rape and incest

The last thing I want to write about is the issue of abortion. With everthing else that we Americans should be devoting our time and energy arguing, debating and disagreeing about, abortion is probably right above flag burning and somewhere below gay marriage. All of these issues are peanuts compared to the actual questions that face us as a nation: how should we project ourselves globally; are we for free trade except when it comes to steel imports; is our energy policy flawed to the point of putting us on a crash course with economic and environmental disaster; with the rising costs of healthcare, limits to healthcare access for all people and the increasing mobility of our population is an epidemic of crippling scale waiting in the wings?

These are the questions I should be writing about. I should, for myself, be immersed in the quest to answer these actual meaningful challenges that we all face. But those questions require broad knowledge, serious research, and an unflagging curiousity that is not required to address baby murder, fag brides and blazing up Ol' Glory. So I stick with the simple stuff and leave the big questions to the guys paid by the corporate funded think tanks. They'll look out for us . . . seriously.

Whether you support or oppose abortion makes no difference to me. I don't care if you think it's murder or an out-patient procedure. On both sides of the issue people have well reasoned, concise and rational arguments to support their position. Arguments that, in practice, seem most effective when barked out in some sort of metered rhyme while standing in the midst of a human amoeboid form bristling with preprinted signage. What I don't appreciate are the hedge justifications that some will put forth to qualify their position and make their support or opposition to the procedure more palatable to their opposition.

I have respect for people who stick to their guns. The pro-choice activists who simply argue that a woman's decision to have an abortion is her choice and we, as a responsible society, should make that procedure medically safe and available. They will acknowledge that many people don't like abortion, and they never tell you that abortion is a good thing; and conversely, they aren't going to tell you that it's a bad thing.

On the pro-life side of the arguement, I respect the people who stand firm on their position in support of what President Bush (take II) has called the 'culture of life.' These are the conception-to-natural-death advocates. They oppose abortion, period. They oppose euthanasia, period. They oppose the death penalty, period. These are people, guided in large part by a deep and personal faith, who believe that it is not the place of one human to take the life of another. These are the people who will as likely picket an execution as a clinic that performs abortions. These are the advocates that will march in protest of a war as soon as they will march against Roe.

Whatever their position, people who understand the underpinnings of their stance get my respect if not my agreement. I realize that in so many questions we address as a society, there is no black-and-white distinction and that there are many grey and difficult areas to navigate, but when it comes to something like abortion, where you are talking about something so personal and sensitive, hedging your position (especially if you are a politician) only makes you look weak-in-the-knee, uncertain of what you really believe and only too willing to let everyone get the sense that you kind of agree with them.

President Bill Clinton gave us a well known and quotable hedge -- a sly wink to the center-right -- with his desire to make abortion 'safe, legal and rare' (the SLR hedge). I follow President Clinton down the safe and legal road, but he makes an odd turn at rare. If something is safe and legal, does frequency matter? Of course it doesn't. If something is safe and legal, then it's safe and it's legal. However often we decide to avail ourselves of the opportunity shouldn't be the concern of the state. When we add in the rare qualifier we start to make moral judgements. This is the conscious nod to the belief that, though this is something that is sanctioned and available, it is evil and discouraged. And if you decide to have an abortion, then you are working against President Clinton's goal to make the procedure rare. So think -- do you really need that abortion? The government has done all it can to make this safe and legal. What are you doing to make it rare?

Sanctioned abhorrence: why haven't we tried this with the war on drugs? Taking advantage of a sanction should never come with a side dish of moral disapproval. We can all take responsibility for our actions and do not need the wagging finger of the nation letting us know that, though this is safe, and legal, it's really only for those who really need it. When compiling a list of those that would be worthy of abortion, the pro-life wafflers developed a famously hedged class: victims of rape and incest.

Yes, rape and incest. Acceptable exceptions to the evil practice of voiding out the life of the unborn child growing inside you. If, through no fault or failure of your own, you have become pregnant (and you've led a pure life) you can terminate your pregnancy. If, and only if, you have suffered a violation of your pure and sacred body, if you have been assaulted and abused in a manner unspeakable, you may now have an abortion -- but not those other people. They want abortions because they are irresponsible and selfish. Those people need to understand that there are consequences for their actions. Consequences may include pregnancy, childbirth, and the resposiblility to raise (or foresake) their child.

There is an obstacle inherent in the justification for allowing abortion in limited and narrowly defined circumstances. Anyone with even a passing familiarity with the law knows this, which makes it funny (laughable funny, in a grim sort of way) since many of the people advocating limiting abortion to cases of rape and incest (oh, and the life of the mother -- but I think that goes without saying, right?) are lawyers and law makers. These are people that know how law works, and should know better.

If you don't see where I am going with this, let me attempt to make a concise explanation -- understand that this is not legal advice and may not apply to your circumstance. If you have any legal questions, you should consult an actual lawyer.

When you write a law, one of the first things you do is compile a list of definitions. English, being what it is, and lawyers, being who they are, require specific explanations of how particular words used in the legislation apply to the execution of the law. (This must be a newer phenomenon. Had the framers of the Constitution employed this legislative proceedure, our Constitution would, instead of being a few brief pages, occupy an entire, well constructed, bookshelf.) If you write a law prohibiting the abortion procedures, except in cases of rape, incest, or the life of the mother, you have to define what, in this bill, the words rape and incest and the phrase 'life of the mother' mean. Then, once you have defined the terms, you have to build a test into the legislative language. (Reading law is a really boring activity, but illuminating.)

In this example of limiting abortion to cases of rape and incest (and it's odd that they separate the two terms -- does this imply that in some cases of incest we are not considering it rape, or does it separate incest as a rape that violates an even greater taboo? Talk amongst yourselves) we have to build a test that will establish whether a candidate for an abortion procedure meets the criteria of the law.

A woman says she has been raped. This does not mean that she has been raped. It means she has made a statement that she was raped. I'm not being cold and insensitive, I'm just laying it out in the context of how law approaches questions of fact. If we really want to impose these limits, we have to have a standard higher than a patient walking into a clinic, saying, 'I've been raped, give me an abortion.' To genuinely limit abortion to cases of rape and incest then we need a proof for identifying rape and incest victims. This will necessarily be a judicial process. Another question is whether we require it to become a criminal prosecution as well.

Last I checked, rape and incest, in addition to being frowned upon, were criminal offenses. A woman seeking an abortion under these restricted circumstances must first make it known that she feels she was a victim of rape or incest to an authority, and a record will be made of the statement. Now we have the accusation of a crime, but no conviction of a criminal. We have to make the decision whether to grant an abortion of the basis of the accusation, or whether we need further proof of the rape.

In the mind of a victim of rape, rape is the unwelcome sexual violation of the body. Nobody needs to tell a woman who has been raped whether or not she has been raped; it's a fact that she will live with forever. In the eye of the law, an individual's belief that they have been raped is insufficient proof to make any conclusion, especially if we are seeking to limit abortions to only legitimate cases of rape and incest. It's easy enough to tell a story to get what you want. If the bar for getting an abortion is to simply say that you were raped, there will be a long line of women willing to say they were raped.

And it's such an easy story to tell: It was dark, I didn't see anything, he didn't say anything, he raped me. May I please have my abortion now?

The problem with rape, from a legal perspective, is that it is a violent perversion of a normal and common activity. Determining the distinction between a passionate night that got out of hand and a violent sexual assault is a tough needle to thread. There usually are not witnesses. Ferensic details are fuzzy and fleeting. The process of prosecution can be humiliating and fruitless. This is why many victims of rape do not come forward. In addition to questioning whether their actions played a role in inviting the attack, most would prefer to not relive the event over and over in an attempt to persue an incomplete measure of justice for the act. After not reporting the rape, after making every attempt to put the attack behind her, after washing her body and burning her clothes she finds that, cruelty of fate, she is pregnant. Build a test this woman can meet so that she can obtain an abortion.

If you are having trouble with the exercise, here are some suggestions for building such a test:

1) Accusation: Any woman making a claim of being raped is given permission to have an abortion. This requires no physical proof and no criminal proceedings. It does add a layer of bureaucratic meddling and paperwork to a procedure that can be traumatic in and of itself, but at least we could have a measure of moral assurance that the abortion was justified.

2) Medical Verification: Any woman seeking an abortion because of rape must have the instance of rape medically verified. If medical verification of the rape is not possible, then the request for an abortion waiver is denied. This will teach victims of rape that they must immediately seek medical attention after being raped so they can have a case for seeking an abortion if and when they become pregnant as a result of the attack. Those who fail to report the rape and who are not immediately medically examined should have been more responsible.

3) Criminal Conviction: This is America, and in theory, a crime isn't really a crime until someone has been convicted. You can say you were raped by that guy at the party, but that's for a jury of your peers to decide. This means, little lady, that until someone has been convicted of raping you, we can't say with any certainty that you were indeed raped. Your request for an abortion, pending appeals, could be granted sometime after your child's first birthday. By the way, if you were raped by a stranger that is never caught, it's assumed that you were making it up. Remember, innocent until proven guilty is the law of the land (it's in the Constitution and everything) and until we have a collar and a conviction, you're shit out of luck.

A local candidate for Congress (a Democrat who is pro-life -- perhaps his only hope of beating his Republican opponent) answered the following question on his website (in paraphrase), "How can you oppose abortion and still allow for an exception for rape and incest?" He replied, "First, I will be honest, I have a tough time telling a woman who was raped or victim of incest what to do. Is that right? I don't know, but it's how I feel." This, to me, says that he has no problem telling other women, regardless of their circumstance, what to do. This amounts to a public health policy that has a moral litmus test. Next, we exclude people from liver transplant lists because they may have taken too much Tylenol. It says right in the bottle that it can cause liver damage, you should have made better choices. It's not like you're liver is shot through no fault of your own.

Oh incest, how shall we define thee? Cuddling cousins (still legal in a few states, I believe), untoward uncles, drunk daddys, senseless siblings? And when the woman (inevitably a minor) comes to officialdom with her request for terminating pregnancy based on the incest exemption, how will we determine the veracity of her claim? Are we going to require double-verified genetic analysis? Forced amniocentisis on a traumatized youth? Do we confront the offending relative and beat them with pipes until they confess? Do we insert the state into what is clearly an already broken situation and have the heavy hand of government take the wheel? I see that going well. Dad finds out that not only is his daughter pregnant, but that she wants an abortion and he finds this out because the social worker has come by his house to have him sign a confession of having relations with his daughter and also the parental consent form so the doctor can perform the abortion on a minor. I see this playing out very well.

I'm not saying that incest is a misunderstood practice that we would better accept if only we could recontextualize the event. I'm saying that it's sick, evil and deplorable. I'm saying that singling it out as a justification for abortion will not help the victims of incest. Any test you develop for an incest exemption is more likely to aggrevate the situation than to solve anything other than an aching need to serve comeupance. See, in the good old days, the little miss would have just been kicked in the gut or thrown down a flight of stairs. In more recent days, she could hop over to the clinic in the next county and get back the next day, sans fetus, to stride the baby-saving picket lines with her daughter-fucking misery of a father. If she has to prove incest in order to receive a safe and legal abortion, she's going to die in tragic kitchen accident before Daddy will let himself be embarrassed in public like that.

And, oh shit, I forgot, what if a poor hypothetical woman has no idea who the father of her growing fetus might be? And take your mind out of the gutter. Let's say that Jane Roe had standard, loving, committed, consentual, missionary style sex with her devoted and religiously observant husband on Tuesday night, and on Wednesday, after bible study, she is raped by the husband of one of the couples with whom they attend church. She said no. She scratched. She slapped. She tried to scream but he muffled her cry. She wore a flower-printed tent dress with a wide, high, white collar that left everything to the imagination. He penetrated her with his pencil dick and screamed that she made him do it. Two weeks later, she's late. You're the self-righteous politician who wants to put limits on abortion. How do you split this baby down the middle? She did not go to the police. She did not tell her husband. She did not tell her friend whose husband raped her. She is pregnant and she doesn't know by whom. Maybe she is pregnant as a result of the gastly and horrifying rape she suffered. Maybe loving husband's seed got to the egg first. Maybe it's twins and one of each. How does your test work in this situation?

The last thing this woman wants to do is humiliate her husband, humiliate her friend and become the common whore of the congregation. If only there were some way for her to quietly and discretely terminate the pregnancy without begging a government official to grant her dispensation for this one and only time she will need an abortion. Do we need to build elaborate examples such as this to illuminate the need to keep government out of a woman's uterus? Yes, she didn't go to the police, many victims of rape and incest do not. Should they? Yes, yes, yes. But I have a hard time telling someone who has been the victim of rape or incest what hoops they should have to jump through to deem themselves worthy of a medical procedure.

Actually, as a man, I have a hard time telling any woman how to deal with her body in any situation. Due to my lack of first-hand experience, I find myself deficient in the authority department. But that's not the point. When it comes decisions our government makes that affects our personal choices, we don't need a morality tale to go along with it. We don't need a worthiness test for official sanction of a personal act. Once we define a test, or put qualifiers on a choice then the government has stepped beyond its obligation to keep us safe and has crossed into the realm of keeping us good. That's not the job of government. Whether it's Bill Clinton's high and mighty SLR morality lecture, or the rape and incest fetish of pro-life partisans our civil servants should have no need to make anyone morally justify their legal activity. We don't burn witches anymore. We don't have convents for reformed hookers. We don't pretend to be perfect. Why should we be expected to prove that we are?