• Father seeks partial custody of baby conceived in assault
     | April 09,2006

    MONTPELIER – A child custody battle between a teenage girl and the man who sexually assaulted her could establish a precedent for how Vermont courts resolve parental disputes over children conceived as the result of sexual crimes.

    The case centers on a baby boy born to a then-16-year-old woman in November 2004. Two months after the birth, the 37-year-old biological father pleaded guilty to sexual assault on a minor. Robert LeClair's victim was 15 at the time of conception, under the age of consent in Vermont. He did not serve jail time.

    Even as LeClair admitted culpability in the assault, he was pursuing partial custody of the child. In August 2005, a Windsor County family court judge denied the New Hampshire resident any custodial rights, and LeClair is challenging that ruling in the Vermont Supreme Court.

    "The whole issue goes to, 'What rights does someone convicted of a crime have to a child conceived as a result of that crime?'" says Michael Blair, the Barre lawyer representing the mother in Supreme Court. "It's an important case and because nothing like it has gone before (the Vermont Supreme Court), there's no real clear picture of the answer."

    Courts in other states have taken up the issue and resulting precedent is mixed. A 1981 family court ruling in New York allowed a father parentage rights in a case where a child was conceived in a statutory rape. That case, however, involved a victim and assailant who were close in age.

    "When the age difference wasn't so great, the court looked at it as more of a technical violation of law," Blair says. "The New York court actually gave a defendant in a criminal case some parental rights."

    But the more appropriate legal comparison, Blair says in court filings, is a 1996 case before the federal Seventh Circuit Court of Appeals in which the court denied a biological father custody of a child born to a girl 27 years his junior.

    "It is not the brute biological fact of parentage, but the existence of an actual or potential relationship that society recognizes as worthy of respect and parentage," that accords fathers parental rights, the court said. Because of the 27-year age difference, and the fact that the conception occurred because of a statutory rape, the court ruled the father's role in the life of the baby was not worthy of protection by the court.

    LeClair, who is representing himself and could not be reached by phone, admits the relationship was inappropriate, but argues that because the rape was statutory, and not "forcible," the Supreme Court should overturn the Windsor ruling. He says in court papers that the "best interests" of the child should outweigh the criminal element of the conception and that his role in the now 16-month-old baby's life will be of emotional as well as financial benefit.

    "I care deeply about the mother and child," LeClair writes. "… Loving her was no excuse for taking this action instead of waiting for her to be old enough. … There was no force or threats just bad judgment. I know I can't change what's happened but I can change me through treatment and I can be a good father to my son and a responsible person … and take an active role in my child's future."

    Family Court judge Harold Eaton rejected LeClair's argument in his six-page opinion on the plaintiff's request for custody.

    "It is one thing to confer the duties and obligations of parenthood upon persons who knowingly engage in the risk of fatherhood with adult women who consent to such activity," Eaton wrote. "It is quite another to bestow them upon persons who violate a woman's right to the sanctity of her own body or those who sexually prey upon children lacking the legal, emotional and developmental maturity to consent to sexual activity."

    Whether the mother wanted to become pregnant, as LeClair claims, is irrelevant, according to Eaton.

    "Our society criminalizes statutory rape for good reason," Eaton wrote. "This court does not endorse the establishment of paternal benefits as a result of conception resulting from a criminal sexual assault, at least where the mother opposes it."

    Blair makes similar arguments in briefs filed with the Vermont Supreme Court. He calls LeClair's actions an "abhorrent … exploitation of innocence that deserves no reward or consideration," Blair writes.

    "It is not in (the victim's) best interest to have the Appellant in her life, much less, have him in her baby's life," Blair says.

    The Supreme Court is expected to grant LeClair his day in court soon.

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