About those "Rape Exceptions" in Proposed South Dakota Abortion Ban...

Posted by Cara , Feministe at 2:21 AM on October 7, 2008.

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.

Tagged as: reproductive, abortion, women, equality