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Posted at 10:02 AM ET, 02/ 1/2011

What is 'forcible rape' exactly?

By Jonathan Capehart

The intent of H.R. 3 -- a.k.a. the "No Taxpayer Funding for Abortion Act" -- is clear. What's not clear is what, under the act, would still qualify for a taxpayer-funded abortion.

Federal law already prohibits federal dollars from being used to finance abortions, except for pregnancies that are the result of rape or incest or situations in which the life of the mother is endangered. But the vague legislation, brought to you by Rep. Chris Smith (R-N.J.) and 173 co-sponsors, would bar folks from using their health savings accounts to pay for an abortion. And they could forget about availing themselves of tax credits or deductions for medical expenses for an abortion. The scary part is when federal funding of an abortion would be allowed.

'The limitations established in sections 301, 302, 303, and 304 shall not apply to an abortion--

'(1) if the pregnancy occurred because the pregnant female was the subject of an act of forcible rape or, if a minor, an act of incest; or

'(2) in the case where the pregnant female suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the pregnant female in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself.

'Forcible rape'? The very concept is offensive on its face. How is that even defined? There is no definition in the bill. Maybe I'm a do-gooder liberal who fell for the whole "no means no" mantra of my childhood. Or that rape isn't sex, it's violence. But if a woman or girl gets pregnant through incest or rape (in all ways it is defined or understood) the government should not limit her choice by withholding the funding she could use to end the pregnancy -- if she chooses to do so.

So far, I have not received an answer to my e-mail yesterday to Smith's office asking how he would define 'forcible rape.' I also asked, "Do you have any pushback on the criticism that the law would no longer cover rapes that are the result of a woman being drugged, drunk, mentally disabled or date rape?" I'll update once I get an answer.

By Jonathan Capehart  | February 1, 2011; 10:02 AM ET
Categories:  Capehart  | Tags:  Jonathan Capehart  
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Comments

So you want to know the difference between an alleged forced rape and an alleged rape?

Ask Julian Assange.

Posted by: Lazarus40 | February 1, 2011 10:56 AM | Report abuse

Can brukas be far behind with these clowns?

What are the republican plans for all the forced births they're promoting?

Posted by: JilliB | February 1, 2011 10:59 AM | Report abuse

I think you're just splitting hairs but Forcible Rape, by UCR definition, is the carnal knowledge of a person forcibly or against that person’s will, or when a victim is mentally or physically incapable of giving consent.

Rape is nonconsensual sex. The word forcible doesn't change the definition. A minor is incapable of giving consent. Raping a drugged victim is nonconsenual and therefore, forcible rape. Raping a victim by fraud is nonconsensual and therefore, forcible rape...etc. So, I don't see where it's redefining rape. The only thing that isn't covered would be consensual incest of two adults. Consensual incest is not rape and both parties would be committing an illegal act.

Posted by: valetudo020 | February 1, 2011 12:02 PM | Report abuse

It's nice to know republicans are focused on job creation...

Posted by: bopst | February 1, 2011 12:07 PM | Report abuse

Ask Rep. Smith for an example of rape that is not forcible.

Posted by: mthand111 | February 1, 2011 1:21 PM | Report abuse

What I want to know is: why it it acceptable to have an abortion if the female was unwilling to have sex, but if she freely engaged, suddenly the fetus is "a child"?

Could it be to punish her for actually wanting and enjoying sex? And now the "child" that was just too sacred to abort becomes her punishment.

Face it, restricting abortion is not done out of concern for the punishm - oops, I mean The Child - it's done to punish women who enjoy sex.

Posted by: washerwoman | February 1, 2011 2:05 PM | Report abuse

Having read the entirety of the bill, which stands at a whopping 9 pages, I can say with 100% certainty that the bill does not even attempt to redefine rape. Using the word "forcible," as another commenter has already pointed out, does not change the meaning of the word rape.
MoveOn.org says this about the matter,"A far-reaching anti-choice bill, introduced by Republican Chris Smith and supported by 173 members of the House, includes a provision that could redefine rape and set women's rights back by decades. Right now, federal dollars can't be used for abortion except in cases of rape, incest, or when the woman's life is in danger. But the Smith bill would narrow that use to "cases of 'forcible' rape but not statutory or coerced rape."
This is a bunch of bull, and an attempt to misconstrue a bill that a lot of Americans agree with and an attempt to make Republicans seems like a soulless bunch. MoveOn.org says that "forcible rape" is covered, but "coerced rape" is not. Merriam-Webster offers three definitions of "coerce," and all of them use the word "force."
Maybe left-wingers should find something legitimate to whine about instead of just trying to smear Republican lawmakers.

Posted by: maddenleaman | February 1, 2011 4:55 PM | Report abuse

Adding the word forcible IS a step back. For many years, for a woman to prove a charge of rape she had to prove that violent force was used against her, and that she tried to fight back.

Once upon a time, the law demanded that a woman fight until she was either overcome by exhaustion, or was threatened with death. If she didn't leave a mark on the attacker, then she didn't fight hard enough, and if she didn't fight hard enough, then she must have wanted it, so it wasn't rape.

Resistance requirements have been lessened over time (for instance, requiring only reasonable resistance, which under some circumstances, might be no physical resistance at all). In many states, statutes have been re-written or re-interpreted to make it clear that rape is sex without consent, completely eliminating a resistance requirement for the woman and the requirement of physical force on the part of the rapist. Nonconsent is the important factor. Some states no longer use the word "force" in the definition of rape.

In light of the history of rape law, the word "forcible" does mean something when placed in front of the word rape, and it is not illegitimate to be concerned that the GOP would be, at the very least, so careless in the construction of this legislation.

Posted by: rbhs | February 1, 2011 5:31 PM | Report abuse

I guess for Republicans it depends on what your definition of "rape" is. Rape is rape. A woman has the right to choose to terminate her own pregnancy. Are we going back to the days where the man gets a slap on the wrist and the woman has her entire life changed? The threat by a man that getting the woman pregnant means he "owns" her for the rest of her life? A woman must have been asking for it by dressing "that way" or acting "that way". Why not just insist on covering them up completely and keeping them in doors!

Republicans are shameless!

Posted by: thebobbob | February 1, 2011 6:12 PM | Report abuse

RBHS,
You assume that states require physical proof of resistance now. Recent federal statutes, which often preempt state statutes, contradict this. United States v. Bright states the following:
Force and lack of consent are necessary to the offense. Thus, if the victim consents to the act, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a victim
in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent. Consent, however, may not be inferred if resistance would have been futile, where
resistance is overcome by threats of death or great bodily harm, or where the victim is unable to resist because of the lack of mental or physical faculties. In such a case there is no consent and the force
involved in penetration will suffice. All the surrounding circumstances are to be considered in determining whether a victim gave consent, or whether he or she failed or ceased to resist only because of a
reasonable fear of death or grievous bodily harm.
Under this federal decision, it is far more likely that resistance will be assumed since most victims have a reasonable fear of bodily harm and/or death. Also, it seems everyone is dancing around the fact that the bill is not about how rape is defined; it is about not giving the support of tax dollars to people seeking abortions.

Posted by: maddenleaman | February 1, 2011 7:35 PM | Report abuse

Is this why Republicans keep talking about small government? They are advocating a government so small it can fit right into your womb?

Posted by: pmb07030 | February 1, 2011 7:49 PM | Report abuse

maddenleaman,

I understand that moveon.org is a biased source of information. However, your response did not touch on what the bill was "actually saying." What is it that "a lot of Americans agree with"? After reading the whopping 9 pages, my viewpoints have not changed at all. It does state that tax money will only be allowed for forcible rape and incest with a minor. There would be no point to the bill if it was just restating that "forcible" rape was any sexual act that was coerced.

I understand that it's hard to walk in the shoes of another person, especially a rape victim. Personally, I am incapable of walking in the shoes of a callous person, but this doesn't give me the false understanding that I can dictate his life choices.

Posted by: khbass | February 2, 2011 1:48 AM | Report abuse

khbass,

My response to this column was fairly appropriate since it is about how this bill supposedly redefines "rape." I merely stated that this is an attempt to misconstrue a bill that many Americans will agree with, as past studies have shown. If you'll notice, most other people who have commented on this have said things pertaining to the definition of rape. I wanted to respond to the column, not debate the bill; since the column was not about the bill as a whole, it is not appropriate to take up this space debating the bill as a whole.

I'm not sure how that makes me a callous person. Also, nobody is trying to dictate life choices.

Posted by: maddenleaman | February 2, 2011 9:42 AM | Report abuse

If the term "forcible" doesn't change the definition of rape as some of these posters purport, why use it? Because it casts a shade of meaning as all adjectives, adverbs, modifiers, etc. do!!!

Posted by: cathdubois | February 2, 2011 1:45 PM | Report abuse

Setting aside the funding issues, which are ridiculous, the key to this is the word "forcible". It doesn't matter what the Webster dictionary may state some cockamamey, bottom of the barrel lawyer is going to bring that word up in court as a defense. They would construe it to the court as the government's definition of rape.
Anyone with a brain knows that rape is never NOT forced but the defense only has to prove reasonable doubt. And then precedence has been set.

Posted by: mikkime | February 2, 2011 5:58 PM | Report abuse

Well said. When our reps write bills they do so knowing that every single word will be scrutinized and manipulated by lawyers. Unless Rep. Smith and all his co-writers are complete buffoons (unlikely) it's impossible that the inclusion of "forcible" was accidental. In legislation wording matters.

Semantics aside the idea that women could be permanently barred from obtaining federal funding for abortions is upsetting. First, this bill will basically remove poor women's access to abortion in states that don't provide this option. If a woman feels that she is not able to financially support a child then she should not be obstructed from ending her pregnancy.

Also, access to abortion is a matter of gender equality. If a man chooses to have sex his only physical risk is getting STDs. It's totally different for women. Even in 2011 pregnancy poses serious physical risks. Women's earning power is considerably decreased when we have children. As a result social power and the capacity to self determine are sharply decreased. We need to be allowed to control our own reproduction so we can take these risks when we're ready and in the meantime experience the same freedoms that men do.

Thanks for all the thoughtful comments. I hope that I have also contributed positively to the discussion.

Posted by: Selina2 | February 3, 2011 2:43 AM | Report abuse

I will be honest and say I have not read the bill in it's entirety. My main concern is for woman, such as myself, that have been raped. It is terrifying enough to come forward without words being misconstrued by lawyers. I understand the reason for the bill, but I do believe that words carry power. Every word we use carries a weight, and in the court of law a vague definition of a word can carry doubt. I may be biased, but if there was a way for them to come to an agreement on the wording that would not allow rapists' lawyers to take advantage of the situation and discourage woman even more, or make them feel ashamed, I would not protest this bill. The truth is it would only take one court case with a winning verdict for the rapist for women everywhere to fear the system.

If words meant nothing, our government would not put so much thought into writing the bills that affect our lives.

Posted by: Mrsjmsmith | February 4, 2011 4:19 AM | Report abuse

I will be honest and say I have not read the bill in it's entirety. My main concern is for woman, such as myself, that have been raped. It is terrifying enough to come forward without words being misconstrued by lawyers. I understand the reason for the bill, but I do believe that words carry power. Every word we use carries a weight, and in the court of law a vague definition of a word can carry doubt. I may be biased, but if there was a way for them to come to an agreement on the wording that would not allow rapists' lawyers to take advantage of the situation and discourage woman even more, or make them feel ashamed, I would not protest this bill. The truth is it would only take one court case with a winning verdict for the rapist for women everywhere to fear the system.

If words meant nothing, our government would not put so much thought into writing the bills that affect our lives.

Posted by: Mrsjmsmith | February 4, 2011 4:21 AM | Report abuse

I'm neither (D) or (R).

This is for the men who don't get this forcible v non-forcible rape thing:
Imagine...

You're a productive, tax-paying, law abiding citizen. Lets say, a young surgeon, end of your residency, youve just been accepted into one of the cities top practices. Youve got one kid, one on the way & are hoping for one more down the line.
You're in a fairly new & unfamiliar city for the residency & the job. You've been on for 36hrs, most of them in surgery, you're more exhausted than you thought a human could get.

You get home, late, flop into bed without chaging out of your (clean) scrubs, you're just gonna rest your eyes for a minute then you'll take off your.... KNOCK KNOCK KNOCK-"POLICE!!". Youve got a common name and due to ID theft 3yrs ago, which you're still untangling from,you mistakenly get picked up in a warrant round-up,along with 140 felons. I's Friday night,youre stuck until Mon morning, when the court system opens.

City coffers are empty,so the city jail is manned by those 18yr old "copscouts", the kids that are going to go to the police academy when they graduate,but until then they are angry free labor with authority. Since you have no need for style and hair just gets in your eyes, you shave your head every 2wks. Your head is freshly shaven, so the copscouts think it'll be funny to put you in a cell with 3 extremely agitated, extremely large African-Americans coming off of some stimulant, who all think you are a skin-head. The largest one demands your sweatshirt, you decline, a quick scuffle leaves you without a sweatshirt,but with 2 broken teeth, a possibly broken hand (bad for a surgeon), 3 new enemies and a frightening understanding of just how outnumbered, outsized, and outmatched you are.
The copscouts don't even check to see what the ruckus is.You go to the sink to wash your teeth out,but one of your cell-mates has defecated in the sink. There are no blankets, no matresses, no pillows. You lie on your metal shelf, getting up as close to the wall as you can for warmth...

There's a huge hand covering your mouth/nose,not applying pressure,but you know it will if you resist. Another hand is squeezing the hand you think you broke (later you find it IS broken) with crushing force.The person lying on top of you outweighs you by 200lbs, you have no leverage. You feel searing pain, you shake your head "NO", before your nose is pinched and pressure is put on your mouth. You're being penetrated.You weigh your options,the only one is to scream,you're in no position to fight effectively.You've got a wife & a little girl at home depending on you, a little boy on the way.Your skills save lives.Do you scream and risk losing your skills?It doesnt matter,you ARE in the middle of someone having sex with you. The damage has been done,you can only make it worse. So you endure,to make it back to your family.

Were you raped? You didnt really resist.
Don't answer, just think about it, realistically

Posted by: deusXmchna | February 4, 2011 6:08 PM | Report abuse

deusXmchna,

United States v. Bright states that consent cannot be inferred if resistance was futile, as in the scenario you provided. A lack of consent would be fairly easy to prove in that case, and it would therefore be rape. So in that case, the person is raped. Also, there is no such thing as a non-forcible rape. Non-forcible implies consent. If there were consent, the situation would not be rape.

Posted by: maddenleaman | February 5, 2011 12:02 AM | Report abuse

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