On Those Supposed “Rape Exceptions”

Trigger Warning

Last Sunday morning when I was in South Dakota we received the Argus Leader newspaper, which contained this article detailing the proposed abortion ban and laying out the “pros” and “cons” of the bill based on what each side has been saying. It was way too much for my blood pressure to deal with at 9AM after two very exhausting days, but I would like to address some of those “pro” arguments now — namely, those revolving around the rape “exceptions.”

I discussed the content of those so-called rape exceptions in Measure 11 and what they entail in depth in this post. They are absolutely cruel to women, which was the primary argument I made at the time. What I didn’t necessarily see coming — and hey, sometimes I’m short-sighted — was that just as anti-choicers have tried to reframe revoking a woman’s reproductive rights as empowering to her, they would attempt to reframe revoking a woman’s choice to not report her rape as also empowering to her. Or, at least, empowering to society, and she’d certainly be second to that, now wouldn’t she?

Let’s take a look at the first argument:

Before a doctor could perform an abortion in these instances, the victim would be told that a report was required, and the doctor would be required to report the crime “by telephone or otherwise” to the state’s attorney or law enforcement.

The report would be made in the county in which the assault occurred. If that were unknown, the report would be made to law enforcement in the county in which the report was made to the doctor. The name, address and birth date of the woman, the date or dates of the rape or incest, the name and address or a description of the attacker (in rape cases) or the relationship between the pregnant woman and the perpetrator (in incest cases) also would need to be in the report.

Pro: Shifting the burden of reporting from victim to doctor eases some of the trauma, supporters say. The report can help catch the perpetrator, they add. “It’s an unfortunate situation, but if it is truly a case of rape or incest, we’re doing a disservice to society if we don’t do that,” Ridder said.

I have to give the anti-choice Satan spawns credit where credit is due: to the untrained eye, this argument looks pretty good. But the fact is that it’s flat-out wrong.

Firstly, shifting the burden of reporting from the victim to the doctor would only change who the victim must report the crime to. She would still have to provide all of the relevant information needed to file a police report. It’s the same exact process. Also, if police are actually going to try to catch the perpetrator based on this report, as Ridder emphasizes, they are certainly going to want to talk to the victim at some point anyway, meaning that any potentially traumatizing line of questioning isn’t going to be avoided. It further bears noting that the trauma many rape victims experience from reporting isn’t necessarily due to treatment by police, but treatment by their family, friends and community.

So the trauma there is not eased. To the contrary, the overall chances of re-traumatizing a victim are hugely increased when the state requires her to unwillingly undergo the process of reporting her rape in order to gain the privilege of aborting her rapist’s fetus. When a rapist rapes, he revokes his victim’s right to make a choice about whether or not to engage in sexual activity and imposes his own will. Under this bill, the government would also impose its own will over women, and would have coerced access to their lives — and coercion is not consent. Rape and forcing a woman to report rape are not the same thing. But they are both nonconsensual, and for many women they have the potential to be similarly traumatizing.

Additionally, if this new fabulous method of rape reporting is so much less traumatizing to women, why aren’t these really concerned activists working to give this right to report to a doctor instead of police to all rape victims? Should a victim have to be impregnated by her rapist to access the supposedly least traumatizing form of reporting? I’d think not. So, could the issue be that these people don’t actually care at all about rape victims, but are really concerned with how to most effectively restrict their access to health care?

As for the last quoted sentence from the immensely compassionate Dr. Ridder, what exactly is he insinuating with the words “if this is truly a case of rape or incest”? Because if and truly imply that a victim might be lying. Certainly, that’s not doing any favors to his claim that reporting a rape to a doctor is far less traumatizing than reporting directly to police. Then he moves onto how not reporting a rape is doing a disservice to society.

Clearly, in Dr. Ridder’s world, rape victims owe him, and me, and you, and all of us a shitload of favors. “Gee it’s unfortunate that you were raped, but now you have to do your duty to society, Little Missy.”

The fact is that victims don’t owe us anything. I’d like to see more victims report rape, but first we’re going to have to create a society where those victims can reliably find compassion and a fair, non-rape apologist judicial system. The answer is not to force women to report. Women who choose not to report do so for their own reasons, usually very logical ones, and they are not doing a disservice to society with that choice. How about we start looking at the rapist who is doing a disservice to society by raping people, rather than pointing fingers at the victims who they’ve made too fearful to report?

According to the proponents of Measure 11, though, those of us who support reproductive rights are on the side of rapists:

Before a doctor could perform an abortion in instances of rape or incest, the woman’s consent would be required for DNA samples from her and the fetus for future forensic analysis. The doctor would be required to “collect, secure, clearly label and refrigerate the samples and within 24 hours arrange with law enforcement to transfer custody of the samples.”

Pro: Under current law, VoteYes literature said: “The abortions are used to cover up the incest and rape, and the victims of incest are returned to the perpetrators of the crime. The new law will help stop rape and incest, will provide help for the victims, will no longer allow criminals to use abortion to cover up their crimes and will protect the victims of incest from future abuse.” Doctors are accustomed to reporting requirements and could manage the mandates of this provision, Ridder said.

First let me address the descriptive paragraph with a point already made: coerced compliance is not consent. A woman complying with the demand to give a DNA sample in order to access a medical service — please tell me, someone out there who knows the law, is this not a significant violation of constitutional rights? — is not necessarily consenting. And either consent or a search warrant should always be required for something like handing over a DNA sample.

As for the anti-choice arguments, there is an inherent logical fallacy here. If rapists in cases of ongoing abuse, like incest, are using abortion to cover up their crimes, doesn’t that mean that the rapists are therefore forcing their victims into having abortions? If this is the case, then surely under this law, rapists would just stop forcing their victims to get abortions, and would instead force the victims to hide the pregnancies or blame them on someone else, make them to carry to term, give birth, and then surrender the baby for adoption. You know, just like in pre-Roe days. It would only make sense for rapists to stop using abortion to cover up their rapes when they only way to obtain an abortion is for a rape to be reported, so they’d find alternatives to ensure that the reporting still doesn’t happen. Simple stuff.

The other possible suggestion in this argument is that the women themselves are seeking out the abortions and thereby covering up their own rapes — which is just a repulsive way to frame such a situation. However, the argument that the law would necessarily lead to more reporting still doesn’t hold, as there’s no evidence that a woman who is more afraid to report her rapist than to return to him is less afraid of reporting her rapist than trying to stick a coat hanger in her uterus, or taking some dangerous pills, etc. to induce an abortion on her own. No evidence at all. And so this bill is literally playing with rape victims’ lives.

Clearly, those supporting the ban don’t care about those slutty women who got pregnant from consensual sex and whether or not they hurt/maim/kill themselves with illegal and unsafe abortions — but surely they care about making sure that harm doesn’t befall rape victims, right? That’s what they want the public to believe, and this is why no one ought to buy it.

Over two excellent posts, Jen, one of the many wonderful women I met while in SD, talks about her own rapes and what the SD law could have meant for her under different circumstances, and why forcing her to report would have been so cruel. In a world where rape survivors are routinely mocked and laughed at simply for telling their own stories — and I should know — it’s downright sadistic to force women to tell their stories simply so that they don’t have to give birth to their rapist’s child. And arguing that it’s in women’s own best interest to do so is both patronizing and triggering.

Yet again, anti-choicers are co-opting feminist language to further their agenda, by claiming they know what is best and most empowering for women without bothering to ask them first (and assuming it would be the same answer from all women if they had). This stuff is disturbing enough when they’re merely patting us on the head and telling us that they know we’ll be happier if only we accept our rightful punishments for sex, but they’re taking it to a whole new, misogynistic level when using the same tactics to speak specifically about rape victims.

cross-posted at The Curvature


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26 Responses to On Those Supposed “Rape Exceptions”

  1. Pingback: On Those Supposed “Rape Exceptions” : The Curvature

  2. Ishtar says:

    My blood boiled when I read this post. I can only agree with you wholeheartedly. It sickens me that women have to fight and fight and fight just to have the most basic rights over their own bodies.

    I’m a South African and here we struggle with one of the highest (if not the highest) levels of rape and abuse of women in the world. Rape is vastly under-reported here because women are just not prepared to endure the “second rape” that all too often occurs afterwards at the hands of the police, courts and society.

    Thankfully, abortion is now legal here but women (especially rural women) still struggle to gain access because medical personnel simply refuse to provide abortion services if it goes against their beliefs (amongst other reasons).

    I completely understand if a woman chooses not to report being raped. If it happened to me (and living in South Africa my chances of being raped at least once on my lifetime are fairly high) I don’t know if I would report it.

    Why is it so difficult for people to comprehend that women are ADULTS, with the ability to make up our own damn minds about what’s best for us?

    Sorry for the rant but I’m at a point in my life where I’m just so sick and tired of all the injustice. Where’s Ellen Ripley when you need her? We have a much greater threat here than an ugly slime-drooling alien.

  3. Jack says:

    It would only make sense for rapists to stop using abortion to cover up their rapes when they only way to obtain an abortion is for a rape to be reported, so they’d find alternatives to ensure that the reporting still doesn’t happen.

    And as you mention, one of those alternatives may be medically unsafe illegal abortions, which I’d imagine may just increase in frequency if a ban like this is passed. When will people learn that simply making things illegal doesn’t mean people will stop doing them, it just means people will go to greater risks to do them (or, in this case, may be forced to go to greater risks against their will?)

    This whole rhetoric around “rape exceptions” is anti-woman, through and through, and wrapping it up in “feminist” language of “empowerment” just makes it worse. Sadly, this is par for the course in cases of violence against women: in order to get any protection or ameliorative support, the burden of proof is laid upon the victim, along with the concomitant retraumatization that may occur. Victims of intimate partner violence, for example, have to deal with police and legal systems that might be or seem dangerous or hostile to them in order to get orders of protection or the Section 8 housing set aside for d.v. victims. Imagine trying to do that if you’re an undocumented immigrant or have had a history of police violence against you or your communities.

  4. William says:

    Shifting the burden of reporting from victim to doctor eases some of the trauma, supporters say. The report can help catch the perpetrator, they add. “It’s an unfortunate situation, but if it is truly a case of rape or incest, we’re doing a disservice to society if we don’t do that,” Ridder said.

    Maybe my view of things is skewed by the fact that I’m working on a dissertation on professional ethics and responsibilities to the client versus responsibilities to society, but this is beyond a terrible idea. Aside from all the other (really excellent) objections Cara cited above, these kinds of “rape exemptions” are yet another area in which confidentiality is pruned back in service to some perceived good. They assume that both the individual seeking care and the highly trained, state licensed, insured expert providing the care just aren’t able to make a good enough decision without the immutable one-size-fits-all intervention of a group of ill informed, politically motivated non-experts. Moreover, its not enough for the judgment of the actual parties involved to be trumped by the State, but in order to ensure that its being trumped well enough the confidentiality of the doctor/patient relationship must be violated (which really means violating the autonomy of the client).

    The bottom line is that, in the case of abortion, doctors are asked to put their client fourth in their list of concerns. First is the will of society (that abortion must only be provided under X circumstances), second is their own well being (because, at the very least, violation of these edicts will mean a loss of livelihood), third is society’s need for rapists to be caught (regardless of the feelings or psychological state of the victim being asked to relive their experience), and then finally fourth comes the needs of the actual patient. You end up with the state dictating multiple levels of ethical violations and completely stripping the patient of autonomy in favor of the needs of society and a class of specially protected individuals.

  5. Angela says:

    I don’t know which is worst, Measure 11 or reading some of the stories and comments.

  6. kat says:

    Putting the reporting in the hands of doctors not only shifts the doctor’s concern away from patient care, as William mentioned, but also has some dire consequences for the uninsured.

    If a woman doesn’t have health insurance, what is she supposed to do? This really doesn’t seem like the kind of scenario that emergency room docs will be equipped to handle, even if the ER were a viable option for those without health care (which it’s not, of course).

    Also, the line about needing to provide the name and address of the rapist?!!?!? Except in cases where the rapist is someone the victim knows very well, she might not have access to that information. What’s she supposed to do? Google him before she goes to the doctor?

    This is so infuriating!

  7. Jen says:

    Cara: thank you for explaining, in a much more comprehensive way, every problem I have with these so-called rape exceptions.
    I wish this was a message that resonated more with South Dakotans. There are a lot of people I’ve talked to over the past week who really do get the concerns related to victims’ rights, but for the most part, I think most SD voters do see the rape report as something that victims somehow owe to society. It would take far more time than I have while making phone calls to divest them of this belief.

    And William: your point about the bottom line is exactly one of the points that the campaign is using. The penalty for doctors who violate this measure is a Class 4 Felony. That means it’s not just losing their career, their license, and paying a ridiculous amount of money into these legal processes, but they could face up to 10 years in prison. 10 years in prison for putting patient care first. Seems a little off, right? I certainly wouldn’t want my doctor to have to consult his lawyer before he could provide me with a medical service.
    But if I were in South Dakota, that wouldn’t even really be an issue. Because if this passes, the few doctors in SD that provide abortions will just stop offering that medical service. That’s just too much for them to risk.
    Because apparently, limiting doctors’ ability to care for their patients isn’t really a concern for the other side.

  8. Sheelzebub says:

    Cara thank you. I’ve explained to people why I think that rape, health, and incest exceptions are feel-good measures that leave women vulnerable (who decides what risk is untenable? Who decides if the rape “really” happened–and if the perp isn’t caught/is acquitted, do we throw the woman in jail for murder?).

    For people who claim to love life so much, these anti-choicers truly do seem to hate women.

  9. RoRo says:

    Another thing that gets me about this is that, at the same time these anti-choicers are railing against women who report their rapes and taking the default position that they’re probably lying about being raped at all (“IF they TRULY are cases of rape”…), they are setting up an actual motive to lie about being raped.

    Also (and forgive my own ignorance of what’s actually going on in SD), is this one of those stop-gap if-Roe-gets-overturned laws? If not, how in the world is this anywhere near legal?

  10. Bitter Scribe says:

    Also (and forgive my own ignorance of what’s actually going on in SD), is this one of those stop-gap if-Roe-gets-overturned laws?

    Yes. Basically, this is a pathetically transparent attempt by anti-choicers to lay claim to some tiny scrap of empathy for women.

    In any case, if someone truly believes that abortion is murder, then why even have a rape exception? Unless to make an abortion ban more palatable to those who are troubled by some notion that women are, you know, human beings?

  11. Cara says:

    William — excellent points, thank you. And Jen, thank you for tying all of this more closely back to SD.

    Also (and forgive my own ignorance of what’s actually going on in SD), is this one of those stop-gap if-Roe-gets-overturned laws? If not, how in the world is this anywhere near legal?

    The law if passed would be a direct challenge to Roe. That’s the point. If the law were passed, Planned Parenthood or ACLU or someone would sue, and then several appeals later it would have the chance to make it to the Supreme Court, and give Roberts and his conservative buddies on the bench the opening they’ve been waiting for to overturn Roe. What you’re referring to is a “trigger law” — a law that would go into effect if Roe were overturned. SD already has one of those.

  12. Banisteriopsis says:

    This sounds like a really excellent way to ensure that every abortion has a recorded father. “Excellent” being subjective. First step is to collect DNA in the case of rape, second step is to collect DNA in the case of any abortion. I don’t see any real benefit this would provide to the victim.

  13. Jen says:

    In any case, if someone truly believes that abortion is murder, then why even have a rape exception? Unless to make an abortion ban more palatable to those who are troubled by some notion that women are, you know, human beings?

    That’s exactly what this is. These are the same people who proposed the ban two years ago. Two years ago, we fought it by pointing out that the ban totally lacked exceptions for rape, incest, or women’s health. South Dakotans agreed with us, by a margin of about 12 points, and said that it was absolutely not ok to force victims or women with health problems to carry a kid to term. So the Yes for Life folks took that and wrote in so-called “exceptions” (which aren’t really exceptions at all, and won’t work in real life, and don’t cover anywhere near all the medical situations where an abortion may be the best choice) because they thought that’s what the people of SD wanted. They’re calling them “reasonable” exceptions. (One bumper sticker says something like “Vote Yes on 11: Reasonable.” And that’s it.)

    Interestingly, SD Right To Life has refused to endorse this measure. They don’t agree with the inclusion of exceptions at all — they think all abortion, in all cases (unless a woman is guaranteed to die) should be illegal. At least they’re consistent in their views of abortion as murder? They’re wrong, but at least they’re consistently wrong.

    Also (and forgive my own ignorance of what’s actually going on in SD), is this one of those stop-gap if-Roe-gets-overturned laws? If not, how in the world is this anywhere near legal?

    It’s not really just for if Roe gets overturned — SD already passed a trigger ban (as did ND, MS, and LA), so that’s not what this is. This is meant to be a direct threat to Roe. Not as cleanly direct as their last attempt in 2006, but a threat nonetheless. There’s already been talk of taking the exceptions out later, in the legislature, if this measure gets passed.

    But no, even with the exceptions included, it’s still a violation of Roe, and is not at all legal. It’ll still be challenged in court if it passes, and it’ll go to the supreme court, and we all know what our chances look like there…

  14. Bagelsan says:

    Purely from the legal side of things, couldn’t having a *medical* professional with no legal expertise/authority talking to the victim contaminate the evidence or something? I can just see some woman actually jumping through all those fucking hoops, and then getting to court and finding out that her case won’t be admitted on some technicality…

  15. William says:

    Purely from the legal side of things, couldn’t having a *medical* professional with no legal expertise/authority talking to the victim contaminate the evidence or something?

    Well, yeah, that would be a problem if you were actually concerned with catching and prosecuting rapists. My inkling is that the people pushing this law probably don’t really care too much about preventing rape, considering the fact that they’re willing to casually throw one secure of legal privilege involving consent and autonomy out the window to prevent women from exercising another.

    I think its important to note here that the same ethical and legal theory that makes rape a crime are being violated here by the law itself in order to protect something that is not, as yet, legally considered a person.

  16. Hilary says:

    I don’t understand (on so many levels, but….). Are there any barriers up today to using tissue from an abortion to convict a rapist or perpetrator of incest? I mean, other than the status quo barriers that women face to reporting rape, but institutional barriers? If not, then what the hell right do they have to say abortions are used to cover up rape and incest?

    And what does it have to do with denying the right to other women?

  17. SunlessNick says:

    At least they’re consistent in their views of abortion as murder? They’re wrong, but at least they’re consistently wrong.

    Wrong, but they at least appear to believe the principle they claim. Those who “concede” objections for rape, health, or any other reason they deem worthy are de facto admitting that their true principle is to control the bodies of women they disapprove of. And any other women they decide to, since refusing them amounts to disapproved behaviour.

    I think its important to note here that the same ethical and legal theory that makes rape a crime are being violated here by the law itself in order to protect something that is not, as yet, legally considered a person.

    Very well put.

  18. William says:

    Those who “concede” objections for rape, health, or any other reason they deem worthy are de facto admitting that their true principle is to control the bodies of women they disapprove of.

    I’ve always wondered why this point doesn’t get more mainstream traction. All laws are, ultimately, about control. You don’t have to be a deconstructionist to recognize that laws are what govern behavior between individuals, bringing coercive force into effect to reduce the instance of certain socially unacceptable behaviors. You can pose it as a tension between competing interests if you like, but the pro-life still comes down to prohibiting a certain behavior (having an abortion) except in some instances where society may permit it (for instance, when the pregnancy was the result of the taboo behavior of another instead of being the result of the woman transgressing). Why dance around the point? Seems to reek of shame to me…

  19. Lise says:

    This horrible law even puts men in danger. A desperate woman could be driven to accuse an innocent man of rape because she needs an abortion. And a genuine rapist could use the law as a defense, claiming in court that the sex was consensual and the slut only accused him because she wanted an abortion.

  20. CaliOak says:

    I hate to point this out…but in California at this law is already on the books.

    Medical personnel, down to data entry clerks, are already required to report suspected child abuse and domestic violence to the police.

    The law doesn’t apply to stranger rapes…hmm now I think about it I can’t even remember if it cover domestic violence, but it does cover child abuse which would include rape or incest of a minor.

    This law actually does help women and kids. It also puts the burden squarely where it belongs…on the general public to complain and police to solve the problem.

    P.S. The medical people don’t take the police report. They just report suspected abuse to the police who persue it. The victim doesn’t have to do anything.

  21. Cara says:

    No, CaliOak, this same law is not on the books in California. That is a child protection law you’re referring to. I think that every state has something like that. They are not even remotely the same thing, especially considering the fact that doctors don’t say to the abused child “now you have to tell me who did this to you and give me their address or I’m not allowed to provide you with medical care.” See the difference?

    And I don’t see your logic regarding the victim not having to do anything. If the police ignore the suspected abuse, then maybe no, the victim doesn’t have to do anything. If the police follow up, and especially if they make an arrest, they’re going to want to question the victim, and if it goes to trial they’d also have to testify.

  22. William says:

    This law actually does help women and kids. It also puts the burden squarely where it belongs…on the general public to complain and police to solve the problem.

    Mandated reporting laws aren’t nearly as good of things as a lot of people seem to think. In my personal experience they have lead to problems like DCFS in Illinois unofficially only taking cases of life threatening physical abuse or ongoing sexual abuse because there are simply too many reports of child abuse in a given day to manage. They also lead to health care providers and social workers putting their own liability above the welfare of patients and clients (ie. reporting in questionable cases out of fear of losing their license). On top of those problems I myself have run into situations where an abuse report lead to more and more serious abuse as well as situations where the knowledge that abuse would have to be reported lead to clients failing to disclose information that needed to be disclosed.

    Beyond the purely pragmatic problems with mandated reporting laws, there is a serious issue of autonomy and confidentiality here. While they might be marginally defensible when talking about children, depending on when you feel constitutional rights ought to kick in, they still present a very serious problem. Mandated reporting laws substitute the judgment of the state for the will of the individual or of a licensed professional. These kinds of laws disempower victims in very real ways because they take away the power to deal with the abuse they faced on their terms or in their own time. Essentially they say “we don’t care if you want help, if help will make it worse, or if you’re willing to face your abuse yet.” These laws breach the Doctor/Patient privilege and disregard the patient’s agency for patient’s “own good,” a precedent which ought to give pause (if not terrify) anyone paying attention.

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  24. chris says:

    So basically the argument is that you would be okay with the law if it were easier for rape and incest victims to get abortions? I am guessing the anti-choice crowd would be okay with drawing the line there. Just speak plainly rather than arguing this on the fringes.

  25. Cara says:

    Uh no, Chris, that’s not my argument and if you read the post you’d know that. My argument is that not only is the law hateful towards the women for whom it would explicitly outlaw abortions, but that it’s also hateful to those women they’re claiming to protect. I’m further arguing that it’s wrong to dress up the dehumanization and rights violations of a rape victim as “the right thing to do” and in fact in support of rape victims.

    But p.s., they’re not okay with it. Several anti-choice groups are opposing Measure 11, because it allows those exceptions. And anti-choice leaders at least morally oppose these exceptions entirely across the board.

  26. Tonya says:

    I’m so tired of this nonsense. I am all for supporting survivors of sexual assault, but I can’t stand how survivors are used to somehow “justify” abortion. By only giving survivors the choice (and a limited choice at that) to obtain an abortion is basically saying that if you had consensual sex, you don’t “deserve” an abortion because you were wanton. As well, many of these people that support this abortion ban (with or without the new provisions) believe in life at conception, so if these people believe in life at conception, what makes a consensual sex fetus different from a non-consensual sex fetus?

    This ban is an attack on the morality of women and they are only looking for a way to continue to control women’s reproductive lives.

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