The Kickham Comment - Boston Criminal Attorney Blog
A rape victim who was impregnated as a result of a rape that took place when she was 14 is fighting in court to keep her convicted rapist from being awarded visitation rights to the daughter she gave birth to nine months after the assault.
The victim was in 8th grade when an individual named Jamie Melendez had sexual intercourse with her several times in 2009. At the time of these sexual assaults, Melendez was 19 and met the victim through a friend of her older sister’s. The victim testified that Melendez visited her at her home several times when he knew she was alone, and testified that Melendez pressured her into intercourse with him on four separate occasions. Violence did not appear to be present in any of these rapes – they were statutory rapes, which take place even if the victim consented, any time an alleged victim is under a certain age (16 in Massachusetts.) The victim became pregnant following one of the attacks and gave birth to a girl in 2010. Melendez had been arrested in 2009 and initially denied paternity, but DNA evidence proved him to be the father. Eventually Melendez pled guilty to charges of statutory rape in 2011 – however, he avoided jail as the trial judge ordered a lengthy probation sentence instead – 16 years- reasoning that allowing Melendez to work and hold down a job would enable him to pay the victim child support. After Melendez’s 2011 sentencing, the case was transferred to the Massachusetts Probate and Family court – which the victim now argues should never have been done. As a Massachusetts criminal defense attorney, I think she’s probably right.
Melendez, now 27 years old, had been paying the mother, who is now 22 years old, $110 a week in child support. Four years ago, in 2012, Melendez applied for visitation rights to the victim’s daughter, 2012 claiming he “deserves” the “right” to see her, since he was paying child support. A judge hearing the matter rejected that request as being as essentially a threat to get the victim to cease her rights to receive child support from him, or face continued demands by him for visitation rights. It will likely come as a shock to most people, but in Massachusetts, a convicted rapist can be awarded parental visitation rights to a child that he fathered during as the result of a rape, if a judge rules that it is in the child’s “best interest.” In fact, Thirty-one states and the District of Columbia allow convicted rapists the right to petition a court for visitation rights to a child they fathered from a rape. Some states don’t even require the convict to petition a court for visitation – they have no laws at all preventing a convicted rapist from having access to a child conceived as the result of a rape. Those states are; Alabama, Maryland, Minnesota, Mississippi, New Mexico, North Dakota, and Wyoming.
As a Wrentham Massachusetts sex charges lawyer, I’ve seen rape convicts use this tactic previously. Convicted rapists will sometimes their right to seek visitation privileges to avoid paying child support, threatening the rape victim/mother of the child that they will seek visitation unless the mother agrees to waive the right to child support. In theory, Melendez can return to court seeking visitation rights until the child involved is 18 years of age.
I’m a Massachusetts rape defense attorney – it’s my professional, ethical responsibility to advocate for the legal rights of criminal defendants. And I do so very aggressively. So people have asked me, what do I think about this case?
The answer is I disagree with it, strongly. It’s unjust, unfair to the victim, and in fact, cruel. It’s important to remember: Any Massachusetts sex offense lawyer represents a defendant – by definition, that is someone who has not yet been convicted – only charged. In this case, Melendez was: A) Convicted of statutory rape; B) Based upon conclusive DNA evidence proving he conceived this child, which was followed by: C) A voluntary confession, to hopefully avoid a jail sentence – which he did. To allow him to now use his legal “rights” as a cudgel against the mother here, by all apparent indications solely to be relieved of paying child support for several more years – would not at all serve the interests of justice. This is not an innocent man. Further, while the rapes that occurred with this victim were not violent but rather the product of coercion, allowing Melendez to seek relief from the original court-ordered child support, would continue to expose both the victim and potentially her child to unacceptable psychological trauma.
The victim has already been forced to see Melendez in family court several times as part of this process. The victim’s attorney tried to persuade the Massachusetts Court of Appeals to terminate Melendez’ legal options here, but the court would not do so. The case now heads to the Massachusetts Supreme Judicial Court for final ruling. Hopefully, the SJC will see reason here. The courts should be a place of justice – not carnivals and charades abused by convicts for economic and financial gain.