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What's Behind The Drive To Redefine Rape In New And Insane Ways?

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The recent drive behind H.R. 3, the "No Taxpayer Funding for Abortion Act," is animated by one thing and one thing only -- the deep and abiding belief among its cosponsors that women are chattel. Not even that "babies are great" -- many of the same cosponsors are those who'd all but wash their hands of the responsibility of ensuring those children got affordable health care. But what's getting all of the attention in the bill is the part where legislators have banded together to mansplain the various shadings of the crime of "rape" to America.

'The limitations established in sections 301, 302, 303, and 304 shall not apply to an abortion--

'(1) if the pregnancy occurred because the pregnant female was the subject of an act of forcible rape or, if a minor, an act of incest; or

'(2) in the case where the pregnant female suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the pregnant female in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself.

That portion is what the Washington Post's Jonathan Capeheart calls "the scary part" of the bill. I sort of think that the whole idea of government intrusion for the purpose of turning women into brood-mares is pretty much "the scary part," but I'll allow that the above terrifies on a whole new David Cronenberg-esque level. Essentially, it makes allowances for abortions only in the case of "forcible rape."

(I'd be worried about that second clause, as well, seeing as we live in a world where Bill O'Reilly, anti-abortion warrior, has apparently never heard of an "ectopic pregnancy" or "pre-eclampsia.")

What's off the table? Well, if you are a woman coerced, drugged or otherwise incapacitated by a rapist, too bad! Also, if you are a young child, statutory rape is off the table, too, unless incest is involved. (The incest exception lapses for adults, crazily.) Per Nick Baumann:

For example: If a 13-year-old girl is impregnated by a 24-year-old adult, she would no longer qualify to have Medicaid pay for an abortion. (Smith's spokesman did not respond to a call and an email requesting comment.)

Given that the bill also would forbid the use of tax benefits to pay for abortions, that 13-year-old's parents wouldn't be allowed to use money from a tax-exempt health savings account (HSA) to pay for the procedure. They also wouldn't be able to deduct the cost of the abortion or the cost of any insurance that paid for it as a medical expense.

But "forcible rape" still qualifies, which is good, right? Well, the problem here is that no one can really define what "forcible rape" is. As Sady Doyle points out in Salon today, "The term "forcible rape" actually has no set meaning; legal definitions of "force" vary widely. And every survivor who finds herself in need of abortion funding will have to submit her rape for government approval." Which is, again, crazy.

Doyle has a pretty good idea how the forcible rape standard is going to work, though:

H.R. 3's language brings us back to an ancient, long-outdated standard of rape law: "Utmost resistance." By this standard, a rape verdict depended not on whether the victim consented, but on whether outsiders thought she resisted as hard as humanly possible. Survivors rarely measured up.

There's an example of how "utmost resistance" worked in the 1887 text Defences to Crime. In this case, a man was accused of raping a sixteen-year-old girl. (A minor, but not incest: Already convicted by current standards, not enough for H.R. 3.) The attacker held her hands behind her back with one of his hands. I asked my partner to test this move's "forcefulness," by holding my wrists the same way; I was unable to break his grip, though he's not much larger than I am, and it hurt to struggle. The attacker then used his free hand and his leg to force open her legs, knocked her off-balance onto his crotch, and penetrated her.

His conviction was overturned. Because the girl was on top.

Capeheart says that he's waiting to hear back from anyone who can either set a definition of "forcible rape" or justify leaving out women impregnated against her will as a result of "being drugged, drunk, mentally disabled or date rape[d]." It's likely to be a long wait: having denoted that section as "the scary part," Capeheart has unwittingly suggested that the rest of the law is palatable. That's probably the whole point of "the scary part" -- it's an "Overton Window" game of defining a new frontier in "extreme" in order to make the original "extreme" seem reasonable by comparison. Back to Doyle:

There's been widespread public outcry. There's been massive scrutiny of the clause. There's an ongoing protest, online; I know about that one, because I started it. It's tagged #DearJohn on Twitter, and it includes a campaign to target each and every representative, especially those connected with the bill, and explain to them why it's unacceptable both in terms of rape survivors' rights and in terms of the right to abortion. Even Fox News won't touch it. This push to eliminate victims' rights is a big, messy, costly embarrassment, even for the extremist groups this bill represents.

But it's part of a long history. Feminists have been opposing restrictions to abortion funding for as long as there have been legal abortions. The biggest fear of everyone involved is that things will proceed the way they always do. There's a widespread outcry. We get one concession -- full rape exemptions. And then the bill moves forward, according to plan.

And that's how that is going to work. Of course, one still wonders if the people who dreamed up this bill ever stopped to imagine its potential consequences on their mothers, sisters, wives, and daughters. Maybe they did. Maybe they gave some consideration to the trauma that their mothers, sisters, wives, and daughters would experience if they had to give birth to a child conceived by force or coercion. But in the end, it's immaterial: the people behind the bill are animated by the belief that their mothers, sisters, wives, and daughters are chattel.

RELATED:
John Boehner's push to redefine rape [Salon]
The House GOP's Plan to Redefine Rape [Mother Jones]
What is 'forcible rape' exactly? [PostPartisan @ WaPo]

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