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Marital Rape and Joint Custody of the Child Essay


Injustice in criminal justice systems is a rather common situation that cannot be eradicated just yet. There are numerous reasons that impact judges’ outlooks and negatively affect the possibility of positive outcomes. Therefore, there may be a situation where the victim will suffer even more when going to the court and trying to protect their views and freedoms. The current paper will concentrate on this issue as the author is going to elaborate on the case where a man allegedly raped his wife and got away with it while getting joint custody of their child.

The whole situation revolves around the county judge of Sanilac who granted parental rights to the man who raped the mother of an 8-year-old. Interestingly, the mother of the child was a victim of sexual assault at the age of 12 but her offenders were never properly charged. The woman tried to seek child support but the judge took another route and gave parental rights to the offender. It is a shocking decision, especially knowing that the man never asked for these rights. Currently, these two individuals share a joint custody of the child even though the child’s mother never gave her agreement to sharing custody.

From one of the perspectives, the article is a direct representation of the people that were affected by crimes in a negative way (directly). On the other hand, there is much broader impact on society that can be triggered by decisions like the one that will be analyzed within the framework of the current paper. From another perspective, one can perceive this case as a direct aftermath of sexual assault where every party involved in the dealings can be affected by the outcomes. As it can be seen from the situation at hand, the offender was never willing to have custody of the child but the court’s decision obliged him to take it. This, accordingly, led to a more unpleasant situation that was encountered by the victim. She never showed any sign of wanting to cooperate with the criminal and raise the child together but the court’s decision seemed not to take her viewpoint into consideration. It is also interesting that it was the victim who had to accommodate and move to the offender’s place so as to comply with the court’s decision.

This kind of situation definitely impacts society. If we take a closer look at it, we will see that the possibility of a rapist having custody of a child may open new perspectives for other criminals as well. Accordingly, the society will have to ask itself if it is ready to comply with a situation where, for example, in line with the court’s decision, bank robbers will receive the money they intended to steal. In some sense, the court’s decision to give joint custody to a rapist can be perceived as an “ok” signal for other criminals and the researcher is keen on investigating the possibilities of proving that crime does (but should not) repay and that some criminals may remain unpunished (while actually, they should be).

Criminology Theories

In order to be able to come to a reasonable conclusion at the end of the paper and evaluate the situation from a number of different perspective, the researcher will investigate the root of the court’s decision in terms of three criminological theories – general strain, rational choice, and feminist-based. The rationale for this is the complex structure of the issue that revolves around rape, custody, and county judge’s ethical positioning. To start with, the researcher will share the weakest arguments and then add more strength gradually.

The first theory that can be aligned with the current case is general strain theory. Accordingly, this means that the criminal could have suffered from stressors and sexually abused the victim so as to try to cope with his stress (Tasca et al. 1170). The situation at hand shows that he was able to escape his alleged strains successfully. It is not perceivable whether he had a desperate need for sexual intercourse at the time when he committed rape, but it is evident that his main objective was not to acquire joint child custody with the victim. Even if the crime made him feel better, the outcomes of the situation turned out to be relatively negative for both of the parties involved in the case. Accordingly, the researcher can conclude that general strain theory can be applied to the current case because the criminal’s alleged strains led him to raping the victim.

However, we should always make sure that the characteristics of strains that can lead to crimes are also included in the general strain theory. In terms of the current case, there are several conditions that could have provoked the alleged criminal to rape the victim – (a) he saw injustice being displayed by the victim, (b) the latter highly impacted him personally, and (c) he was exposed to a low level of social control that created less pressure on him than on his peers, for example (Hayes et al. 213). Even though the majority of rapes are weakly related to the general strain theory, the failure to recognize the impact of strains on the crime occurrence rate may have dreadful consequences. Despite the victim’s exposure to stressful life events, criminal justice system should pay more attention to criminological theories that can be seen as the grounds for the future crimes. Knowing that rape receives almost no attention in criminological literature in terms of finding ways to protect the victim, it is important to continue fighting injustice and discrimination.

Another theory that can fit the current court case decision is the rational choice theory. The only difference consists in the fact that the judge that granted joint child custody to the rapist may have used it wrongfully. According to the theory, a crime will be committed if the person sees that they will be able to get the reward they want while being punished (Powell 273). Yet, it in the case of the journal article at hand, the rapist was not interested in any benefits (such as joint child custody). This raises the question of whether it is reasonable to base certain court decisions regarding rape on rational choice theory. It is evident that for the criminal, the pain of court punishment (there was none) did not outweigh the potential gain (knowing that the criminal did not want to acquire joint child custody, this can be perceived as more of a loss than a gain).

This leads the researcher to the conclusion that when it comes to arguable court decisions regarding rape cases, there is little chance that rational choice theory will be applied correctly and protect the victim from being exposed to negative consequences. While rational choice theory is recurrently linked to the concepts of general and specific deterrence, there is no way to mitigate the number of rapes by means of trying to see what kind of potential gain the rapist was looking for while committing the crime (Smart 101). Also, similar limitations can be found in routine activities theory and lifestyle theory. This motivated the researcher to find a criminological theory that would best reflect the views that can be utilized to protect females from being victimized and underrepresented in court.

This theory relates to feminist-based criminology and bears resemblances to numerous topics that are not generally addressed by other criminological theories. The key strength of this theory, when applied to the case at hand, consists in the fact that it provides the criminal justice system representatives with a possibility to examine official data with an insight into female experiences and draw parallels between the crime that was committed and probable female’s role in it (Siegel 63). This leads to the idea that quite a few court decisions can be “colored” by gender and feminist criminological theory is intended to equalize the situation and provide females with more rights. There have been numerous interviews that helped the researchers in the area to study the relationship between crimes and female victimization. When combined, both qualitative and quantitative data regarding a female’s involvement in the crime may critically affect court’s decision.

The exploration of these factors may be necessary to limit the occurrence of wrongful decisions that bring injustice and suffering. One of the most important aspects of feminist criminological theory is that is does not go in line with the mainstream criminology fully. Accordingly, from the point of this theory, the offender merely took his male-dominant role for granted and applied his physical force toward the victim. This led the researcher to the idea that when it comes to females being raped by men, there is no place for a value-free stance that is mostly preferred by the authors of other criminological theories. In order to understand the basics of the female view of the world, judges should not detach themselves from the subject matter when it comes to rape-related crimes (McKimmie et al. 2282). There is one suggestion that can be made by the author of this research paper – feminist criminological theory should motivate the criminal justice system to pay more attention to social change and work toward transforming policies, criminal laws, and detention practices.

Proposed Policy

Even though it is shocking and unbelievable, the ultimate court decision gave parental rights to the offender. This obliged the victim to cooperate with the person that sexually assaulted them. Arguably, there is nothing less pleasant than raising a child with the person that offended you. Of course, it is also interesting that both parties are not pleased with the outcomes of the court case but they have to cope with it. The victim’s lawyer is currently trying to seek protection under the Rape Survivor Child Custody Act but there is a little chance to correct the alleged court’s mistake in terms of virtually supporting the criminal. One of the decisions that can be seen to help the victim here is to apply for more funding and build up a position that will permit the victim to terminate the offender’s parental rights. Evidently, there will be another hearing on the matter but there is a need to revise the existing policy and oblige the victims of rape crimes to be able to address the issue in court immediately. For instance, the victims should be free to come to any given law enforcement agency and to take a record of bodily injuries incurred as a result of battery. Accordingly, a court hearing should never be delayed when it comes to rape cases and the latter should be addressed with all seriousness.

While no one cannot predict the next victim of rape, the existing criminal justice system can become more flexible in terms of providing support to the victims that cannot stand up for themselves just yet (for example, if they are 12-year-old like the victim was in the case at hand). The government should focus on incorrect court decisions that may lead to the decline in societal satisfaction and interpersonal issues that cannot be resolved locally. This idea can be framed by a criminal justice policy that will include all the aspects discussed above and an obligation to conduct all the necessary stages of medical expertise that can help law enforcement agencies to prosecute criminals and provide maximum protection to the victims. At the same time, the dual nature of this issue does not allow any given court to take the victim’s side by default. This is why more criminological theories should be reviewed when amending the existing policy and making decisions in court that can impact one’s future in a major way.


The author of this article believes that the issue at hand can be interesting not only to the potential victims of rape but to every member of our society because it is associated with a number of criminological implications that can negatively affect the quality of human life. The impact of such issues on society is inconceivable due to the fact we encounter more and more arguable court decisions every day. The court’s decision to give child custody to a rapist is absolutely shocking and outrageous but there should be ways to fight this kind of irrationality. Knowing that the existing society is male-dominated, we have to make sure that females have rights and freedoms identical to the male ones. In the nearest future, every country around the world should ensure that their females have proper protection and will not suffer from wrongful court decisions.

When considering such situations, there is nothing left but to project such court decisions on yourself – in that case, it becomes scary, and it is extremely important for mankind to find a solution that will equalize men and women in terms of rights so that the latter would not suffer from judicial decisions capable of negatively affecting the life of each party involved in the problem. An in-depth analysis of the criminological theories proposed by the author of this paper led them to the conclusion that there are several perspectives that should be addressed at all times when dealing with rape cases. Despite numerous auxiliary factors, full medical and mental check-ups can be used in association with the core concepts of the feminist-based criminological theory so as to provide females with the maximum level of protection – only in cases where the guilt of the attacker was absolutely proven and confirmed by factual evidence. Criminal justice systems are widely known to delay hearings while waiting for hard evidence and that can be seen as one of the key limitations that yet have to be addressed by the researchers in the area of criminal justice and rape victimology. Other than that, courts should never side with criminals and make decisions that are illogical, immoral, and unethical.

Works Cited

Hayes, Rebecca et al. “Victim Blaming Others: Rape Myth Acceptance and the Just World Belief.” Feminist Criminology, vol. 8, no. 3, 2013, pp. 202-220.

McKimmie, Blake et al. “What Counts as Rape? The Effect of Offense Prototypes, Victim Stereotypes, and Participant Gender on How the Complainant and Defendant are Perceived.” Journal of Interpersonal Violence, vol. 29, no. 12, 2014, pp. 2273-2303.

Powell, Anastasia. “Seeking Rape Justice: Formal and Informal Responses to Sexual Violence through Technosocial Counter-publics.” Theoretical Criminology, vol. 19, no. 4, 2015, pp. 571-588.

Siegel, Larry J. Criminology: The Core. Cengage Learning, 2018.

Smart, Carol. Women, Crime and Criminology: A Feminist Critique. Routledge, 2013.

Tasca, Melinda, et al. “Police Decision Making in Sexual Assault Cases: Predictors of Suspect Identification and Arrest.” Journal of Interpersonal Violence, vol. 28, no. 6, 2013, pp. 1157-1177.

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"Marital Rape and Joint Custody of the Child." IvyPanda, 15 Sept. 2020, ivypanda.com/essays/marital-rape-and-joint-custody-of-the-child/.

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IvyPanda. 2020. "Marital Rape and Joint Custody of the Child." September 15, 2020. https://ivypanda.com/essays/marital-rape-and-joint-custody-of-the-child/.


IvyPanda. (2020) 'Marital Rape and Joint Custody of the Child'. 15 September.

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