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Rape changed her life – and New Hampshire law

New Hampshire Sunday News

May 13. 2017 8:48PM

The cards and letters started arriving from prison a few years ago. When he got out, he told her, he wanted to see his son: “We’re a family.”

The man writing to her was her rapist.

What followed was a traumatic court battle to terminate the parental rights of the man who had sexually assaulted and impregnated her when she was just 13 years old. She finally prevailed, thanks to the efforts of her pro bono lawyer and support from victim advocates.

Kelly is now 19 years old; her son is a bright, active 5-year-old. (Her last name and the name of her attacker are not being used, to protect her and her child).

She works, takes college courses and home-schools her son with love and patience. “He’s an amazing little boy,” she said in a recent interview, her face lighting up. “He’s super cute.”

“I want him to be a good human being and have that great childhood that I never got to have,” she said.

Kelly’s story helped convince lawmakers to change how parental rights are terminated in cases where a child’s birth is the result of sexual assault.

Currently, the law requires that in such cases, a woman has to prove that terminating those rights is “in the best interests” of her child. But Senate Bill 166, which won final passage last week, shifts the burden of proof to the convicted rapist.

Gov. Chris Sununu plans to sign it, according to a spokesman.

Small change, big impact

The measure, which becomes law Jan. 1, establishes “a rebuttable presumption that termination of the biological father’s parent-child relationship with the child is in the best interest of the child.”

“It’s a fairly small change in the statute, but has a big practical effect for a victim,” explained David Vicinanzo, a Manchester attorney who represented Kelly for free in her case to terminate her rapist’s rights to her child.

“The idea that you would be a victim of a rapist, first conceive a child and then keep the child, and then you have the burden of proving that ... it’s not in the best interest of the child for you to have to co-parent with him... It’s like revisiting (the rape) all over again,” he said.

Kelly’s story

Kelly had just turned 13 when a 19-year-old man who lived nearby dragged her into the bushes and raped her. A couple months later, she found out she was pregnant and turned to the mother of a friend for help.

Kelly’s rapist was arrested for aggravated felonious sexual assault. He pled guilty to a lesser charge of felonious sexual assault and spent 2 1/2 years in prison. Now on probation, he’s a registered sex offender, listed as homeless and living in Manchester.

Kelly made the decision to keep her child, even after her parents tried to convince her to get an abortion, or give the child up for adoption, she said. “I couldn’t imagine knowing I had a kid out there and just living my life like it never existed,” she said.

She took parenting classes, finished her GED and enrolled in online college courses. She makes time to take her son to baseball, gymnastics and rock climbing. “I always try to give him the things I didn’t have growing up,” she said.

Kelly didn’t have a lot of support from her own family. “I’ve been on my own since I was 11,” she said.

She speaks with a maturity and composure beyond her years. “I think everything happens for a reason, and every reason has a purpose, and every purpose has a meaning,” she said.

If she hadn’t had her son, she said, “I definitely would not be on a good path today.”

Challenge from prison

After Kelly started getting threatening letters from her rapist, a mentor at her parenting program who “has been like a second mom” to the teenager, she said, contacted the New Hampshire Coalition Against Domestic and Sexual Violence. They put Kelly in touch with Vicinanzo, a former federal prosecutor who is now with Nixon Peabody in Manchester.

Vicinanzo volunteered to represent Kelly in an effort to terminate her rapist’s parental rights to her son.

At a hearing last September, the biological father didn’t show up. But the ordeal was so traumatic for Kelly that she suffered a seizure in the courtroom and had to be taken to a hospital.

And it wasn’t over. “Five weeks later, I had to go back and do it all over again,” she said.

Again, her assailant didn’t attend the hearing. “It’s like running on a hamster wheel,” Kelly said. “It never ends.”

“Dealing with being a 13-year-old mom and trying to go to school and trying to care for your child and then on top of this, trying to deal with a court case that should have been already over with before it started,” she said, “it’s like making the victim a victim again.”

On Nov. 27, a judge terminated her rapist’s parental rights.

Changing the law

After seeing what Kelly went through, Vicinanzo reached out to people in the Legislature about changing the law; he helped draft the language of Senate Bill 166.

The new law will help women in Kelly’s position, he said. “It’s still not going to be a real easy process to terminate, but it will be a lot easier,” he said.

In his view, the law should even go further: automatically terminating parental rights to a child when someone is convicted of sexually assaulting the birth mother. It’s a long-standing legal principle that a criminal should not benefit from the fruits of his crime, he said.

“I am making the argument that he has no constitutional rights at all to the child on the principle that a wrongdoer should not benefit from their wrongdoing.”

“Fatherhood is a great benefit and it’s not something that should be merely a product of genetics regardless of the fact the child was born of a violent and very illegal act by the biological donor,” he said.

When her 5-year-old son asks about his father, Kelly explains that all families are different. Then, “I tell him he doesn’t have one,” she said.

For now, she’s protecting him from the knowledge that he was conceived through rape. “If he asks when he’s 16, 17, 18, he can hear the truth,” she said.

Vicinanzo told Kelly’s story at hearings on Senate Bill 166. What happened to her, he said, is not an isolated incident; he’s currently representing another young woman in a similar situation.

Amanda Grady Sexton from NHCADSV told lawmakers that abusers often use parental rights as a “negotiating tool” to keep a connection with their victims. “It’s really clear it’s a way to continue to have that power and control over that victim,” she said. “No child should be used in that capacity.”

These days, Kelly is busy with parenting, work and school. She also volunteers for the Big Sister program, and plans to get a master’s degree in social work. “I want to make a difference in someone’s life,” she said.

She credits the support of adults such as her mentor at the parenting program, advocates at the Coalition, and her lawyer Vicinanzo for getting her through the past few years. She said she’s “hopeful for the future,” and proud of the role she played in changing the law for other survivors who come after her.

She does wonder sometimes what her life would be like if she hadn’t gone through what she did. “But when I take two steps back and I look at the whole picture, I’ve made my life a positive, and some people could have made it a negative,” she said. “It’s all about which path you take.”

When she thinks about her little boy, she said, she wouldn’t change anything that happened to her even if she could. “The worst things that have happened to me have had the best outcomes,” she said.

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