Sometimes I research things other than Ireland. Here are some thoughts on a new law in Kentucky that legalizes rape by a foreign object. –or, rather, institutionalizes rape by a foreign object.
By declining to review a Kentucky law mandating that pregnant women undergo vaginal ultrasounds before they can have an abortion, the Supreme Court has allowed this statute to take effect. This procedure is designed to humiliate vulnerable women, and it also constitutes rape by a foreign object. Kentucky should immediately repeal this misogynistic legislation.
I wrote my doctoral dissertation on sexual assault, and I have read hundreds of historic and current laws that address the actions that constitute rape. And I can say with authority that Kentucky’s vaginal-ultrasound requirement definitely falls under the sexual-assault umbrella in many parts of the world, including the United States.
In a bygone era, rape laws were written narrowly to include only forcible penetration of the vagina by the penis; force was myopically defined to require the use of physical violence. Other types of nonconsensual penetration were included in a different, and lesser, class of crime. Plus, in many places around the world and in many states in the US, sexual activity other than “traditional” penis-in-vagina sex was already illegal in the form of “anti-sodomy” laws. In some places, a rape survivor’s father or husband was compensated for the loss of value of his “property.”
But, in the second half of the twentieth century, states began to give more protections to women, who claimed sexual agency of their own. Sexual assault became a major issue in the 1970s, highlighted by the landmark publication of Susan Brownmiller’s revolutionary book “Against Our Will: Men, Women and Rape” in 1975. Rape within marriage is now illegal in all 50 states (though this crime remains under-prosecuted and difficult to prove in court). Men are now seen as “legitimate” victims of rape. Oral and anal rape are criminal acts. Nonconsensual penetration by an object is also illegal.
We have come a long way in naming the lived experiences of survivors of sexual assaults and in criminalizing the variety of ways in which people use sex as a weapon. Indeed, calling them rape is an important step in itself.
But we cannot be complacent in our belief that lawmakers want to criminalize all forms of forced sexual contact. Indeed, the Kentucky statute legalizes rape.
In Kentucky, women seeking abortions must submit to a vaginal ultrasound. It is not a voluntary procedure, and therefore the ultrasound probe inserted into the vagina constitutes forcible penetration without any type of meaningful consent. Acquiescence to the procedure in this context constitutes a constrained choice. In economics, a constrained choice occurs when a rational actor assesses the best choice in a situation in which her options are “constrained” by a limiting factor. In Kentucky, the woman must choose between having the ultrasound and thus being allowed to have the abortion; or, not having the ultrasound and thus being forced to carry the pregnancy (or resorting to an illegal and unsafe abortion). Thus, the “choice” is not really a choice at all; it is not meaningful or affirmative consent. You don’t have to be Captain Olivia Benson to identify the coercion in this situation.
Moreover, the Kentucky abortion law, by the state’s own legal code, constitutes third-degree sexual abuse, defined as: “Subjecting another person to sexual contact without the victim’s consent,” a class-B misdemeanor. It could also be first-degree sexual abuse, a felony, if the person seeking the abortion is a minor, since the doctor in this situation is an authority figure.
The requirement that the doctor describe the fetus to the woman, and that, if possible, the doctor force the woman to hear the fetal heartbeat, is a disgusting version of paternalism. This requirement assumes that women do not understand the meaning of an abortion, and so the law—written largely by men—steps in to explain (or “man-splain”) to the woman what she is really asking for. This implication is insulting, degrading, and infantilizing.
So, I want to urge Kentucky to prove that this law is not a form of legalized misogyny: the state should pass a new law that requires men seeking erectile dysfunction medications to submit to a formal medical measurement and description of their penises.
Or, Kentucky could do the right thing and repeal the mandatory ultrasound statute.