The issue gained newfound attention last month, when the Supreme Court of Canada heard the case of a man who was sentenced to jail time for admitting that he poked holes in condoms to get his girlfriend pregnant in an effort to keep her from ending their relationship. She ultimately terminated the resulting pregnancy, and though a judge ordered the boyfriend’s acquittal, a second trial determined he was guilty of sexual assault.
To charge this defendantwith sexual assault is a little extreme in my opinion because the term connotes forced penetration. Given the fact that the woman involved was a willing participant I assault.
According to legal experts in the United States, however, he would not be guilty of any crime south of the border, something those in the domestic violence community would like to see changed.
So what exactly is reproductive coercion? Katie Ray-Jones, president of the National Domestic Violence Hotline, describes it as “a pattern of acts and behaviors in which one partner exerts control over another over reproduction, birth control, pregnancy that relate to reproduction. We know that domestic violence is a pattern of coercive controls and power, and we know that reproductive coercion fits into that dynamic.”
“Even if some jurisdictions found birth control sabotage to fit into modern sexual assault statutes, the statutory framework is convoluted.”
A 2010 survey of 3,169 women conducted by the National Domestic Violence Hotline found that a quarter of abused women had been ordered not to use birth control by their partners.
Some women told the hotline that their partners would hide their birth control pills or destroy them altogether. In one instance, a woman asked her doctor to replace her pills four times before discovering that her partner was responsible for their disappearance. In that instance the abuser was not only depriving the woman of control over her reproductive choices but making her doubt her own memory and sanity, as even her doctor was convinced she was simply forgetful and irresponsible about her contraception.
But some stories are even darker.
“We had a woman who had seven children,” said Ray-Jones. Her husband “would impregnate her back to back so she wouldn’t be able to get a job, she’d always have an infant to care for and wouldn’t have any financial stability.” Though the husband was physically abusive, Ray-Jones recalled, “It was an extra challenge for us because it was hard to find a shelter that would take seven kids.” Even more harrowing, she said, was “another caller [who] told us [her partner] would get her pregnant, then force her to go get an abortion and began to punch her when she refused to get one.”
But beyond the physical abuse, such behavior is virtually impossible to prosecute in the United States.
Seema Iyer, a former prosecutor turned defense attorney in New York, says that while she “felt passionate about finding some way to address this heinous act,” every statute she could think of to try to criminalize such behavior under current law would be a serious legal stretch.
“It’s wrong, but one of the things you learn in law school is there isn’t a right for every wrong,” said Raoul Felder, an attorney known for representing celebrities in paternity cases and divorces. “This is a wrong, but there is no right for it.”
Felder explained, however, that there are laws against forcing someone to ingest something without their knowledge. In September a Florida man plead guilty to tricking his girlfriend into taking a pill that induced an abortion after she told him she was pregnant. He switched the label on her medication so she thought she was ingesting an antibiotic for an infection, not a pill that would cause an abortion. John Andrew Welden was convicted under the Unborn Victims of Violence Act. But while such extreme tampering is a criminal act, other forms are not under current statutes.
An article in the California Law Review outlined precisely why the Canadian conviction would never stand here in the U.S. That case hinged largely on the definition of consent. The victim consented to sexual intercourse, but only intercourse that involved the use of effective contraception. So in sabotaging that birth control, the perpetrator engaged in a sexual act to which the victim did not consent, thus resulting in a lack of consent, deemed an assault. According to the law review analysis, “the prevalence of ‘generalized consent’ in American sexual assault law practically makes the question moot. Given this context, legislatures would be wise to create an independent criminal cause of action for birth control sabotage.”
U.S. courts are less likely to get into the details of what transpired between two consenting adults once general consent to the sexual act has been established and proved. That is problematic, of course, as the choice to become a parent is a separate and independent choice from whether to engage in sex.
The law review article also noted: “Even if some jurisdictions found birth control sabotage to fit into modern sexual assault statutes, the statutory framework is convoluted and fails to distinguish between different types of sexual assault, so it makes little sense to add one more claim to the list. Of those U.S. jurisdictions considering cases of birth control sabotage, the sabotage is often considered as just another supporting fact, and not an independently sufficient offense, in the grander crime of forceful sexual assault.”
Ray-Jones said she would like to see laws in place that allow a woman’s journals or medical records to serve as sufficient proof that she is a victim of reproductive coercion and therefore a victim of abuse. For instance, if a woman tells her doctor on multiple occasions that her partner is hiding her birth control, that would be enough to be viewed as abusive behavior.
Asked about legislative remedies to address reproductive coercion, Rep. Carolyn Maloney (D-NY) said in a statement: “This most recent case of a Canadian man charged with sexual assault is not the first time a woman has been manipulated by a partner through tampering with her method of birth control. Such cases are often linked to domestic violence and unwanted pregnancy. We must do more to protect women from partner violence and ensure our court system prosecutes those who commit such acts.”
Of course, the possibility exists that should laws end up on the books to make reproductive coercion a crime, just as many women could end up in jail as men. Although it’s impossible to determine how widespread the practice is, some women also have misled partners about their birth control or sabotaged birth control in an effort to try to secure the relationship. In September reports surfaced that women were selling positive pregnancy tests on Craigslist. It was widely believed that the buyers of said tests were women looking to mislead romantic partners into believing they were pregnant when they were not.
No one should ever knowingly deceive anyone else into conceiving. A child should never be a tool, a trick, or a pawn. But it must also be understood that each and every time you have intercourse with someone, and there is no permanent physical impediment that would prevent conception, there is a chance that it will result in pregnancy. Each and every sexual encounter must be taken seriously for more than the 2-3 minutes that it takes to make a baby.
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