Abortion as Self-Defence Part I: The Rape Comparison

Abortion as Self-Defence, Part I

The Rape Comparison

Content warning: I extensively discuss aspects of rape in the following post. It may cause distress to some people. If you or someone you know has been the victim of sexual assault, you can find a listing of Australian services here.

The Argument:

Unwanted pregnancy is the non-consensual of someone’s body which can only be ceased through lethal force towards the unborn child. This can be considered self-defence, just as lethal force towards the perpetrator of a rape is self-defence against non-consensual use of someone’s body (and is considered justifiable).

Self-Defence

Self-defence is generally taken to be defending oneself, one’s property or another person from injury. The criteria for self-defence is outlined in the South Australian Criminal Consolidation Act 1935, and summarised by the Legal Services Commission of South Australia:

“A person is entitled to use such conduct as he or she genuinely believes is necessary for a ‘defensive purpose’ (that is, in self-defence or in defence of another, or to prevent or end an unlawful imprisonment) under s 15 Criminal Law Consolidation Act 1935. This will be a complete defence to an offence, including murder, as long as the force used was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat the defendant genuinely believed to exist (for example, see Zecevic v DPP (1987) 162 CLR 645).

It will be a partial defence to murder, reducing the offence to manslaughter, if, despite the defendant believing his or her actions were necessary, the conduct was not reasonably proportionate to the threat that the defendant believed existed.”
[Emphasis mine]

The question to ask, therefore, is whether or not abortion – the killing of the unborn child – is a reasonably proportionate response to the ‘threat’ of pregnancy. To advance the concept that it is, unwanted pregnancy is often compared to rape, where self-defence using lethal force is considered by many to be justifiable.

The concept of reasonable proportionately can be explored from many angles, but given the above, I have chosen to look at it be comparing and contrasting unwanted pregnancy to rape, and therefore hopefully showing that they are not analogous and an argument for lethal self-defence in the case of one cannot be equally applied to the other.

Comparison 1: Basic Premise of Non-Consensual Use

  • Rape involves non-consensual use of someone’s body (by the rapist).
  • Unwanted pregnancy involves non-consensual use of someone’s body (by the unborn child).

This is a fair comparison, although it is worth having a look at the issue of consent and unwanted pregnancy, which I explored in an earlier post. What is not a given, however, is that non-consensual use of someone’s body is sufficient grounds for lethal self-defence. It is not difficult to think of instances where non-consensual use of someone’s body does not provide sufficient grounds. For example, if a child seizes my hand on a train platform, and cannot be persuaded or forced to relinquish their grip unless I push them into the path of an oncoming train, this is yet unacceptable – at least, I hope you find it so – even though it falls into the category of lethal self-defence in response to non-consensual use of my body. If a stranger on a balcony trips and grabs my arm in order to prevent a fall to their death, and cannot be persuaded or forced to let go (and plummet to their death) unless I kill or severely injure them, this is yet unacceptable – again, I hope you find it so – even with the lesser concept of non-lethal self-defence.

Thus we cannot consider the basic premise of non-consensual use of someone’s body as sufficient ground for lethal self-defence in and of itself. Hence there must be other nuances present that enable us to judge the reasonableness of the response.

Comparison 2: Legal Definition

  • To be legally rape, the action of the perpetrator must fulfil the conditions of mens rea and voluntariness.
  • In unwanted pregnancy, the unborn child exhibits neither mens rea nor voluntariness.

Mens rea is Latin for ‘guilty mind’ and refers to the intentions of the perpetrator. According to South Australian law:

“(1) A person (the offender) is guilty of the offence of rape if he or she engages, or continues to engage, in sexual intercourse with another person who—
(a) does not consent to engaging in the sexual intercourse; or
(b) has withdrawn consent to the sexual intercourse,
and the offender knows, or is recklessly indifferent to, the fact that the other person does not so consent or has so withdrawn consent (as the case may be).”
[Emphasis mine]

The South Australian law is expanded upon by the Australian Institute of Family Studies, an Australian government research body, which says that:

“The defendant intended to do the physical act, and the defendant was aware that the victim was not consenting, or was reckless towards whether or not the victim was consenting. It is not enough for the complainant to know in themselves that they do not consent – the defendant must have knowledge of this non-consent to be considered legally guilty.”
[Emphasis mine]

It should be abundantly clear, should it not have been already, that the unborn child is incapable of mens rea and therefore unable to be considered guilty of illegal action in implanting within the uterus.

The Australian Institute of Family Studies states the following regarding voluntariness:

The defendant’s actions cannot have been involuntary. Involuntary actions may include: reflex actions; sleep walking; or being in a state of altered consciousness.”
[Emphasis mine]

Again, it should be very clear that the unborn is not causing the unwanted pregnancy voluntarily, and therefore this differs again from what would legally be considered rape.

Self-defence is judged on “the threat the defendant genuinely believed to exist”, and therefore cases of rape that would not necessarily fit the legal definition may still be sufficient grounds for lethal self-defence. However, there can be no mistaking the involuntary and unintentional nature of the actions of the unborn child. In other words, given our knowledge of the prenatal development, and also the process that a woman needs to go through in order to obtain an abortion, there is no ‘heat of moment’ excuse in which she could claim that she misunderstood the intent and purpose of the unborn child. Unlike rape, unwanted pregnancy would need to be justified as a ‘threat’ apart from criminal grounds.

In the next post, I will be looking at further comparisons that will highlight the differences between unwanted pregnancy and rape, and exploring the implications for self-defence.

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Bodily Integrity and Abortion Part III: Consent to Pregnancy

Consent To Pregnancy

(Although this was originally intended to be a three-part series, I will be writing one more post to address Judith Jarvis Thompson’s famous violinist analogy)

“Consent to sex is not consent to pregnancy.”

If you’ve been challenged by the above statement, then I hope you’ll find this blog post helpful.  In it, I’ll discuss why I think consent is not actually a relevant concept in the specific case of pregnancy.

 1. Pregnancy is an outcome, not an action.

Put simply, you are able to consent to actions, but not to outcomes. For example, you may need cataract surgery, which carries a 0.7% risk of retinal detachment. If you give your consent for the surgery to be carried out (the action) and then develop a detached retina (the outcome), it is superfluous to insist that you did not give your consent to this outcome. You cannot sue the surgeon on the grounds that you did not consent to a retinal detachment. Your consent to the surgery indicated your acceptance of the known risks of that surgery. Likewise, consent to sex is not consent to pregnancy, but it is consent to an action where pregnancy is a possible outcome. In essence, you accepted the risk of pregnancy when you consented to place yourself in the situation where pregnancy was forseeable. This acceptance of risk applies equally to men and women, as is seen in the legal obligation of the father to support his offspring.

However, if an unfavourable outcome occurs, we do endeavour to correct that outcome. In the example of retinal detachment following cataract surgery, the patient would have the option of undergoing further treatment in order to correct the problem. So the suggestion could be made that, as laser surgery is to retinal detachment, so abortion is to pregnancy. When pregnancy occurs, it is corrected by undergoing an abortion.

In answer to this, I would say that in correcting the unfavourable outcome, we have an obligation to do so in a manner that results in a minimum of harm, and does not violate the rights of another. In the case of the patient with retinal detachment, they may have laser surgery, but they may not kidnap another person and remove their eyes to use for themselves (imagining that whole-eye transplants were possible). A less fantastical example would be that if I gambled (the action) and lost my money (the outcome), I may not resolve my debt by killing my debtor, no matter how much mental anguish or financial pressure I was under.

Taking responsibility for the outcomes we create by consenting to place ourselves in situations where there is risk of those outcomes, means resolving things in a way that minimises the adverse effects to other people, even if it means taking these effects onto ourselves to some degree. Therefore abortion is not an appropriate resolution of pregnancy, as the harm to the foetus is maximised rather than minimised, and its human rights are undoubtedly violated.

It’s worth noting that if pregnancy was not an interruptible process, consent would likely not even be worth discussing.  For example, we don’t talk about consent for the process of digestion, even though it follows an action that we are able to consent to (the consumption of food).  Also, as with any risk, steps can be taken to minimise that possibility of pregnancy.  Barrier methods, such as condoms or diaphragms, and avoiding sex during the woman’s fertile times, can be used in an effort to prevent conception.  However, as both sides of the abortion debate tend to agree, contraceptive methods are not 100% effective.  So the risk of pregnancy may decrease, but it is still present and still needs to be acknowledged as a possible outcome.

 

2. Requiring pregnancy to have ongoing consent redefines it as assault, with all the implications.

Pregnancy is the use of your body by another person. Unwanted pregnancy is the use of your body by another person without your consent. The normal term given to a situation where your body is used without your consent is assault; in the context of pregnancy, I will refer to it as pregnancy-assault.

Imagine now that we are talking about a man and a woman in a long-term, but rocky relationship. Even though the implication of a long-term relationship is that sex is mutually consensual, there are times when the woman does not wish to have sex. Consider the following situations:

  • The man requests sex and the woman says no. He persists and eventually forces her to have sex.
  • The woman has drunk too much alcohol and is unconscious on the bed. The man has sex with her before she regains consciousness.
  • The woman agrees to have sex and engages in foreplay, but loses consciousness before intercourse commences. The man continues, and has sex with her before she regains consciousness.
  • The woman has not lost consciousness, but is drunk to the point of incoherence. She does not resist when the man begins to have sex with her.

In which of these situations did assault take place? I hope you will agree with me in saying that assault took place in every situation. It should be clear that in a situation where consent is either withheld or unable to be given, any actions that proceed are non-consensual and are assault. Imagine again that any of the above situations are taking place, but you have the opportunity and the capacity to intervene. Should you? I would argue that you have an obligation to intervene; that to stand by would be morally untenable.

Now consider the following situations:

  • A woman is pregnant. She does not wish to be.
  • A woman is pregnant and unconscious. Her attitude towards the pregnancy is unknown.
  • A woman is pregnant and unconscious. Prior to falling unconscious, she had expressed her willingness to be pregnant.
  • A woman is pregnant and hospitalised after suffering an adverse reaction to medication. She is incoherent and does not appear to understand what is happening around her.

If pregnancy requires ongoing consent that may be withdrawn at any time, then a woman in any of the above situations is experiencing an assault. If a doctor has the opportunity and the capacity to intervene by performing an abortion, should he? The logical conclusion is that he should, however counter-intuitive this may seem.

Perhaps the idea of pregnancy as assault seems too extreme to be concerned about.  But this is exactly what Elaine McDonagh argues in her book (emphasis mine):

“Even in a medically normal pregnancy, the fetus massively intrudes on a woman’s body and expropriates her liberty. If a woman does not consent to this transformation and use of her body, the fetus’s imposition constitutes injuries sufficient to justify the use of deadly force to stop it. While it is not usual to think of pregnancy as an injury, that is exactly how the law already defines it when it is imposed on a woman without her consent. For example, when men or physicians expose women to the risk of pregnancy by means of rape or incompetent sterilization, and a pregnancy follows, the law clearly establishes that women have been seriously injured. The term the law uses for such a coerced pregnancy is wrongful pregnancy, and the law holds the perpetrators responsible for the injuries entailed by it. This book expands the concept of wrongful pregnancy to include what the fertilized ovum does to a woman when it makes her pregnant without her consent. It is the only entity that can make a woman pregnant, and when it does so without her consent, it imposes the  serious injuries of wrongful pregnancy even if the pregnancy in question is medically normal. . . . [T]o the extent that the law protects the fetus as human life, the law must hold the fetus accountable for what it does.”

(Quote taken from Beckworth & Thomas 2003)

I considered some arguments that dispute the comparison I have made between sexual assault and the condition of pregnancy, should ongoing consent be required.

It probably wouldn’t cause the woman any harm to remain pregnant until her consent is ascertained.

If this were true, the doctor is not under an obligation to immediately intervene.  However, if we accept this, we could also be argue that it probably wouldn’t cause the woman in the first set of scenarios any harm to let her partner have sex with her, and then ascertain her consent after the fact.  Since this is clearly unacceptable, it should also be unacceptable not to intervene in the case of a pregnancy-assault.

Aborting a wanted pregnancy would cause considerable trauma.

To be on the safe side and avoid this possibility, the doctor should not intervene.  But when we go back and consider this in the context of the first set of scenarios (and here we might add to them, and state that your intervention would result in considerable harm to the man – say he becomes extremely aggressive and rushes at you, requiring you to defend yourself and grievously injure him in the process) considerable trauma could also be caused to the woman in these cases, depending on the manner and outcome of the intervention.  Would this justify standing by and potentially allowing a rape to take place?  If not, then it would not justify standing by and potentially allowing a pregnancy-assault to take place.

An unwanted abortion would violate a woman’s bodily integrity.

Intervening in a potential rape would also likely involve violating the bodily integrity of the woman.  If it eventuated that the sex was actually consensual, you would have prevented her from doing with her body what she would have chosen, and therefore you have violated her bodily integrity.  If it was indeed rape, then the intervention was justified, but cessation of the act of rape could still have required violation of the woman’s bodily integrity, i.e. the need to touch her in order to prevent the assault.  If this is not a sufficient reason for not intervening in the potential rape, it is not a sufficient reason for not intervening in a potential pregnancy-assault.

Clearly, our intuition in this should be that we should certainly not perform abortions on unconscious pregnant women.  But if we are to construe pregnancy as assault, this seems an inescapable conclusion.  I hope, therefore, that you can see the problem with requiring ongoing consent to pregnancy.

 

To conclude, and to paraphrase my opening statement: “Consent to sex is consent to accept the risk of pregnancy”, or – even more specifically – “consent to sex acknowledges the possibility of pregnancy and accepts responsibility should it occur.”  It is not practical or relevant to require explicit consent to pregnancy.

 

I welcome feedback. If you have any comments or questions, whether you agree or disagree, I would be delighted to hear from you.