Redefining Rape, and Other Pressing Matters

It’s important to get going on legislation early in a session of Congress since there’s so little time for people to work. January has 21 days in which Congress could work if it chose, but members of the House of Representatives were in session for only 11 of those days. The days they were not in session they were off doing important things like not being in Washington.

Representative Joe Walsh, a newly elected Republican Congressman from Illinois explained it well when discussing why he sleeps in his office saying: “I think it’s important that we show we don’t live here, we are not creatures of this town . . . .I don’t want to live in this town. I want to be home all the time.” Working for only 11 days helped him meet his goal.

The first thing the House did was to vote to repeal the health care law. That was House Bill 1. Less noticed was House Bill 3 that would redefine rape for purposes of addressing funding for abortions. It is hard to underestimate the importance of this legislation. At a time when Republicans have promised to address pressing issues that have been ignored while Democrats ruled the roost, it is comforting to see that there will still be time to address issues that no one knew were pressing but clearly are to some members of the House. Redefining rape is one of them.

It is not as pressing an issue as it would be if the dreaded Sharia law that Oklahomans bravely tried to outlaw were part of our national culture. Under Sharia law in some countries, a woman who claims to have been raped may find that instead of the perpetrators being charged with a crime she may be charged as an adulteress and stoned to death. If the United States had that kind of a law it would be easy to understand why Representative Chris Smith of New Jersey believed the issue so important as to warrant being the third piece of legislation introduced in House. Of course, Shariah law does not obtain in the United States and there was not an obvious reason to try to redefine rape for purposes of federal law this early in the session.

House Bill 3 is called the “No Taxpayer Funding for Abortion Act. Its sponsors appear to include most of the Republican members of the House of Representatives including the two Mr. Kings, the one from New York who is going to hold hearings on the evil posed by Muslims in our society and the Iowa Mr. King who wants to deprive children born in the United States to illegal immigrants, the citizenship guaranteed them by the 14th Amendment to the United States Constitution.

Mr. Smith’s goal is to make it harder for women who have, for example, become pregnant because of a date rape, to obtain abortions unless they can pay for them themselves. In addition to the usual proscriptions about paying for abortions Mr. Smith’s bill adds additional restrictions on how abortions are paid for. If money in a health savings account is used to pay for an abortion, the amount spent is to be taxed as income to the patient. Medical expenses incurred in an abortion cannot be deducted on a tax return as medical expenses and money paid into a health benefit plan that includes abortion coverage cannot be deducted on the individual’s tax return. Those are just a few of the restrictions proposed by Mr. Smith. Exceptions to the foregoing are made if the “pregnant female was the subject of an act of forcible rape or, if a minor, an act of incest.” There is also an exception for health related abortions.

In responding to the president’s State of the Union speech, Michelle Bachmann complained that we have a bureaucracy that “tells us which light bulbs to buy.” That does not prevent her from supporting legislation that tells “pregnant females” what rights they have with respect to their bodies. Insofar as Ms. Bachmann and her colleagues are concerned, those women’s bodies are fair game for the drafters of the legislation.

The bill does not attempt to define “forcible rape, ” leaving open to question whether the victim must prove that she gave her assailant a black eye to prove that the rape was forcible.

David Bryden was a professor at the University of Minnesota law school when he wrote an article in 2009 titled “Redefining Rape.” In the introductory paragraph he says that: “The new consensus is that the very definition of rape reflects patriarchal attitudes that deny justice to victims of sexual coercion.”

If House Bill 3 had been introduced at the time he wrote his article he would probably have wanted to add a footnote inviting the reader to look at House Bill 3 as an example of this. Mr. Smith might want to read the article. It would provide an insight he and 172 of his fellow House members are obviously lacking.

CHRISTOPHER BRAUCHLI can be emailed at brauchli.56@post.harvard.edu.



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