Contraceptive sabotage.

• Author: Plunkett, Leah A.

Abstract

This Article responds to the alarm recently sounded by the American College of Obstetricians and Gynecologists over "birth control sabotage "--the "active interference [by one partner] with [the other] partner s contraceptive methods in an attempt to promote pregnancy. " Currently, sabotage is not a crime, and existing categories of criminal offenses fail to capture the essence of the injury it does to victims. This Article argues that sabotage should be a separate crime--but only when perpetrated against those partners who can and do get pregnant as a result of having sabotaged sex. Using the principle of self-possession--understood as a person s basic right to self-ownership--this Article argues that women have a self-possessory interest in maintaining their reproductive capacity in its non-pregnant state during and after having sex to the extent they seek to establish with the use or planned use of contraception. Sabotage by sexual partners-- typically male--violates this interest and merits criminal punishment. This Article proposes statutory language to criminalize sabotage that should be added to the revision of the Model Penal Code currently underway. Not only would this addition likely survive any Equal Protection challenge, it would arguably serve to strengthen the existing constitutional right to non-procreative sex by setting meaningful limits on one partner s ability to interfere unilaterally with the other partner s contraceptive decisions.

INTRODUCTION

The American College of Obstetricians and Gynecologists (ACOG) recently sounded an alarm over a phenomenon called "birth control sabotage." (1) Birth control sabotage does not have a universally agreed-upon definition, but the ACOG defines it as "active interference with a partner's contraceptive methods in an attempt to promote pregnancy" and recommends that medical professionals take measures to reduce the incidence of sabotage among their patient populations, such as screening patients for potential sabotage situations and recommending safety planning and counseling should such behavior be present. (2) In the ACOG's understanding, it appears that only women can be victims of sabotage. (3) Promotion of pregnancy is essential to the act of sabotage, and only women can get pregnant. Thus if women promote their own pregnancies, they are free to do so; they cannot sabotage themselves.

The identification of birth control sabotage as a fairly widespread but widely ignored social problem raises critical questions for law as well as for medicine, including whether there should be criminal consequences for saboteurs. (4) Legal scholars are just beginning to grapple with this issue. (5) To date, it appears that only one detailed scholarly proposal has been made to criminalize sabotage. (6) This proposal defines sabotage as a form of intimate partner violence and would make it a freestanding crime. (7) The proposal is drafted such that not just women but men could be victims of sabotage as well if their female partners "tamper[ed]" with birth control "against ... [the men's] will, with the specific intent of inducing pregnancy." (8) That is, women who wished to become pregnant and acted unilaterally in pursuit of this goal--by secretly stopping use of their birth control pills, for example--would be guilty of a crime. Were this or a similar proposal to be adopted, the inclusion of men in the class of potential victims could well be a point of disconnect between the medical establishment's understanding of the sabotage problem and the law's response.

More problematic for the development of legal doctrine and principles, such inclusion would criminalize two experiences that effectively never provide a basis for criminal liability in theory or in practice: pregnancy (when wanted by the pregnant woman) and parenthood (whether wanted by either party or not). Pregnancy transforms women's bodies in countless ways, (9) and criminal law recognizes in limited contexts that this transformation--when unwanted--may constitute harm to women justifying criminal punishment. (10) Men's bodies, however, are not transformed in any way by their female partners' becoming pregnant, thus the essence of the injury to men as a result of contraceptive sabotage is most reasonably construed as becoming parents against their will. Of course, men cannot become parents unless their female partners become pregnant and continue the pregnancy until birth (live or still) results. Because of this inextricable link between pregnancy (for women) and parenthood (for partners of both sexes), any inclusion of men in the category of sabotage victims would render women subject to criminal punishment not just for transforming their male partners into parents but for becoming pregnant and continuing the pregnancy. Criminalization of women's decisions to become and remain pregnant would run directly counter to the constitutional guarantee of "limits on a State's right to interfere with a person's most basic decisions about family and parenthood ... as well as bodily integrity"" because women could be arrested, convicted, and imprisoned for that "most basic decision" of using their reproductive capacity for pregnancy.

This Article argues that the revision of the Model Penal Code currently underway should add statutory language that would make contraceptive sabotage a crime-- but only against victims who can and do get pregnant as a result of the saboteur's acts. (Because those victims can only be women--defined here on the basis of their sex, not their gender (11) (12)--the analysis that follows will refer to victims of sabotage as females and perpetrators as males (13)). Absent this limitation on the class of victims, a crime of sabotage would punish experiences--wanted pregnancy, wanted or unwanted parenthood--that are not and should not be understood as injurious. (14)

This Article proceeds in three parts to look at the questions of whether and how birth control sabotage is currently being addressed in criminal law, followed by whether, why, and how it should be. Part I offers an overview of the current landscape of birth control sabotage, including what data from public health studies reveal about its prevalence and how it is treated by existing criminal law. Part I describes how sabotage alone- -absent other allegations of criminal misconduct, such as a sexual assault charge arising from the forcible removal of a woman's IUD--is not typically the basis for prosecution, despite the recognition elsewhere in criminal law that unwanted pregnancy may be an injury that warrants punishment. (15) This non-response is consistent with the law's general reluctance to criminalize situations understood as "rape by deception" or "rape by fraud"-- those times when a partner consents to sexual activity based on the other partner's misrepresentation as to a term of the encounter. Upon first glance, contraceptive sabotage might appear to be a "rape by deception" situation; however, the essence of the offense lies in dispossession rather than deception.

Part II turns to theoretical concerns implicated when criminal law regulates sexual encounters. This Article takes self-possession--a person's right to exercise "basic" "physical" "possession of one's own body"--as the normatively desirable animating theory in this area.16 In other words, the dominant concern of the criminal law when it regulates sex should be to prevent one person from effectuating a "taking of [another's] body." (17) This Part theorizes that unwanted pregnancies serve to dispossess women of their full self-ownership because their reproductive capacities are occupied. Women thus have a self-possessory interest in maintaining their non-pregnant selves--even when they choose to have sex--to the extent that they have sought to establish through the use or planned use of contraception. (18) Part II then explains the lack of a corresponding self-possessory interest for men in maintaining women's non-pregnant selves, as well as the absence of a self-possessory interest for both partners in retaining their non-parental selves or not being deceived by their sexual partners in the matter of contraception.

Part III applies the theory that women have a self-possessory interest in maintaining their reproductive capacities to make a normative argument about doctrine at the overlap of criminal and family law. (19) Specifically, it proposes statutory language to add to the revision of the Model Penal Code currently underway that would criminalize knowing, purposeful, or reckless sabotage of women's contraceptive choices such that the women become pregnant. The Article concludes by arguing that this new statute would not only comport with the Constitution but would strengthen an existing constitutional right to engage in sex without becoming pregnant. (20) More broadly, it suggests that selective intervention by criminal law into intimate life might serve to protect rather than erode certain constitutional rights.

1. Contraceptive Sabotage Today

   This Part describes the current landscape of contraceptive sabotage, beginning with the data that exist on the practice of sabotage, followed by an overview of the legal avenues now available for prosecuting sabotage. Generally speaking, the practice is prevalent enough to have triggered the concern and response of the medical community, although existing data have many limitations. Criminal law offers neither a robust nor a comprehensive legal scheme for addressing the problem. It does, however, offer such a scheme in another context in which one partner increases the other partner's risk of unwanted physical transformation with profound--often life-long--consequences: HIV exposure statutes. This Part concludes by noting these laws to situate the current non-response to sabotage in a broader descriptive context.

   1. Birth Control: Use & Partner Abuse

      Birth control is essential to the lives of most...