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How States Like Alabama Protect Rapists Over Women and Girls

New law would punish doctors with up to 99 years behind bars — decades more than the maximum sentence for those convicted of second-degree rape

MONTGOMERY, AL - MAY 14- The Alabama State Capitol building is seen on Tuesday, May 14, 2019 in Montgomery, AL. The Alabama state Senate is elected to vote today on a bill that would completely ban abortion in the state. (Photo by Elijah Nouvelage for The Washington Post via Getty Images)

The Alabama state Senate passed HB 314, which would almost completely ban abortion in the state.

Elijah Nouvelage/The Washington Post/Getty Images

Update Wed., May 15, 2019: In a tweet, Gov. Kay Ivey said that she has signed HB 314. “Today, I signed into law the Alabama Human Life Protection Act,” she wrote. “To the bill’s many supporters, this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious & that every life is a sacred gift from God.”

On Tuesday night, after nearly four hours of debate, the Alabama Senate passed HB 314, a bill that essentially outlaws all forms of abortion except in cases where the mother’s life is at risk, or if the unborn baby is found to have a “lethal anomaly.” The bill makes no exceptions for victims of rape or incest, despite Democrats’ attempts to reintroduce such exceptions as an amendment. Perhaps most notably, if the bill becomes law, doctors who perform abortions could face up to 99 years in prison. HB 314, which passed by a vote of 25 to 6, is awaiting the signature of Gov. Kay Ivey. Ivey has six days to decide whether she will sign it. (Gov. Ivey has repeatedly and vehemently expressed anti-choice views, but has not commented on HB 314 specifically; the bill’s sponsor, Rep. Terri Collins, has said she expects Ivey will sign.)

HB 314 is a near-total abortion ban. If enacted, it will be the most draconian anti-abortion law in the country. And in the context of the national discussion about reproductive rights, the implications of HB 314 could also be devastating. Proponents of the bill (including the sponsor of HB 314 itself) have openly admitted that it is intended as a direct challenge to Roe v. Wade — and given the present composition of the Supreme Court, the fear of the landmark ruling being overturned or dramatically eroded is an all too valid one.

But what has struck reproductive-rights advocates about HB 314 in particular is the seemingly punitive nature of the bill, as well as the inherent cruelty of forcing survivors of rape or incest to carry their fetuses to term, some of whom are likely very young women (according to the Rape and Incest National Network, women between the ages of 16 and 19 are four times more likely than the general population to be the victims of rape and sexual assault). And while anti-abortion legislators have been emboldened in recent years, there seems to be something particularly vindictive about the fact that doctors who perform the procedure would face up to 99 years in prison — a sentence that, as many reproductive-rights activists on Twitter have pointed out, far exceeds most of those for violent sexual offenders.

Such legislation “shows where the state’s priorities are,” says Farah Diaz-Tello, senior counsel for If/When/How: Lawyering for Reproductive Justice. “It sends an unfortunate message to people who have been raped, that the penalties for ending the pregnancy are stiffer from causing the pregnancy through rape in the first place. I think that sends a very clear message to Alabamians that the state really doesn’t care about their well-being, even though anti-abortion laws are couched in the supposed well-being of a pregnant person.”

If Alabama’s near-ban on abortion takes effect, performing an abortion would become a Class A felony, which carries a minimum sentence of 10 years in prison — the same minimum sentence as severe sex crimes like first-degree rape and sexual torture, under Alabama law.

Incest and sexual abuse, however, are considered Class C felonies, with a minimum sentence of one year and one day in prison and a maximum sentence of 10 years. Second-degree rape usually applies to “what most people usually consider statutory rape,” explains Andrew Segel, a lawyer from Huntsville, Alabama, though it also applies if the victim is between the ages of 12 and 16 and the perpetrator is over the age of 16, and if the victim is “incapable of consent by reason of being mentally defective,” per the Alabama criminal code. In Alabama, second-degree rape is a Class B felony with a maximum sentence of 20 years.

The implications of these sentencing guidelines are clear, and they are chilling: If HB 314 is enacted, a first-time offender who is accused of raping, say, an intellectually disabled woman or a 13-year-old girl could potentially serve less prison time than a doctor providing an abortion. And that’s assuming that they will serve any prison time to begin with. Compared to other victims of violent crimes, rape and sexual assault survivors are far less likely to report their assailants to the police, which leads to far fewer rape-related arrests and felony convictions; only a tiny fraction of those accused of sexual assault will ever spend a day in jail. In effect, if this law is enacted, performing a safe and constitutionally protected procedure that nearly one in four women will have in their lifetimes will be criminalized to a larger degree than sexually assaulting a 12-year-old girl.

Similarly restrictive laws recently passed or undergoing consideration in other states go even further in terms of criminalizing abortion. In Missouri, for instance, Senate lawmakers are considering a bill that also contains no rape exception and carries a penalty of five to 15 years in prison for doctors performing the procedure; for context, second-degree rape (defined as sexual intercourse with a person who does not provide consent) and first-degree sexual abuse are considered Class C felonies, and carry a maximum sentence of seven years and/or a fine of $5,000.

Unlike Alabama’s law, the six-week abortion ban recently signed into law by Georgia Gov. Brian Kemp does make exceptions for rape and incest (provided the victim files a police report). But Georgia’s law is more severe in that it both penalizes doctors who perform abortions, and recognizes “unborn children as natural persons,” meaning women suspected of having abortions, or even who miscarry, could be criminally investigated. “You don’t want a woman to be forced to prove how she lost her baby,” Carol Sanger, a professor at Columbia University Law School, told the Washington Post.

That’s not even considering the failed or stalled bills that have been pushed in red states that propose even more punitive measures, such as a bill considered by the Texas House of Representatives last month that would have allowed both doctors and women who had abortions to be charged with criminal homicide, which is punishable by death. Although the bill was killed in committee, Diaz-Tello says that this extremist stance is becoming increasingly common among anti-choice activists, as evidenced by the fact that it made it to a committee hearing in the first place. “This aggressively anti-woman and pregnancy strand of anti-abortion advocacy that says they’re tired of an incrementalist approach to ending abortion and want to use the criminal laws…we’re definitely seeing [that] more,” Diaz-Tello says. And it’s important to note that the authors of these bills are nakedly misogynistic, to the degree that there is no longer much of a pretense as to what the purpose of such legislation is. As Rep. Tony Tinderholt, the author of the failed Texas bill, openly admitted, the purpose of the bill was not to protect the sanctity of life, but to encourage women to “consider the repercussions of the sexual relationship that they’re gonna have.”

To be clear, none of these laws have taken effect yet. As Diaz-Tello puts it, Roe v. Wade is still “the law of the land.” “I’m hopeful that courts are going to uphold that,” she says. But the implications of such legislation are clear: By prioritizing conservative ideology and those of the unborn over victims of sexual assault and other violent sexual crimes, the goal of such laws is not to protect lives, but to exert ultimate control over them. And for survivors of sexual abuse, who have already been subject to another person’s horrific attempts to control and subjugate their bodies, such laws will have the effect of traumatizing them all over again.

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