Find it here: http://thedeadauthorsclub.wordpress.com/2012/10/26/fetal-personhood-and-criminalizing-abortion-a-prosecutors-perspective/
--Kim
the dead authors club
A not-even-remotely highbrow blog about classic books and more Posted by: Chris@thedeadauthorsclub | 2012/10/26Fetal personhood and criminalizing abortion: a prosecutor's perspective
I apologize in advance, because this post has nothing to do with books, classics or otherwise.But I've been watching a lot of Republican candidates for federal office saying a lot of stuff about pregnancy and rape, and pregnancies resulting from rape, over the last several weeks, and I am simply unable to keep my mouth shut any longer. Because as all of my friends know, I've been prosecuting rape, child abuse and homicide for over a decade and a half, and this is a subject that I happen to know quite a lot about. And I am deeply disturbed by the personhood movement, by the idea that there should be specified exceptions to a blanket criminalization of abortion, and by the fact that the group of mostly men propounding this policy seem to have absolutely no FREAKING idea what they are actually trying to do here. Since I think that my perspective as a prosecutor might be relevant, I intend to provide it. Read on if you want to hear it. Skip this if you don't.
First off, I want to talk about an abortion ban that leaves exceptions in place only for instances of rape, incest or life of the mother. The first thing that I want to say about this policy is this: this is a pro-choice position. The proponents can call it whatever the hell they want, but the bottom line is that this position is pro-choice. A person who takes this position is acknowledging that a woman has the right to terminate a pregnancy. What we are actually quibbling about here is who gets to decide when the woman's reason is good enough. With the classic pro-choice position, the person who gets to decide if the woman's reason is good enough is the woman. Herself. The rape/incest exception people – their position is that they get to decide if someone else's (i.e., some other woman's) reason is good enough. I am pro-her-choice. They are pro-their-choice.
In addition, however, to the extraordinary presumption and paternalism inherent in the position that you – whoever you are – should have more control than the pregnant woman over her reproductive future, is the absolutely, unequivocally impossible enforcement situation that this policy would create. So, we criminalize abortion but leave in place exceptions for rape, incest and the life of the mother. As a policy matter, what does this mean?
Well, it involves me. That is pretty much a certainty, because I am a prosecutor and I prosecute people accused of crimes. So if we find ourselves in a situation where women who get abortions that don't fall under one of those exceptions have committed a crime, then I'm going to be the one making the decisions about what happens next. That's my job. And I have to say, I am more than a little bit uncomfortable about being legally mandated to prosecute other women because they have terminated a pregnancy when it is a bunch of non-pregnant people – many of whom are men who can't even become pregnant – who don't think her reason was "good enough" to be "legal".
But, please, enlighten me. How do I decide if prosecution is warranted? And, by the way, how does a woman who qualifies for one of these exceptions go about availing herself of the exception? Are we going to take the pregnant woman's word for it that she was raped (somehow I suspect that the answer to this question will be "no")? Is there going to be a form that she has to fill out? Will she be placed under oath? Will there be post-abortion investigations by the police to ensure that she was truthful when she said that she was raped? If we aren't going to just take her word for it, what will be the mechanism for fact finding we will use?
Will there be some sort of hearing, in a public courtroom, before a judge, where a woman is required to prove that she was raped? How much humiliation will we require the woman to endure during this hearing? Will her attire at the time of the "rape" be relevant? How about her reputation for chastity? Will Rule 412 apply? Will she be subject to cross-examination? Will she have the right to counsel, court appointed if she cannot afford to her own lawyer? Who will represent the interests of the state/fetus? Will it be someone like me, with a similar job title? What will the burden of proof be for the hearing? How will we expedite the hearing so that the abortion can occur within the appropriate time frame, given that there is a window of opportunity that cannot be missed? Will there be an appeal process? Has ANYONE who wants to criminalize abortion while leaving open some exceptions spent even seven seconds considering any of these questions?
But wait, there's more! What about statutory sex crimes involving children? What if the "woman" is really a child of 11, and the perpetrator is a 35-year-old predator who met her on the internet, groomed her, and then had sex with her? Is it still a rape, even though he didn't use force to compel compliance? Who gets to decide if the child victim should be permitted to have an abortion? If you are her parent, do you seriously think that some pro-life, conservative Christian judge should be empowered to tell you what is in the best interest of your eleven-year-old, 75 pound, emotionally-ravaged baby girl's health and welfare? How about some jackass who just happens to be the duly elected Senator from Indiana, but who has absolutely no credentials related to mental health or pediatrics or child development? Where does that guy get the authority to tell you that this pregnancy is what God intended, and that therefore you are going to spend the next eighteen years raising the child of the man who raped your fifth grader while he spends the next quarter century enjoying three hots and a cot courtesy of the taxpayers and the Department of Corrections? And what if your daughter dies in childbirth? Will you be expected to take solace in the fact that, according to the likes of Richard Mourdock, this was all a part of God's great plan for your family?
Oh, and, what if the rapist denies that it was a rape (rapists do this, sometimes. This may come as a shock. I am sorry to destroy your illusions)? What if I – the prosecutor – determine that there is insufficient evidence to charge the defendant with the crime of rape. Criminal charges require proof beyond a reasonable doubt. That is a really high burden. What if I believe it happened, but I don't think that I can prove it. Does that mean the woman wasn't raped for purposes of the rape/incest exception?
This is what happens when we start second-guessing reproductive health decisions being made by pregnant girls and women. We wade into a thicket where, suddenly, lawyers and judges and police officers are making decisions that we are so incredibly ill-equipped to make. Where people like me end up telling pregnant women, "hey, what happened to you wasn't horrifying enough for ME to allow YOU to terminate this pregnancy. Sorry. But remember, this is all part of God's plan for you."
And then, to take it one step further (and I apologize, because I know this is really long and if you haven't stopped reading by now, you undoubtedly really want to) what happens if there really is a law that declares a cluster of cells moments after the joining of the egg and the sperm a person? What does that mean?
Well, what it potentially means under the law of my state is this: any person who intentionally causes the death of a person under the age of 14 years has committed the crime of aggravated murder. A person is defined as a human being who has been born alive. But if the federal government changes that definition, then well, does that make abortion a potential death penalty offense?
So, personhood for a cluster of cells means that abortion could equal aggravated murder. Really, do Republicans want us prosecuting girls and women for the aggravated homicide of their zygotes? Is that the plan here? Do they actually want to impose the death penalty, or will life in prison be sufficient to satisfy their pathological need to punish women for the crime of being sexually active? Of course, if the woman is guilty, so is the man who facilitates her in procuring an abortion – boys, if you take your girlfriend to Planned Parenthood for an abortion, we're going to imprison you both for murder. It's called a "conspiracy." In case you were wondering.
But if that isn't their goal, if they would say "of course we don't want that," well, then, I have to ask, "what the hell do you want?" Because if you actually believe that a zygote is a person, then how can you demand anything less than justice for the murder victim? Acceptance of less than full accountability means that the zygote has less meaningful protection for its personhood than other persons. And if you can accept this, then it must mean that you don't actually think it is a person, because we don't have degrees of personhood in this country. If it is a person, then it absolutely must enjoy the same rights and protections of every other person. So, if you aren't actually prepared to deal with the consequences that flow from granting it those rights and protections, then you cannot justify calling it a person. Words have power and meaning, and if even you don't really think it is a person, then what the fuck are we all having this discussion for?
These positions are based upon a certain religious perspective. I have one of those, too. In my world, God is never present at the scene of a rape. And, unless you've been raped, you cannot understand what it is like to be raped, and you should shut your effing pie hole about it. You do not tell a pregnant victim to make lemonade out of lemons. Having a daughter who is an unwed mother is not like having a daughter who was raped, nor is it like being a woman who was raped. There is no biological imperative that prevents a woman who was raped from becoming pregnant. And your belief in your God has absolutely nothing to do with my, or anyone else's, decisions about reproductive health or family size or status.
And all of this chatter and talk is offensive, it is demeaning, it is patronizing, and it is unconscionable. As someone who has worked with rape victims – including some who were pregnant, some who were children, and some who were pregnant children – for over a decade, I would strongly suggest that you all think a little harder about what you really want here and about what you are really proposing. And then, when you're done with this thinking process that you should have engaged in BEFORE you started shooting your mouths off, please do me the courtesy of leaving me (and the critically important work that I, and people just like me, do every day to advance the causes of justice and public safety in our communities) the HELL out of your overweening compulsion to control the lives and pregnancies of a bunch of girls and women you have never met and will never meet.
And one more thing. Stop with the pandering bullshit about "small government." Because no person who seeks to require government officials to be involved in litigation over the fertility of the uteruses of all of the women who reside in their jurisdictions can credibly claim to be a proponent of small government.
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