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The Court of Appeals of Indiana reversed an order to terminate an incarcerated man’s parental rights Thursday, ruling that a lower court interpreted the phrase “act of rape” too broadly and didn’t consider whether the man committed an act described in the state’s rape statute.
According to court records, D.H., a man in his mid-20s, had sex with his girlfriend’s two teenage daughters, including S.R., who was 14.
S.R. became pregnant and gave birth to a daughter.
D.H. was charged with two counts of sexual misconduct with a minor, pleaded guilty and was sentenced to 15 years in prison.
Though incarcerated, D.H. filed a pro se paternity action seeking to establish custody, parenting time and child support.
But S.R. didn’t want D.H. involved in her daughter’s life, so she and the child’s court-appointed guardians initiated a separate action seeking to terminate D.H.’s parental rights under Indiana Code § 31-35-3.5-3.
After a hearing, the Hamilton Superior Court granted the petition and terminated D.H.’s rights.
The court found it “clear” that “an act of rape occurred” because “[i]t is well established that a minor cannot consent to sexual intercourse with an adult.”
At no point in the petition, the hearing on the petition or the trial court’s order was there any mention of I.C. 31-9-2-0.9, the statute that expressly limits the scope of the phrase “act of rape.”
D.H. appealed the order, contending that if he had committed an act of rape, the state would have charged him with rape under I.C. 35-42-4-1 rather than charging him with sexual misconduct with a minor under I.C. 35-42-4-9.
The Court of Appeals reversed the termination order and remanded the case to the trial court for a new termination hearing focused on the controlling definition of “act of rape.”
Judge Nancy Vaidik wrote the opinion for the appellate court.
Vaidik noted that if the appellate court were just interpreting the language of the state’s termination statute (Section 31- 35-3.5-3), it would probably agree with the appellees and affirm the termination order.
“The statute says ‘an act of rape’ but doesn’t require a rape conviction and doesn’t incorporate or otherwise reference the rape statute, such as by stating ‘an act of rape (as defined in IC 35-42-4-1).’ As such, we would be inclined to construe the phrase broadly, as the trial court did, to include an adult’s sexual intercourse with a person who is under sixteen and therefore incapable of meaningful consent,” Vaidik wrote.
However, Vaidik wrote, the termination statute doesn’t stand alone.
“Indiana Code section 31-9-2-0.9 limits the phrase ‘act of rape’ to the acts described in the rape statute (and some acts described in the child-molesting statute, which is inapplicable here because S.R. wasn’t under 14),” Vaidik wrote.
Because the trial court found incorrectly that any sexual intercourse between an adult and a person under 16 is an act of rape under the termination statute, it didn’t address whether D.H.’s intercourse with S.R. involved any of the circumstances listed in the rape statute.
Vaidik wrote that, that without such a finding, the appellate court must reverse the termination order and remand the matter to the trial court for a new termination hearing focused on the controlling definition.
The appellate judge also asked the Legislature to revisit the statutory language, noting that not all victims of such crimes who become pregnant can seek relief under the termination statute.
“This allows for some troubling outcomes. For example, a fourteen-year-old girl who is physically forced to have sex with a forty-year-old man can seek termination, but a fourteen-year-old girl who silently endures the sex in paralyzing fear cannot,” Vaidik wrote. “We encourage the legislature to consider expanding the statutes to include all acts of child molesting and sexual misconduct with a minor.”
Judges Cale Bradford and Elaine Brown concurred in D.H. v. A.C., C.C., and S.R., 23A-JT-1369.
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