HOUSE DOCKET, NO. 4590        FILED ON: 3/3/2016

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 4265

The Commonwealth of Massachusetts

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PRESENTED BY:

Michelle M. DuBois and Carmine L. Gentile

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to protect victims of rape and children conceived during the commission of said offense.

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PETITION OF:

HOUSE DOCKET, NO. 4590        FILED ON: 3/3/2016

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 4265

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act to protect victims of rape and children conceived during the commission of said offense.

Whereas, The deferred operation of this act would tend to defeat its purpose, which is to protect rape victims and their children and to ensure that convicted rapists cannot use the court system to further assault said rape victim, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public safety.
 

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1.  Subsection (a) of section 3 of chapter 209C of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out the last sentence.

SECTION 2.  The first paragraph of subsection (e) of section 10 of said chapter 209C, as so appearing, is hereby amended by striking out the last sentence.

SECTION 3. Said chapter 209C is hereby amended by inserting after section 10 the following section:-

Section 10A. (a) (1) Upon or after the adjudication of an assault or rape under section 13B to 13B 3/4, inclusive, 13F, 13H, or 22 to 23B, inclusive, of chapter 265, or section 2, 3, 4 or 17 of chapter 272, the court that maintained jurisdiction for the adjudication where a defendant was convicted of, was granted a continuance without a finding for or otherwise pleaded guilty to said offense shall hold a hearing to determine if a child was conceived during the commission of said offense.

In these matters when the court finds upon a showing by a preponderance of evidence that pregnancy was caused by unwanted sexual conduct, no parental rights can be presumed, adjudicated or established, nor can the probate and family court assert jurisdiction to determine the rights or interests of any person with regard to said pregnancy or child born from said pregnancy.

(2) If the court finds upon a showing by a preponderance of evidence that a child was conceived during the commission of said offense and the defendant is the biological source of the child’s conception: (1) a rebuttable presumption shall be established that the defendant is unfit and it is not in the best interests of the child to be placed in sole custody, shared legal custody, or shared physical custody with the defendant; provided that, this presumption may be overcome with regard to shared legal custody or shared physical custody but not sole custody by clear and convincing evidence substantiated by the Judge’s written finding of facts that the defendant is a fit parent and as such shared legal custody or shared physical custody is by the Judge’s written finding of facts in the best interests of the child and the other parent of the child conceived during the commission of that offense consents to such shared legal custody or shared physical custody; (2) the court may make a new custody order as to the legal and physical custodial rights of the defendant; and (3) the court may modify any previous award granted to the defendant for sole custody, shared legal custody or shared physical custody of the child.  

(b) Notwithstanding section 10, no court shall make an order providing visitation rights to a  person who is the biological source of a child’s conception if that person was convicted of, was granted a continuance without a finding for or otherwise pleaded guilty to an assault or rape under section 13B to 13B 3/4, inclusive, 13F, 13H, or 22 to 23B, inclusive, of chapter 265, or section 2, 3, 4 or 17 of chapter 272 and is seeking to obtain visitation with the child who was conceived during the commission of that offense, unless the judge makes an independent determination substantiated by the Judge’s written finding of facts that visitation is in the best interests of the child and the other parent of the child conceived during the commission of that offense consents to such visitation.

(c) Notwithstanding section 3 of chapter 215, the court that maintained jurisdiction for the proceeding in which the defendant was convicted of, was granted a continuance without a finding for or otherwise pleaded guilty to section 13B to 13B 3/4, inclusive, 13F, 13H, or 22 to 23B, inclusive, of chapter 265, or section 2, 3, 4 or 17 of chapter 272 shall possess exclusive jurisdiction over: (i) a proceeding pursuant to this section or any modification of an order made hereunder; (ii) any action or order related to the defendant’s physical and legal custodial of the child conceived during the commission of the offense, regardless of when any such action or order was filed or adjudicated; and (iii) an action to require the convicted defendant to pay monetary restitution for the consequences of conception during unwanted sexual conduct (pursuant to MGL Ch 119A) and any modification of an order or judgment resulting from such support action.