Rape in Kentucky

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.

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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.

Fiftieth Anniversary of the Provisional IRA

If you look around, you might notice that the Irish seem to be everywhere today. As someone who has spent her entire adult life studying the history and politics of this small island in the north Atlantic, I can’t help noticing the ads on Netflix for the popular series Derry Girls about five teenagers living in the midst of political violence in Northern Ireland. In 2018, an Irish author, Anna Burns, won the prestigious Booker Prize. U2 is on tour again almost 40 years after the release of their first album. 

As a historian, I ask you to pay attention to the date. December marks the 50th anniversary of the advent of the Provisional Irish Republican Army (IRA). It comes as the drama of Brexit has stoked tension in Northern Ireland, which may result in renewed political violence. As a result, this occasion is an apt time at which to look back on the legacy of the IRA’s nearly 30-year “armed struggle” to force the British government off the island of Ireland. During this period, euphemistically known as the Troubles, over 3,500 people lost their lives to violence. 

Today, as our thoughts turn toward this anniversary, we should also take note of a troubling trend: the rewriting of history for personal and political ends. I have spent a great deal of time considering the question: what, if anything, did the IRA accomplish? An honest appraisal of the IRA must conclude that the paramilitary failed to achieve its goal, and Sinn Féin’s leaders have rewritten history in an effort to bolster the political fortunes of its leaders. 

The Provisional IRA emerged in December 1969 in order to defend the Catholic/nationalist community against repeated assaults by the forces of the British government and by loyalist citizens. Catholics were an oppressed class in Northern Ireland, a state that had been carved out of the island in 1920 in order to institutionalize a Protestant majority that would have been a small minority in a 32-county Irish republic. But the defensive modus operandi soon changed to an offensive strategy.

IRA leaders believed that a blitz of violence and destruction would break the resolve of the British government and it would withdraw from Northern Ireland. What was supposed to be a short “war,” however, turned into a decades-long “armed struggle” of attacks and reprisals. Britain accidentally stoked IRA membership by committing a series of inexcusable assaults on the nationalist community including “Operation Demitrius” in 1971, in which 342 Catholics were arrested and interned without trial, and “Bloody Sunday, 30 Jan. 1972, when paratroopers killed 14 unarmed protesters in Derry. On the IRA’s part, on Bloody Friday, 21 July 1972, the paramilitary set off 22 bombs in Belfast, killing nine people and injuring 130. On 23 Oct. 1993, an IRA bomb in the heart of Protestant West Belfast killed 10 people and injured dozens more. These atrocities are only a small sampling of the brutality of the Troubles.

The Good Friday Agreement (GFA) of 1998 ended the Troubles and came as a relief to a country that was weary of funerals and fear. With the tireless help of US Senator George Mitchell, the leaders of the two largest political parties in Northern Ireland, David Trimble of the Ulster Unionist Party (UUP) and John Hume of the Social Democratic and Labour Party (SDLP), forged an agreement to share power, foster equality, and establish consent as the only means through which the British would withdraw from Northern Ireland. Sinn Féin, then the political wing of the IRA, signed on to the Agreement, including the requirement that the IRA decommission its weapons. The “war” was over, and the IRA had not achieved its stated goal.

Then the rewriting of history began.

Gerry Adams and his supporters have promoted a story in which he is the hero of the peace process in Northern Ireland. Adams became president of Sinn Féin in 1983, at which time he is widely believed to have also been a leading member of the IRA’s ruling Army Council, although he denies all accusations of IRA membership. Adams argues that the IRA’s campaign made the GFA possible, and so, paradoxically, the relative peace in Northern Ireland exists because of IRA violence. From this perspective, the story goes, Adams persuaded the IRA–of which he was not a member–to end its war and support constitutional politics. This storyline was so successful that Sinn Féin quickly eclipsed the SDLP as the most powerful political voice of Irish nationalism in Northern Ireland. Martin McGuinness, a former IRA leader, became Deputy First Minister in a power-sharing government. Irish-American publisher Niall O’Dowd has compared Gerry Adams with Nelson Mandela.

This interpretation of the history of Northern Ireland is a deliberate distortion. In December 1973, the Sunningdale Agreement offered terms that were similar to the GFA–prompting SDLP leader Seamus Mallon to remark that the Agreement was “Sunningdale for slow learners.” A comparison of Sunningdale and the GFA shows that the IRA’s campaign did not make substantive gains for the cause after December 1973, contradicting justifications for violence after this date. In addition, Trimble and Hume were the architects of the peace process, not Adams, yet their names have nearly vanished from the contemporary narrative, demonstrating Sinn Féin’s successful rewriting of history. 

Plus, empirical evidence corroborates the claim that Adams was an IRA member. In 1972 he and three other IRA members flew to Britain to hold talks with William Whitelaw, then Secretary of State for Northern Ireland. Why would Whitelaw engage with three bona fide IRA members plus one noncombatant? Also, writing as “Brownie” in Republican News, Adams stated in May 1976, “Rightly or wrongly, I’m an IRA volunteer.” Adams acted on behalf of the IRA in a time in which he did not foresee the political power that he would later attain–power that demands that he deny his role in paramilitary violence in order to support his image as a statesman.

Despite Sinn Féin’s claims to the contrary, if Irish unity is a tangible possibility today, that has little–if anything–to do with IRA violence. Demographic changes and economic aftershocks of Brexit might shift the scales. Importantly, too, Sinn Féin has changed its policies to embrace abortion rights, marriage equality, and the European Union: these issues cut across lines of national identity and align with policies in the Republic of Ireland. So, Sinn Féin also has the potential to convince socially liberal unionists that they will be more free and more equal in a united Ireland. None of these changes was incumbent upon 30 years of anti-state and sectarian violence. 

Sinn Féin’s evidence-free “revision” of the history of the IRA exemplifies how political actors can  exploit the past for their own ends. Manipulating history in this way, especially when the people doing so are famous and powerful, will distort the record for future generations of scholars and obscure the truth about pivotal events. More immediately, though, the manipulation of history is a form of lying; and support garnered through falsehoods is unearned. 

This problem highlights the importance of the professional practice of history. We live in an age in which powerful people deride verifiable facts as “fake news” and technology renders the filtering of truth from fiction difficult even for savvy consumers of media. By documenting the past and emphasizing the role of historical methods, historians can begin to blunt the use of history in the service of nakedly political goals, and promote the notion that a fact is not “fake” simply because it disproves a more appealing story. Historians often disagree about interpretations of facts, but we do not debate the facts themselves. If facts become legitimate topics for disagreement, then knowledge itself will become a quaint notion of a bygone Age of Enlightenment and powerful people will freely manipulate reality in pursuit of selfish ends. By telling people that they are repeating baseless lies, we can stop the illusion of truth that seems to lie in repetition.  Instead, I urge you to embrace facts as weapons in defense of a common reality.