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‘Legitimate Rape’—a Dangerous Fallacy

Over the weekend, the Missouri politician Todd Akin introduced a new concept to television viewers: “legitimate rape.”  Representative Akin, a six-term member of Congress, professed that legitimate rapes rarely result in pregnancy. He told an interviewer:

Well, you know, people always want to try to make that as one of those things, “Well, how do you, how do you slice this particularly tough sort of ethical question?” It seems to me, first of all, from what I understand from doctors, that’s really rare. If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.

Akin’s faux pas is troubling for what it suggests regarding women and sex. On the one hand, there are different species of rape. On the other hand, only one type of rape is real or legitimate; the others are phony. Implicitly, the comment conveys that only consensual sex results in pregnancy—and not incest, marital rape, war rape, date rape, and other types of sexual coercion and abuse. If taken to its logical end, that would mean possible evidence of a rape, such as a pregnancy, could be invoked by a rapist to discredit the victim.

Akin’s theory about rape and reproduction is scientifically flawed and factually inaccurate. A three-year longitudinal study published by the American Journal of Obstetrics and Gynecology, “Rape-Related Pregnancy: Estimates and Descriptive Characteristics From a National Sample of Women,” concluded that 5 percent of rapes result in pregnancies. The study dates to 1996; however, the conclusions remain salient. The authors attempted to determine how many pregnancies result from rape and the circumstances surrounding those pregnancies (known versus unknown perpetrator, whether the rape was reported, when the rape was reported, etc.).

Among adult women who are raped in the United States, over 32,000 pregnancies occur each year. That figure can be multiplied globally as tens of thousands of girls are forced into underage marriages in India, Nepal, Pakistan, South Africa, Yemen, and other countries. Sometimes girls are raped because they are seen as “pure” and will not infect their assailants with HIV, syphilis, or gonorrhea.

Among American cases of known rape pregnancies involving adolescents, a majority of victims are biologically related to their perpetrators. Nearly a third of the rape victims “did not discover they were pregnant until they had already entered the second trimester,” according to the 1996 study. The researchers discovered that less than 12 percent of the pregnancies resulted in a spontaneous abortion. The authors concluded that sexual victimization “frequently” leads to unwanted pregnancies.

However, Congressman Akin’s comment also marks an important opportunity to reflect on the political manipulation of women’s reproduction. In a recent article, “Precarious Moorings: Tying Fetal Drug Law Policy to Social Profiling,” I document the false assumptions and race and class profiling tangled up in legislative efforts to reduce low-birth-weight babies. That’s just one example of inaccuracies parading as facts in political comment and debate on women’s reproduction.

In recent years, politicians have warned women in recovery that they will punish them severely if they become pregnant while continuing to use drugs. In South Carolina, women were reportedly shackled during labor and delivery, carted off to jail while still bleeding from giving birth, and giving birth while in prison. (See here, here, and here.)

The punishments in that state were so severe that Regina McKnight—a rape victim—was convicted for suffering a miscarriage. She was sentenced to 20 years in prison. Nearly a decade later, the South Carolina Supreme Court overturned the conviction. Justice prevailed, but at a significant cost to Ms. McKnight’s dignity, liberty, and freedom.

Akin’s comment illuminates how a predominantly male electorate is shaping the political and regulatory discourse on women’s reproduction. For example, a range of fetal-protection laws are now implemented and variously enforced in 37 states. Many of the laws are overly broad and unusually vague, criminalizing any and all activities that could harm a fetus. Most of these efforts ultimately target pregnant women.

My forthcoming book, Policing the Womb: The New Cultural Politics of Reproduction (Cambridge University Press), empirically details this political movement and its consequences. In one case, Christine Taylor, a woman from Iowa, was arrested for falling down steps during her pregnancy. In another case, an Indiana woman, Bei Bei Shuai, may be sentenced to 45 years in prison for attempting suicide during her pregnancy. In yet another case, a Florida woman, Samantha Burton, was forcibly confined for refusing bed-rest.

Sadly, this is not a new movement. To the contrary, women’s reproduction has been deployed for political sport in other eras. As the bioethicist and legal scholar Paul Lombardo’s elegant work reveals, before World War II, a majority of states adopted eugenics laws, permitting the state to forcibly sterilize women deemed “socially unfit,” as they were thought to burden local economies by birthing “imbecilic” children. Justice Oliver Wendell Holmes Jr. extolled in 1927:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.

Mostly white women suffered that fate. Decades later, states turned to sterilizing black women receiving welfare benefits; hundreds were sterilized in Southern states—many with no knowledge of what had occurred until years later. Then too, politicians were getting tough on women.

Michele Goodwin is a professor of law at the University of Minnesota with joint appointments at the university’s medical and public-health schools.

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