FOX UNDERCOVER -- A young woman fighting to stop the man who raped her from getting visitation rights with the child born after the crime is taking her battle to federal court.
"A criminal judge has to treat a criminal rape case as a felony, not a family," said Wendy Murphy, who is representing the woman.
Murphy has argued so far unsuccessfully in state court that the criminal sentence handed down to the father, Jamie Melendez, should be modified because it opened the door for Melendez' asking for visitation rights.
Melendez was 20-years-old when he raped the girl, a 14-year-old eighth grader whom he knew from their church. He pleaded guilty in 2011 to four counts of statutory rape.
The judge sentenced him to 16 years of probation and sent him to Family Court, where he was ordered to pay child support. Once he was in Family Court, Melendez then requested visitation rights.
"When you get convicted of a crime, you are sometimes ordered to pay restitution for the consequences of your actions. Well if your rape creates a baby, you should pay for the upkeep of that child, but let's call it restitution in the criminal case instead of child support in the Family Court," Murphy said.
"Do you think he should have visitation rights?" FOX Undercover reporter Mike Beaudet asked the victim last year.
"No," the woman replied. "He hasn't cared up until now. Why should he now?"
The victim told FOX Undercover that she decided to keep the baby because of her Christian faith.
"The way I thought of it, this is a baby, an innocent person that didn't do anything wrong. Why should I take away that life?" she said.
The woman is now 19. Her daughter is three.
The state's highest court has already rejected the argument that the criminal sentence should be revised to take the case out of Family Court. So Murphy filed a lawsuit in U.S. District Court this month.
"Thirty-two thousand to 35,000 babies are born every year from rape. No judge has ever done this before. So we're going to federal court because we want a judge there to rule that this is not legal, this is not permissible. You can't do this if you're a state criminal judge. You can't sentence, in a sense, the rape victim to 16 years' incarceration, in effect, with her attacker in Family Court," Murphy said.
A hearing on whether Melendez can get visitation rights is scheduled for next month, but the victim's attorney is trying to put that hearing on hold while the federal case is pending. The Massachusetts Attorney General's office, which would have to represent the state in federal court, declined to comment.
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