Abstract
The Wisconsin statute that regulates termination of parental rights (TPR) as a result of sexual assault is untenable and in need of revision. The current statute is far too stringent to be practically implemented, which is especially true in involuntary TPR proceedings.
This Comment seeks to explain why Wisconsin’s current statute for TPR as a result of sexual assault is flawed. First, this Comment gives background by detailing rape statistics in the United States to explain why the possibility for TPR exists when a conception results from a sexual assault. Second, Wisconsin adopts a position that is at odds with constitutional and state standards regarding TPR law by requiring what is essentially a criminal law “beyond a reasonable doubt” standard for a finding of conception by rape. This standard contrasts with the constitutionally required “preponderance of the evidence” standard that is applied in other TPR cases. Third, while the due process considerations in TPR cases are high because the state is intervening in the parent-child relationship, the current status of these due process considerations would not be a barrier to redefining the statute allowing TPR as a result of sexual assault.
This Comment suggests four small, yet profound, changes to this statute. First, guilty and no contest pleas should be permitted to prove conception as a result of sexual assault. Second, a mother’s ability to be heard during the dispositional phase on her desire for the termination of the father’s rights should be encoded in the statute. Third, the standard for the TPR statute should be a “clear and convincing evidence” standard. Fourth, an example of “other evidence” as to previous sexual assaults of the mother should be added to the statute.
Repository Citation
Gabriella Humblet,
An Impossible Burden: A Comment Supporting Revision of Wisconsin’s Parenthood as a Result of Sexual Assault Statute,
108 Marq. L. Rev. 313
(2024).
Available at: https://scholarship.law.marquette.edu/mulr/vol108/iss1/8
