H.R. 3: A frightening affront to rape survivors

Editors Note: Readers are advised that this article contains discussions of the circumstances of rape.

Given the great deal of garbage that our country is dealing with at the moment, you might think that our new Speaker of the House would prioritize the issues that press most fervently on the hearts of Americans. Instead, John Boehner (R-Ohio) has declared that the passing H.R. 3 is of “critical” importance and “one of our highest legislative priorities.” What is H.R. 3, you ask?

It is the No Taxpayer Funding for [Job-Killing] Abortion Act, and it seems on the surface as though it wouldn’t actually change much of anything with regard to U.S. health care policy. After all, the Hyde Amendment, which has been dutifully renewed every year since 1976, has effectively prevented taxpayer monies from paying for abortions, with the exception of pregnancies that would endanger the life of the mother or those that result from rape or incest.

However, H.R. 3­ — sponsored by Rep. Christopher Smith (R-NJ) and cosponsored by 173 House members — would not only codify the Hyde Amendment, but also redefine what rape is in the eyes of the law. According to the bill, no federal funds can be used for an abortion as a result of rape or incest unless “the pregnancy occurred because the pregnant female was the subject of an act of forcible rape or, if a minor, an act of incest” (Sec. 309).

Allow me to explain the implications of this monstrous piece of legislation. First, notice the “if a minor” aside. This means that victims of incest that are 18 or above do not qualify. This stipulation is utterly nonsensical. What changes morally between an incest survivor who is a minor and one who is a legal adult that would force the latter to carry their pregnancy to term?

Of special concern for parents is the fact that statutory rape is not included in this designation. If a 20-year-old “has sex with” a child seven years his junior and a pregnancy results, it does not count as rape to Rep. Smith and his cosponsors; the child must carry the pregnancy to term.

Further, the language specifically designates the pregnant person as “female.” While many probably do not see the issue with this phrasing, it is incredibly important for trans persons who all too often see their identities diminished, distorted, or erased in the dominant culture. To have language that excludes trans men codified into law perpetuates this theme.

The remaining portion of this clause — the part dealing with “forcible rape” — has what are widely believed among feminists to be the most dangerous implications. Consider the 1995 case of Commonwealth v. Berkowitz, in which a college sophomore went to her boyfriend’s room only to find his roommate. The defendant locked the door to keep others out, made repeated sexual advances toward her, removed her shirt and bra and fondled her while she repeatedly said, “No, no.” The defendant proceeded to undress her, move her to the bed, spread her legs apart — while the girl continued to voice her objections — and penetrate her until he ejaculated. Following the ordeal, the girl immediately rushed downstairs, found her boyfriend and called the police.

The Pennsylvania Supreme Court found that “the degree of force required to constitute rape is relative and depends on the facts and particular circumstance of the case” and the defendant was found not guilty. This is the society that we live in: one in which lack of consent, which logically counts as rape, does not necessarily legally count as rape. The fact is, the overt or threatened use of physical force is not used nearly as much as is culturally depicted or expected. In one study of rapists who had never been prosecuted, as little as 17 percent of rapes involve such tactics (Lisak and Miller, “Repeat Rape and Multiple Offending Among Undetected Rapists”).

The mere fact that a man has shown that he is willing to penetrate you against your will is often enough for many women to be convinced that he is capable of much worse. Silence or complicity is all too frequently the price women are willing to pay to avoid the risk getting severely injured.

All this goes without mentioning the prevalence of using coercion and drugs — more often than not alcohol — to get a woman to acquiesce to a man’s desires. Drugs are used in the vast majority of all rapes, but none of them would be considered “forcible rape” under the new law. None would receive the rape “Seal of Approval” from the government. Essentially, none of them would be rapes that matter. Representative Chris Smith and his supporters would have us ignore one of the most culturally endemic sources of violence against women. In a culture that already defends rapists at the expense of their victims, this can only serve to further discourage people from seeking justice for the crimes committed against them.

We should not be surprised, given the societal norms that dictate that women can dress “like they’re asking for it” (hint: no one asks to be raped), and that women “need to be careful when they go out drinking” (the onus is not on women not to get raped, but on men not to rape), and that it’s acceptable to “get her drunk” in order to lower her inhibitions (and also remove her ability to consent to sex).

It is these norms that result in an incarceration rate of 6 percent for rapists, according to the Rape, Abuse and Incest National Network. An overwhelming majority of rapists will walk free, all too often to repeat the crime. These are the consequences of trivializing and stigmatizing sexual violence. If you think this is hogwash — and certainly no one thinks rape is a joke! — I merely point to the comedian who jokes endlessly about prison rape. I point to any given 13-year-old on X—Box Live (you did what to your opponent?). I point to the athlete whose career is deemed too important to be ended by a sexual assault conviction (witness Ben Roethlisberger, with whom Sgt. Jerry Blash, the initial investigating officer in the second sexual assault allegation against him, posed for pictures the night of the incident). And I point to 14-year-old Samantha Kelly, who after accusing 18-year-old Joseph Tarnopolski, a senior at her high school who admitted to statutory rape, of sexual assault was harassed so mercilessly by her schoolmates that she was driven to take her own life.

These things do not happen in a cultural vacuum. They are the cause and consequence of an environment that may at first appear to abhor sexual violence, but in fact covers it up with a hush and a warning to all victims: keep quiet or else.

But all this does not mean we should not protest. It’s as easy as a two-minute phone call to your representative’s office. Let them know that they are being watched and that you will not stand for this egregious affront to the rights of rape survivors. Regardless of your stance on abortion rights — indeed, my own opinions are not at all well-defined — hopefully you can see why it is everyone’s responsibility to combat the cumulative effect of each excuse our society makes for rape.

Editor’s Note: As of Thursday, Feb. 3, GOP sponsors of H.R. 3 dropped the word “forcible” from the bill.

1 Comment
jeanette friedman about 12 years ago

the word forcible was reinserted into HR3, is in HR 217 and HR 358.

Read the statutes in NJ. If you are over 18 and conset to screw your mommy or daddy, it's ok with the law as written--unless it's sexual assault. I am waiting for legal clarification on this.