The Quebec bill aimed at preventing a sexual aggressor from claiming paternity of a child conceived during rape is well received. Its application – among other things, the modalities related to the financial responsibilities of the rapist – however raises certain questions.
Added after the fact to the vast family law reform project, this specific bill stems from the testimony of Océane*, a young woman who became pregnant after being raped by her roommate. The rapist, who then assaulted other women, ended up claiming paternity of Océane’s child.
This story, told in La Presse, touched Simon Jolin-Barrette, Minister of Justice, who decided to modify the law1. It has been the subject of consultations in recent days.
The bill intends to allow a child, when he is the result of a sexual assault, to contest his filiation with the aggressor or to oppose such filiation being established. It also makes the aggressor responsible for helping to meet the needs of the child, by paying compensation to the victim of the sexual assault. It also provides for the possibility for the child to be considered as a first-degree descendant, for inheritance purposes.
In his memoir, Michaël Lessard, who teaches family law at McGill University, points out that the bill raises several questions, including these: how to calculate the needs of the child? How much of the needs should be met by the abuser? How does the victim get the compensation payment? How do you prove rape in a marital context?
Michaël Lessard proposes, among other things, that the Minister of Justice be empowered to determine by regulation the scales for calculating the indemnity. He also suggests making it clear that the abuser is responsible for all of the child’s financial needs.
From the bill, Michaël Lessard understands that we are considering the payment of a lump sum, which would probably be too high, he raises, for the aggressor to be able to pay it all at once. He therefore suggests the establishment of a mechanism similar to source deductions for alimony in order to “create a distance between the victim and the aggressor”.
For its part, the Barreau du Québec observes that the regime of forfeiture of parental authority has been part of the Civil Code of Québec “for many years and [that] the applicable jurisprudential criteria are well established and stable”. It therefore proposes a modification of the mechanism for forfeiture of parental authority “to clarify that it applies to children born of sexual assault”.
The Barreau also suggests that the compensation provided for in the bill be considered as alimony and that the Revenu Québec program therefore be implemented. This would allow “the victim not to have to enforce the judgment on their own”, it is argued.
Welcoming the courage of Océane and the goals of the bill, the Network of assistance centers for victims of criminal acts (CAVAC) nevertheless considers its implementation difficult insofar as it is based on the need to prove that there was a sexual assault, whereas this “occurs in almost all cases in privacy, away from the gaze of witnesses who could corroborate the facts”.