 of this article, rape in the second degree as defined
6 in section 130.30 of this article, or rape in the third degree as
7 defined in section 130.25 of this article, that resulted in the
8 conception of such child shall be terminated in accordance with article
9 six of the family court act.
10 § 2. Subdivision 1 of section 111-a of the domestic relations law, as
11 amended by chapter 828 of the laws of 2022, is amended to read as
12 follows:
13 1. Notwithstanding any inconsistent provisions of this or any other
14 law, and in addition to the notice requirements of any law pertaining to
15 persons other than those specified in subdivision two of this section,
16 notice as provided herein shall be given to the persons specified in
17 subdivision two of this section of any adoption proceeding initiated
18 pursuant to this article or of any proceeding initiated pursuant to
19 section one hundred fifteen-b of this article relating to the revocation
20 of an adoption consent, when such proceeding involves a child born out-
21 of-wedlock provided, however, that such notice shall not be required to
22 be given: (a) in the case of the adoption of a child transferred to the
23 custody and guardianship of an authorized agency, foster parent, or
24 relative pursuant to section three hundred eighty-four-b of the social
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13354-01-3
A. 8159 2
1 services law or a child transferred to the custody and guardianship of
2 an authorized agency pursuant to section three hundred eighty-three-c of
3 the social services law; or (b) to any person who has previously
4 received notice of any proceeding pursuant to section one hundred
5 fifteen-b of this article. In addition to such other requirements as may
6 be applicable to the petition in any proceeding in which notice must be
7 given pursuant to this section, the petition shall set forth the names
8 and last known addresses of all persons required to be given notice of
9 the proceeding, pursuant to this section, and there shall be shown by
10 the petition or by affidavit or other proof satisfactory to the court
11 that there are no persons other than those set forth in the petition who
12 are entitled to notice. For the purpose of determining persons entitled
13 to notice of adoption proceedings initiated pursuant to this article,
14 persons specified in subdivision two of this section shall not include
15 any person who has been convicted of one or more of the following sexual
16 offenses in this state or convicted of one or more offenses in another
17 jurisdiction which, if committed in this state, would constitute one or
18 more of the following offenses, where it is established after a hearing,
19 by clear and convincing evidence, that such person committed any such
20 offense or when the child who is the subject of the proceeding was
21 conceived as a result: (A) rape in the first [or], second or third
22 degree; (B) course of sexual conduct against a child in the first
23 degree; (C) predatory sexual assault; or (D) predatory sexual assault
24 against a child.
25 § 3. Paragraph (b) of subdivision 1-c of section 240 of the domestic
26 relations law, as amended by chapter 182 of the laws of 2019, is amended
27 to read as follows:
28 (b) Notwithstanding any other provision of this chapter to the contra-
29 ry, there shall be a rebuttable presumption that it is not in the best
30 interests of the child, whether born in or out-of-wedlock, to:
31 (A) be placed in the custody of or to visit with a person who has been
32 convicted of one or more of the following sexual offenses in this state
33 or convicted of one or more offenses in another jurisdiction which, if
34 committed in this state, would constitute one or more of the following
35 offenses, when a child who is the subject of the proceeding was
36 conceived as a result:
37 (1) rape in the first or second degree;
38 (2) course of sexual conduct against a child in the first degree;
39 (3) predatory sexual assault; or
40 (4) predatory sexual assault against a child; or
41 (B) be placed in the custody of or have unsupervised visits with a
42 person who has been convicted of a felony sex offense, as defined in
43 section 70.80 of the penal law, or convicted of an offense in another
44 jurisdiction which, if committed in this state, would constitute such a
45 felony sex offense, where the victim of such offense was the child who
46 is the subject of the proceeding.
47 § 4. Subdivision 5 of section 240 of the domestic relations law, as
48 added by section 103 of chapter 398 of the laws of 1997, is renumbered
49 subdivision 6 and a new subdivision 7 is added to read as follows:
50 7. Notwithstanding any other provision of any law to the contrary, no
51 court shall award custody to a parent who has been charged with violat-
52 ing section 130.25 (rape in the third degree), 130.30 (rape in the
53 second degree), or 130.35 (rape in the first degree) of the penal law,
54 where the child that such parent seeks custody or visitation of was
55 conceived as a result of such rape, until the conclusion of all
56 proceedings associated with such charges. Neither custody nor visitation
A. 8159 3
1 shall be awarded to a parent who has been convicted of violating section
2 130.25 (rape in the third degree), 130.30 (rape in the second degree),
3 or 130.35 (rape in the first degree) of the penal law.
4 § 5. Article 6 of the family court act is amended by adding a new part
5 6 to read as follows:
6 PART 6
7 TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION BY
8 RAPE
9 Section 681. Termination of parental rights upon a finding of conception
10 by rape.
11 682. Hearing.
12 § 681. Termination of parental rights upon a finding of conception by
13 rape. 1. A proceeding for termination of parental rights on the grounds
14 of a finding of conception by rape is originated by a petition alleging
15 that the respondent committed the crime of rape in the first degree as
16 defined in section 130.35, rape in the second degree as defined in
17 section 130.30, or rape in the third degree as defined in section 130.25
18 of the penal law, and that the child was conceived as a result of such
19 rape. Except as otherwise provided in this part, the provisions of part
20 one of this article shall apply to all proceedings.
21 2. At the conclusion of the hearing under section six hundred eighty-
22 two of this part the court may terminate all of the parental rights and
23 responsibilities of the respondent if the respondent is found by clear
24 and convincing evidence to have committed rape in the first degree as
25 defined in section 130.35, rape in the second degree as defined in
26 section 130.30 or rape in the third degree as defined in section 130.25
27 of the penal law, and the child was conceived as a result of such act.
28 An order of disposition shall be made, pursuant to this section, solely
29 on the basis of the best interests of the child, and there shall be no
30 presumption that such interests will be promoted by any particular
31 disposition.
32 § 682. Hearing. The court shall hold a hearing under this part to
33 determine whether the allegations in the petition that the respondent
34 committed rape in the first degree as defined in section 130.35, rape in
35 the second degree as defined in section 130.30 or rape in the third
36 degree as defined in section 130.25 of the penal law, and that the child
37 was conceived as a result of such act are supported by clear and
38 convincing proof. Only competent, material and relevant evidence may be
39 admitted in a hearing pursuant to this section. A conviction of the
40 respondent on the charges alleged shall not be required for a finding
41 under this section.
42 § 6. This act shall take effect immediately.