When pregnancy is an injury: rape, law, and culture.

• Author: Bridges, Khiara M.
• Position: Introduction through II. Moving out of the Context of Rape, p. 457-490

INTRODUCTION I. DEFINING RAPE A. The Focus on Physical Injury B. The Construction of Legal Injury Versus the Legal Construction of Injury II. MOVING OUT OF THE CONTEXT OF RAPE A. On Wantedness 1. Unwantedness as the stuff of injury, or abortion rights advocacy: past and present 2. Nonconsent to sex as the stuff of injury B. Defining the Injury III. OTHER CONTEXTS A. When Pregnancy Is Not an Injury 1. The abortion eases 2. Wrongful birth/life/pregnancy/conception B. When Pregnancy Is an Injury ... to the Body Politic CONCLUSION INTRODUCTION

In several jurisdictions in the United States, a rapist who causes his victim to become pregnant commits an aggravated sexual assault. Having committed an aggravated crime, he will be subjected to a longer prison sentence relative to his counterpart whose victim does not become pregnant consequent to the rape. The rapist who causes a woman to become pregnant will be treated as if he broke his victim's leg, gave her severe head trauma, or shot her with a gun. That is, the victim's pregnancy is treated the same as a broken bone, a concussion, or a gunshot wound. This intriguing result is the product of sexual assault statutes that provide that pregnancy is a "substantial bodily injury" that can aggravate a crime. These laws, which function to construct pregnancy as an injury, are interesting for many reasons, two of which this Article explores in depth.

First, the construction of pregnancy as an injury runs directly counter to positive constructions of pregnancy within culture. (1) The fact that the criminal law embodies this decidedly negative construction of pregnancy is important: it creates the possibility that this conception of pregnancy may be received within culture as a construction of pregnancy that is as legitimate as positive constructions. In this way, these laws create possibilities for the reimagining of pregnancy within other areas of law and, ultimately, society more generally. Essentially, this Article uses the event of pregnancy to analyze the dialectical relationship between law and culture. How is pregnancy experienced and understood within culture? (2) How may that experience and understanding come to be reflected within law? How may that reflection, in turn, influence experiences and understandings of pregnancy within culture? And the dialectic turns. (3)

Second, in constructing pregnancy as an injury, these laws recall the argumentation that proponents of abortion rights once made--argumentation that one no longer hears or sees in the debates surrounding abortion. In decades past, advocates for the abortion right made their case in the language of injury: unwanted pregnancies were injuries to the women forced to bear them. Abortion figured as a healing modality, serving to heal a woman of her injury. This advocacy never quite made it into abortion jurisprudence. As a consequence, perhaps, the construction of unwanted pregnancy as an injury disappeared from the language of abortion rights activism. However, recent developments in antiabortion argumentation counsel its retrieval. There has been a shift in antiabortion argumentation away from a focus on the fetus and toward a focus on the woman. In this shift, abortion is wrong, not because it harms the fetus, but rather because it harms the pregnant woman. The Court in Gonzales v. Carhart (Carhart II) accepted this position, upholding a law that restricted access to abortion because it seemed "unexceptionable" to conclude that "some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow." (4) Because the Court accepted as true that abortion harms women, it is reasonable to expect that opponents of abortion rights will continue to advocate in this register. In light of this, the incredible significance of constructing unwanted pregnancy as an injury is revealed: unwanted pregnancies also, literally, harm women. If true, then women bearing unwanted pregnancies are faced with two injuries--the pregnancy itself and the abortion that would end it. Antiabortion activists, and the Court, would need to articulate a basis for compelling women to remain injured (that is, pregnant) in order to protect them from a harm (that is, abortion). Moreover, if unwanted pregnancy is an injury, then perhaps abortion does not harm women but rather heals them. Which is to say, recent developments in antiabortion argumentation counsel the retrieval of the claim that unwanted pregnancies are injuries to women; the sexual assault laws under analysis are a means to legitimize this claim.

The exploration proceeds in three Parts. Part I provides an overview of sexual assault statutes that punish more severely perpetrators who cause their victims to become pregnant and suggests that these laws are worthy of cultural analysis because they define pregnancy as an injury--a definition that is wholly at odds with positive constructions of pregnancy. Part II moves the discussion outside the context of rape. It contends that the definition of pregnancy as an injury does not solely describe women's experiences of pregnancies that result from rape, but describes women's experiences of unwanted pregnancy as a general matter. Indeed, it is the profound unwantedness of the pregnancy that results from rape that makes it an injury. Thus, the criminal law gives legitimacy to a subversive phenomenology (5) of unwanted pregnancy, which may have repercussions for how all unwanted pregnancies--not just those resulting from rape--are understood in society. Part II also notes the significance of this argument in light of recent claims made by antiabortion activists that abortion harms women.

Part III looks at representations of pregnancy in other areas of the law, including constitutional law, statutory law, and common law. While this canvass of the law is not meant to be exhaustive, it reveals that the law frequently embodies positive constructions of pregnancy. This is true even when negative constructions might be expected--as when the Court interprets the Constitution to provide for a woman's right to terminate a pregnancy. The rare times that the law represents pregnancy subversively are when laws index the social effects of pregnancies--for instance, the taxing of government coffers to support the children and the families produced by pregnancy. Accordingly, while the law in these instances represents pregnancy as an injury, the injury is to the body politic. Thus, the subversive nature of the representation is mitigated, as it does not endeavor to describe a bodily experience of pregnancy as an injury. This Part's canvass demonstrates that it is a rarity for the law to embody a strictly subversive construction of pregnancy (that is, one that focuses on a phenomenology of pregnancy as an injury), suggesting the exceptionality of the sexual assault statutes at issue. Moreover, this Part's canvass shows that the law, as a general matter, fails to reflect the reality of this experience, which is unique to women; in so doing, the law has silenced women. Nevertheless, there remains the possibility that, as women gain access to positions of power in the public sphere, their experiences will come to be reflected in law. This Part serves to itemize several areas of the law that may be rewritten, and radically so, should the law actually listen to women. A brief Conclusion follows.

Before beginning the exploration, however, it is necessary to lay out in some detail just what is meant by the phrase "positive construction of pregnancy." The positive construction of pregnancy may be described as hegemonic, insofar as it is a persuasive understanding of the event that has achieved its persuasiveness through cultural institutions such as law, religion, and the media. This construction holds pregnancy to be a wonderful, life-affirming, overwhelmingly good event in the life of the woman (and her family, nation, and, ultimately, species). The beautiful--almost beatific--aspects of pregnancy are captured in a passage from the French novelist Colette's L'Etoile Vesper: "Insidiously, unhurriedly, the beatitude of pregnant females spread through me.... This purring contentment, this euphoria--how give a name either scientific or familiar to this state of preservation?" (6)

Indeed, positive constructions of pregnancy recognize the magnificence of pregnancy as distinct from the magnificence that infants may represent and embody:

Pregnant, we know god, this presence inside us which protects us yet makes us vulnerable. My baby flowed out around me protecting me in her own radiance for nine whole months. I was never alone. I did not fear death. The baby within & the spirit without were one, & I was at peace. Then she was born, & fear reclaimed me. Erica, Erica, don't you know that if you can create a baby, you can also create god? & if god can bloom a baby in your belly then She must be with you always? (7) Which is not to say that positive constructions cannot recognize that pregnancy is physically taxing, occasionally painful, and frequently burdensome. These undesirable aspects of pregnancy are not denied within positive constructions of pregnancy. Nevertheless, the experience of pregnancy remains, at the end of the day, a good thing. The negative parts of the experience make it bittersweet; but it is always, and in every case, more sweet than bitter. Consider the oft-quoted description of pregnancy offered in Muller v. Oregon (upholding a law that limited the number of hours women could work in laundries), which emphasized that a woman's maternal functions disadvantaged her, especially "when the burdens of motherhood are upon her." (8) Pregnancy is burdensome, but ultimately is a benefit to her, as well as a "benefit of all." (9) Consider as well descriptions of pregnancy documented in Kristin Luker's classic analysis of the abortion debate and the worldviews of activists...