When pregnancy is an injury: rape, law, and culture.

This Article examines criminal statutes that grade more severely sexual assaults that result in pregnancy. These laws, which define pregnancy as a “substantial bodily injury,” run directly counter to positive constructions of pregnancy within culture. The fact that the criminal law, in this instance, reflects this negative, subversive understanding of pregnancy creates the possibility that this idea may be received within culture as a construction of pregnancy that is as legitimate as positive understandings. In this way, these laws create possibilities for the reimagining of pregnancy within law and society. Moreover, these laws recall the argumentation that proponents of abortion rights once made – argumentation that one no longer hears and sees in the debates surrounding abortion. However, recent developments in antiabortion argumentation – namely the notion accepted in Carhart II that it is abortion that injures women – counsel the retrieval of the argument that unwanted pregnancies are injuries to women. Thus, the sexual assault laws are means to legitimatize a claim that may serve as an effective counterdiscourse to prevailing antiabortion argumentation. The exploration proceeds in three Parts. Part I provides an overview of sexual assault statutes that punish more severely perpetrators who cause their victims to become pregnant and suggests that these laws are worthy of cultural analysis because they define pregnancy as an injury and, as such, are wholly at odds with positive constructions of pregnancy. Part II moves the discussion outside of the context of rape. It contends that the definition of pregnancy as an injury does not solely describe women’s experience of pregnancies that result from rape, but generally describes women’s experience of unwanted pregnancy. Indeed, it is the profound unwantedness of the pregnancy that results from rape that makes it an injury. Thus, the  Associate Professor of Law and Associate Professor of Anthropology, Boston University. I am grateful to Susan Appleton, Kris Collins, Lily Faulhaber, Gary Lawson, David Lyons, Linda McClain, David Seipp, and Kara Swanson for offering incredibly helpful and insightful comments on drafts of this Article. Thanks are also owed to the wonderfully engaged participants in faculty workshops at Boston University School of Law and Northeastern University School of Law, as well as the participants in the Gender, Law, and Policy colloquium at BU Law, where drafts of this Article were presented. Enthusiastic thanks goes to Jennifer Ekblaw in the BU Law Library, who provided truly unparalleled research support. Thanks also to Allie Somers, Rebeccah Judd, and Jack Khavinson, for excellent research assistance. All errors remain my own. When Pregnancy is an Injury 2 criminal law gives legitimacy to a subversive phenomenology of unwanted pregnancy, which may have repercussions for how pregnancy – and abortion – is understood within society. Part III looks at representations of pregnancy in other areas of the law, revealing that the law frequently embodies positive constructions of pregnancy even when negative constructions might be expected. The rare times that the law appears to represent pregnancy subversively are when laws index the social effects of pregnancies. Accordingly, while the law in these instances represents pregnancy as an injury, the injury is to the body politic. Thus, the subversive nature of the representation is mitigated, as it does not endeavor to describe a bodily experience of pregnancy. A brief conclusion follows. When Pregnancy is an Injury 3 TABLE OF CONTENTS INTRODUCTION................................................................ 4 I. DEFINING RAPE .............................................................14 A. The Focus on Physical Injury.............................18 B. The Construction of Legal Injury v. The Legal Construction of Injury......................................21 II. MOVING OUT OF THE CONTEXT OF RAPE: ON WANTEDNESS.........24 A. Unwantedness as the Stuff of Injury, or Abortion Rights Advocacy: Past and Present .....................25 B. Nonconsent to Sex as the Stuff of Injury ...............30 1. The Discomfort of Compromise................33 2. Formulations of Consent ........................34 III. OTHER CONTEXTS.......................................................35 A. When Pregnancy is not an Injury: The Abortion Cases ...............................................................36 B. When Pregnancy is an Injury ... to the Body Politic ................................................................42 CONCLUSION..................................................................55 When Pregnancy is an Injury 4 INTRODUCTION In several jurisdictions in the United States, a rapist who causes his victim to become pregnant commits an aggravated sexual assault; having committed an aggravated crime, he will be subjected to a longer prison sentence relative to his counterpart whose victim does not become pregnant consequent to the rape. The rapist who causes a woman to become pregnant will be treated as if he broke his victim’s leg, gave her severe head trauma, or shot her with a gun. That is, the victim’s pregnancy is treated the same as a broken bone, a concussion, or a gunshot wound. This intriguing result is the product of sexual assault statutes that provide that pregnancy is a “substantial bodily injury” that can aggravate a crime. These laws, which function to construct pregnancy as an injury, are interesting for many reasons, two of which this Article explores in depth. First, the construction of pregnancy as an injury runs directly counter to positive constructions of pregnancy within culture. The fact that the criminal law, in this instance, embodies this decidedly negative construction of pregnancy is important because it creates the possibility that this idea about pregnancy may be received within culture as a construction of pregnancy that is as legitimate as positive constructions. In this way, these laws create possibilities for the reimagining of pregnancy within other areas of law and, ultimately, society more generally. Essentially, this Article uses the event of pregnancy to analyze the dialectical relationship between law and culture. How is pregnancy experienced and understood within culture? How may that experience and understanding come to be reflected within law? How may that reflection, in turn, influence 1 “Culture” is an intensely under-defined concept. See Sally Engle Merry, “Law, Culture, and Cultural Appropriation,” 10 Yale J.L. & Human. 575, 579 (1998) (“Constructing a definition for anthropology’s core concept has always been difficult, but at no time more so than the present. Culture is everywhere a topic of concern and analysis from cultural studies to literature to all the social sciences[,]... suggesting both its significance and its elusiveness as a category of analysis.”). Nevertheless, this Article uses “culture” to refer to an unbounded system in which meanings are created and disputed. See Naomi Mezey, “Approaches to the Cultural Study of Law: Culture as Law,” 13 Yale J.L. & Human. 35, 42 (2001) (defining culture as a “set of shared, signifying practices practices by which meaning is produced, performed, contested, or transformed”). 2 Of course, there is no single answer to this question. Pregnancy is experienced and understood in multiple and contradictory ways. This purpose of this Article is to interrogate how pregnancy may be experienced by women whose pregnancies are unwanted, how that experience may come to be reflected in law, and the significance thereof. When Pregnancy is an Injury 5 experiences and understandings of pregnancy within culture? And the dialectic turns. Second, in constructing pregnancy as an injury, these laws recall the argumentation that proponents of abortion rights once made – argumentation that one no longer hears and sees in the debates surrounding abortion. In decades past, advocates for the abortion right made their case in the language of injury: unwanted pregnancies were injuries to the women forced to bear them. Abortion figured as a healing modality, serving to heal a woman of her injury. This advocacy never quite made it into abortion jurisprudence; as a consequence, the construction of unwanted pregnancy as an injury disappeared from the language of abortion rights activism. However, recent developments in antiabortion argumentation counsel its retrieval. There has been a shift in antiabortion argumentation away from a focus on the fetus and towards a focus on the woman; in this shift, abortion is wrong, not because it harms the fetus, but rather because it harms the pregnant woman. Moreover, the Court in Gonzales v. Carhart [“Carhart II”] accepted this position, upholding a law that restricted access to abortion because it seemed “unexceptionable” for the majority to conclude that “some women come to regret their choice to abort the infant life they once created and sustained.... Severe depression and loss of esteem can follow.” Because the Court accepted as true that abortion harms women, it is reasonable to expect that opponents of abortion rights will continue to advocate in this register. In light of this, the incredible significance of constructing unwanted pregnancy as an injury is revealed: unwanted pregnancy also, literally, harms women. If true, then women bearing unwanted pregnancies are faced with two injuries – the pregnancy itself and the abortion that would end it. Antiabortion activists, and the Court, would need to articulate a basis for compelling women to remain injured (that is, pregnant) in order to protect them from a harm (that is, abortion). Moreover, if unwanted pregnancy is an injury, then perhaps abortion does not harm women but rather heals them. Which is to say, recent developments in antiabortion argumentation counsel the retrieval of the claim that unwanted pregnancies are injuries to women; moreover, the sexual assault laws under analysis are means to legitimize this claim. 3 Sociologist Pierre Bourdieu perhaps most eloquently described the dialectical relationship between law and culture when he observed, “It would not be excessive to say that [law] creates the social world, but only if we remember that it is this world which first creates the law.” Pierre Bourdieu, “The Force of Law”: Toward a Sociology of the Juridical Field,” 38 Hastings L.J. 805, 838 – 39 (1987). 4 550 U.S. 124, 159 (2007). When Pregnancy is an Injury 6 The exploration proceeds in three Parts. Part I provides an overview of sexual assault statutes that punish more severely perpetrators who cause their victims to become pregnant and suggests that these laws are worthy of cultural analysis because they define pregnancy as an injury – a definition that is wholly at odds with positive constructions of pregnancy. Part II moves the discussion outside of the context of rape. It contends that the definition of pregnancy as an injury does not solely describe women’s experience of pregnancies that result from rape, but describes women’s experience of unwanted pregnancy as a general matter. Indeed, it is the profound unwantedness of the pregnancy that results from rape that makes it an injury. Thus, the criminal law gives legitimacy to a subversive phenomenology of unwanted pregnancy, which may have repercussions for how all unwanted pregnancies – not just those resulting from rape – are understood within society. Part II also notes the significance of this argument in light of recent claims made by antiabortion activists that abortion harms women. Part III looks at representations of pregnancy in other areas of the law, including constitutional law and statutory law. While this canvass of the law is not meant to be exhaustive, it reveals that the law frequently embodies positive constructions of pregnancy. This is true even when negative constructions might be expected – as when the Court interprets the Constitution to provide for a woman’s right to terminate a pregnancy. The rare times that the law represents pregnancy subversively are when laws index the social effects of pregnancies, i.e., the taxing of government coffers to support the children and the families produced by pregnancy. Accordingly, while the law in these instances represents pregnancy as an injury, the injury is to the body politic. Thus, the subversive nature of the representation is mitigated, as it does not endeavor to describe a bodily experience of pregnancy as an injury. This Part’s canvass demonstrates that it is a rarity for the law to embody a strictly subversive construction of pregnancy (i.e., one that focuses on a phenomenology of pregnancy as an injury), suggesting the exceptionality of the sexual assault statutes at issue. A brief conclusion follows. Before beginning the exploration, however, it is necessary to lay out in some detail just what is meant by the phrase “positive construction of pregnancy”: the positive construction of pregnancy may be described as hegemonic, 5 insofar as it is a persuasive 5 This Article uses “hegemony” in the sense offered by philosopher Antonio Gramsci, who defined it as an ideological domination of society – where culture and cultural institutions reflect the ideas of those in power and, as a result, the dominated consent to their domination. See Antonio Gramsci, Letters from Prison, vol. 2, 67 (ed. Frank Rosengarten 1994) (defining hegemony as dominance “of a When Pregnancy is an Injury 7 understanding of the event that has achieved its persuasiveness through cultural institutions such as law, religion, and the media. This construction holds pregnancy to be a wonderful, life-affirming, overwhelmingly good event in the life of the woman (and her family, nation, and, ultimately, species). The beautiful – almost beatific – aspects of pregnancy are captured in a passage from the French novelist Colette’s L’Etoile Vesper: Insidiously, unhurriedly, the beatitude of pregnant females spread through me .... This purring contentment, this euphoria – how give a name either scientific or familiar to this state of preservation? – must certainly have penetrated me, since I have not forgotten it and am recalling it even now, when life can never again bring me plentitude. Indeed: positive constructions of pregnancy recognize the magnificence of pregnancy as distinct from the magnificence that infants may represent and embody: Pregnant, we know god,
 this presence inside us
 which protects us
 yet makes us vulnerable. My baby flowed out around me
 protecting me
 in her own radiance
 for nine whole months. I was never alone.
 I did not fear death.
 The baby within 
 & the spirit without 
 were one, social group over the entire national society, exercised through the so-called private organizations, such as the Church, the unions, the schools”). While this Article describes the positive construction of pregnancy as hegemonic, it admits that this description may be ambitious. This is because, in line with Gramsci’s formulation of hegemony, the dominance of any construction of pregnancy will depend upon “those in power.” Id. This is, surely, a shifting constellation. Nevertheless, it is safe to say that the positive construction of pregnancy is presently dominant within law, which Part III endeavors to demonstrate. 6 Colette, L’Etoile Vesper, quoted in Judith S. Musick, Young, Poor, and Pregnant: The Psychology of Teenage Motherhood 107 (1993). When Pregnancy is an Injury 8