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View Diary: The state of Virginia about to rape women, legally (63 comments)

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  •  The issue is: "bona fide medical purpose"? (1+ / 0-)
    Recommended by:
    OldDragon
    •  That issue matters, but it is secondary (0+ / 0-)

      (at least if the woman is 13+) to paragraph #2.

      There's no way this would be considered non-consensual, and certainly not a result of "force, threat, or intimidation" as those terms are used. I would think it would even be tough to prosecute an "honest" date rape under that statute.

      Given that even thoughtful people here are calling this rape, do you think providers will be performing these procedures without getting informed consent? Maybe the true butchers, but not your usual abortion provider.

      More interesting question -- what if there's no complaining witness? I don't know VA law -- can the state proceed anyway, or is there a separate statute that applies?

      •  Actually I think being told that if you don't have (6+ / 0-)

        the ultrasound, you have to have the child is precisely threat or intimidation--at least to the women here. If you don't want to have this procedure, don't NEED this procedure but must have it because you are threatened with not getting the abortion, how is that not threat or intimidation?  

        The last time we mixed religion and politics people got burned at the stake.

        by irishwitch on Wed Feb 15, 2012 at 10:59:26 AM PST

        [ Parent ]

        •  It's absolutely experienced as such, I'm sure. (0+ / 0-)

          It just wouldn't meet the legal standard. Under this statute, I don't think the state could even prosecute many "date rapes" (ugh) -- perhaps because VA doesn't want to.

          It's not quite as bad as the definition that was being pushed in Congress last year, but it's pretty bad.

          An imperfect analogy: My mother's orthopod wouldn't do her hip replacement surgery -- which she desperately needed -- unless she agreed to first undergo a cardiac test (probably an echo, but I don't recall). She had just had the test a few weeks before, and didn't want it again, but it was that or no hip replacement. (Very imperfect analogy because the other procedure was noninvasive and, while probably not medically necessary, medically defensible. But the same deal -- if you want me to do X, you have to do Y.)

          If she charged/sued the cardio or radio guys for battery, that level of "intimidation" would not be sufficient to overcome the defense of consent. Again, I'm assuming that in all these cases the provider would be requiring signed informed consent forms. Criminal law isn't my area, so I'm open to being corrected, but these discussions seem to be more along the lines of what we think the law should be rather than what it is.

          All that aside -- and I don't minimize the outrageousness of this -- strategically it just seems dumb to claim that the provider you're asking for help is raping you. If you could charge McDonnell or the legislators, I'd be all for trying to redefine duress to capture this, but that's implausible at best.

          On the other hand, if we're using the term "rape" in the same nonliteral sense we say the judicial system "rapes" victims again in sexual assault trials, I'm in complete agreement.

          I'm walking out the door, so if I miss any replies now, I will be back later.

          •  Huge difference there: (4+ / 0-)

            A good claim could be made that the cardio test was medically necessary. The ultrasound, especially this form in very early pregnancy where you must use the transponder because the  fetus is so tiny, not really.

            The last time we mixed religion and politics people got burned at the stake.

            by irishwitch on Wed Feb 15, 2012 at 12:14:50 PM PST

            [ Parent ]

            •  Yes. I acknowledged the difference. (1+ / 0-)
              Recommended by:
              Clytemnestra

              Yours is a very good argument for why it's a bad law, a view I share. Lack of medical necessity may even be a good argument for an action by the medical providers to have its enforcement enjoined, an action I would support.

              The argument does nothing to negate the consent defense. (And again, I am talking about actual criminal rape, not something metaphorical.)

              I see upthread and through the update that the discussion has reverted to the one had when another state passed the same law. I understand the "fingers crossed" argument that consent is not really consent. I disagree with it as a legal matter, but I have no need to argue it -- in fact, I'd be happy to be wrong.  

              If people think that charging their medical providers with rape is a good legal or political strategy, OK. I imagine it would be the end of abortion in Virginia, and I imagine that would make McDonnell very happy.

            •  P.S. The lack of medical necessity, (1+ / 0-)
              Recommended by:
              Clytemnestra

              the invasiveness of the procedure, the cost (assuming it is imposed on the patient), and the particular horror it poses for rape victims might well support a finding that it imposes an undue burden on a woman's right to obtain an abortion. That seems to me to be a much preferable strategic response to the law, and one that the Fourth Circuit, which has in recent years tipped in the Democratic direction, might well accept. (But no one's paying me for my advice in these cases, so I'm not up to date on 4th Cir. law.)

              •  No one here is sugesting thst be the grounds (1+ / 0-)
                Recommended by:
                Clytemnestra

                for overturning the law. They're stating how it feels--and, frankly, I think that's how the assholes want us to feel: if you want an abortion, you're a slut, so expect to pay  the price on your backs. It will feel like a rape to every desperate yopung woman who has to undergo this procedure is she sensibly tries to get an early first trimester abortion--because this is the time when they will need a  trandsucer to do the ultrsound; the fetus is too small to be seen at that point.

                The last time we mixed religion and politics people got burned at the stake.

                by irishwitch on Wed Feb 15, 2012 at 10:18:14 PM PST

                [ Parent ]

                •  I agree with every word you say about the (0+ / 0-)

                  feelings of women subjected to this and about the legislators' motivations, but that wasn't the subject of the comment that began this thread. The initial comment was a Virginia statute. It wasn't about feelings. My responses concerned that statute and the claim that an unwanted transvaginal ultrasound constitutes the crime of – not "feels just like" – rape.

                  I was fooled by citations to statutes, FBI definitions, and assertions about the meaning of "consent" into thinking that people making legal claims were inviting legal discussion. Silly me. We both oppose these laws, so I’ll leave it at that and let the emoting roll on.

                  •  it's not that it feels like - it is rape because (0+ / 0-)

                    consent isn't consent if it's coerced and it doesn't matter who does it state or individual ... coercion is still coercion

                    the law also once said that a man could not rape his wife .. saying "I do" was implied consent

                    but marital rape is now recognized

                    it's an invasive procedure that inserts something into the vagina .. with coerced consent .. it's rape

                    feels like has nothing to do with it

                    it would also be rape if the government  use coerced consent for colonoscopy for men to get medication.

                    Bumper sticker seen on I-95; "Stop Socialism" my response: "Don't like socialism? GET OFF the Interstate highway!"

                    by Clytemnestra on Thu Feb 16, 2012 at 06:11:04 AM PST

                    [ Parent ]

                    •  As I stated upthread, I understand the argument. (0+ / 0-)

                      I just don't agree with it.

                      Since you're making a legal argument, we'll eventually see whether opponents of the law use it successfully. I'll be the first to applaud if they do.

                      I think this has run its course, but again I thank you for posting the photos & description of the procedure. Too many issues don't get fully explored because they're too "icky" for the media, making for bad health care and bad policy.

                      Cheers.

                •  I agree, "if you want an abortion, we get to rape (0+ / 0-)

                  you first. "

                  it's legal but we are going to make you pay a high emotional price for it.

                  It will feel like rape to ANY woman, regardless of age and probably especially like rape to older woman who may have been the victim of rape before.

                  I really don't want to hear them talk any more about how moral we are compared to the forced sterilizations in China ... we are allowing and voting in state sponsored rape.

                  Bumper sticker seen on I-95; "Stop Socialism" my response: "Don't like socialism? GET OFF the Interstate highway!"

                  by Clytemnestra on Thu Feb 16, 2012 at 06:05:04 AM PST

                  [ Parent ]

      •  Forget my question about complaining (0+ / 0-)

        witnesses. I'm interested, but it's OT here and I don't want to digress.

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