A Conversation about Birth Rape

About a month ago now, a flurry of intense conversations on the term "birth rape" circulated through the feminist blogosphere. Although birth rape has been the subject of conversation before, there were several posts written within a few days of each other that are particularly relevant here:

What is "Birth Rape"? by Irin Carmen at Jezebel
Bad Birth Experiences Aren't Rape by Amanda Marcotte at Slate
The push to recognize "birth rape" by Tracy Clark-Flory at Salon
"Birth Rape" Rhetoric is Ugly, Misleading by Lindsay Beyerstein at BigThink

These posts produced outrage (on both sides of the issue) and a great deal of intense commenting and some name-calling and a lot of hurt feelings. It also prompted a number of thoughtful responses that were posted in the days and weeks following, and I'll link some of them below.

Although I read much of the commentary, I didn't post on it here or comment in many of the ongoing comment threads because there are times when this whole conversation makes me feel tired and depressed, and it's hard to say much of anything. It's also difficult sometimes in the context of a blog to address such a sensitive, complex issue with the degree of thoughtfulness and inclusiveness it deserves. But the flurry of birth rape posts did prompt a private email exchange between six feminist bloggers/ birth advocates that seemed really productive to me. Too productive to remain private. So I'm posting it here for your reading pleasure.

Note: this kinda starts in the middle of an ongoing conversation, so it might take a second to get your bearings - keep reading.
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B wrote:

Okay, Clark-Flory just pissed me off even more. Is she ever going to let this drop? She has now called the use of the term birth rape "casual" and compared it to people who say things like "Man, that aerobics class totally raped me." http://www.salon.com/life/broadsheet/2010/09/14/rape_hearing/index.html

For fuck's sake. Growling and grrring all over the place here. How insulting can she be?


F wrote:

Yeah, if it weren't for the word "casually", I wouldn't be upset as much, because she'd just be talking about debates on how to define rape.

About 80% of the time, I'm ok with her, but the other 20% she tends to say clueless stuff.

Of course, since Salon commenters are only a little above YouTube commenters, she usually comes off looking ok in comparison. Which is why I never read the comments.


U wrote:

That's absolutely disgusting, and I had to leave a comment to that effect. If she doesn't think "rape" is the right term, that's all well and good, but my goodness you'd think she'd have more sense than that. :/


K replied to F:

Salon comments are like YouTube Light. That's a great comparison.

I think what we saw last week was another example of how women who "allow" themselves to be vulnerable (and giving birth is a great biological example of that) just don't fit that second wave narrative. I don't have high expectations in the first place when it comes to folks who seem to feel like motherhood is when women sell out (read: those women who let us down deserve what they get), so this whole manufactured brouhaha was pretty predictable. Cognitive dissonance is itchy and stingy, no?

I've seen the same type thing coming from biological essentialists (the "all women should birth vaginally, breastfeed, stay home" set) when a woman decides to get an epidural and ends up with a c/s. They want everyone to do things one way--their way-- so they resent and find indirect ways to tell women they got what they deserved for not _____.


D replied to all:

So I've been mulling over this for a little while because I want to respond in a thoughtful manner. It's worth saying up front that I:

1. identify as feminist
2. have kids, one delivered by truly awful, likely totally unnecessary cesarean
3. am uncomfortable with the terminology "birth rape."

I probably don't need to show my cred, but my cesarean was worse than awful, I hated my body, I couldn't bear to even think about sex for a very long time and would cry and panic if my husband came near me. I still shake when I get into stirrups. I didn't think I was going to die, but I hoped I would. I really, really get the feeling of loss of agency and basic humanity.

I am in a constant process of working through what exactly it is that makes me uncomfortable. I think part of it is that I am very concerned with the meaning of words (no surprise I ended up in law school), and think of rape primarily as a term with legal significance. This really pisses some people off, and I've been accused of boo-hooing on behalf of women who have experienced rape (I have not, and don't pretend to know what anyone else feels or speak for them) and denying the existence of date rape (wtf). I have seen some people make some pretty sweeping claims about whether or not a battery in an obstetrical setting constitutes rape, and I'm left a little confused I guess. So I'll work through it and you can read or not. Maybe grab a cup of tea...

At common law, rape was sex without the victim's consent by force. As time has progressed, we have expanded the meanings of some of the words, specifically "sex" (as including penetration of orifices other than the vagina with things other than a penis, not requiring ejaculation), "consent" (no longer implied in an intimate partner or potential intimate partner), and "force" (to include even the most minimal force required to complete the act and threat of force). Basically, the trend has been expansive and inclusive.

The Model Penal Code, which was supposed to be this sort of utopian criminal code, but is actually still sort of retrograde (um, spousal exception? deviate sexual intercourse? what century is this?) defines rape exclusively as including sexual intercourse, but creates a separate category of "sexual assault." Essentially, this crime is when a person has or causes another person to have sexual contact with them knowing that the victim finds it offensive (and a smattering of other permutations not relevant here). The Code further states: "Sexual contact is any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire."

I think that the magic, from a legal perspective, is in finding a definition of rape that is neither too narrow nor too broad. As others have pointed out, feminist theory tells us that rape is not about sex, but is about power and control. From a legal perspective, though, it's necessarily about asserting power and control in a sexual manner. This doesn't necessarily have to lie in the gratification of the rapist, as the Model Penal Code suggests, but I think there has to be a sexualized element (such as inducing sexual humiliation). People assert power in a lot of ways, and obviously not all of them are rape. Not just because the laws are retrograde, but because the word has to have some sort of parameters to have legal meaning.

This raises a number of questions for me. Does the fact that obstetrical touching involves genitals necessarily make it sexual? Body as sexual vs. nonsexual is a distinction that we're comfortable making in the context of breastfeeding. In fact, a big part of my complaint as a birth activist is that medical personnel objectify women's bodies, divorcing them from humanity/sexuality. When a vagina is a hole a baby comes out of, you can stick your hand in it, cut it, sew it, whatever. It involves a sexual organ but is not sexualized if that makes sense. If someone fondles my breast on the bus, that is (in most jurisdictions) a sexual assault of some sort. If someone does a breast exam, against my will but in good faith looking for cancerous lumps, is that a sexual assault? I'm not so sure. To add another dimension, is the act judged by the intent, or by the fallout? Generally speaking, the law says by intent; I think other disciplines would look at result to the victim. If the feeling caused by rape is similar to that caused by an obstetrical battery, are they the same? Then again, what if I had say a colposcopy that, while technically consented to (or maybe I was silent, or maybe I revoked consent), was painful, terrifying, and left me with symptoms of post traumatic stress? Is that a rape too? Without being flippant at all, what would we call it, gyno-rape? What about a tooth extraction? CPS taking my child away? All of these things might leave me feeling powerless.

When it comes to people talking about what happened to them and how it made them feel, I have no place telling them that they can't call it rape, or liken it to rape, or torture, or whatever else. In any event, the words that women choose illuminate how they feel about what happened, and that has independent value. I understand that the usage is not casual. But I also think that it is important that we have a name for what is happening. Like from a legal perspective. The importance of this is that it would give us a mechanism by which we can hold providers accountable. Great strides were made when we came up with the concepts of "child abuse," "domestic violence," etc. To the extent that it matters what anyone outside the choir thinks, "birth rape" doesn't really resonate. At all. Then again, neither did "partial-birth abortion" or "African-American" and nobody has let that get in the way.

But it also involves telling doctors that they are rapists. This is much more than telling some frat boy that having sex with an unconscious woman is rape. It's telling someone who in all likelihood thought they were saving a life that they are a rapist. This is where it breaks down for me a little. I've heard people say "look, I had to do the' run down the hall with full hand in the vag' because of suspected prolapse and crashing heart rate." Does this excuse them from a violation of informed consent or make them not an asshole? Not in the slightest. But (at least in my definition) a rapist has some sort of malicious or sexual intent - no confusion here as to what they were trying to do. It's either get off or humiliate. Barring some of the more egregious cases, I don't think this is what is going on in a lot of the cases women are calling birth rape. Maybe, for the purposes of institutional change, there's a less destructive way to have this conversation. (For the purposes of personal restitution though, by all means, call them a rapist and key their car!)

Anyway, I think that there is a gap between the metaphorical definition of rape and the legal definition, and that causes me trouble. My inner conflict might make sense if you think about someone who, say, is given a vaginal exam without a word and someone who is digitally penetrated by a perv claiming to perform an ultrasound (an actual case from my torts book). I feel like there is a difference there, and the "birth rape" terminology erases that difference.

So I guess I'm not any closer to an answer, but at least I've thought a little. I'd love to hear anyone's thoughts.


B replied to D:

I think you make some valid, reasonable points, D. I sometimes hear women call, say, unnecessary c-sections 'rape' and it does make me cringe a little because it didn't involve any non-consensual VEs. In that sense, I can see why some would see that as a 'casual' link. On the other hand, when it comes to instances of actual forced VEs, I think there is something very...paternalistic about telling women what they can and can't call the violation against them. Even if in a legal sense 'rape' doesn't hold up, the pain, shame, anger and degradation are often just as powerful, with similar effects on the psyche. It's the dismissal of that pain and the allegation that birth rape/assault somehow diminish 'real' rape that really gets to me.


S replied to D:

FWIW, I'm totally on board with you about most of this. I feel pretty cautious about the use of the term, and it took me a long time to form an opinion on it when the terminology first came into broader usage.

On the one hand I really am sympathetic to those who worry about diluting the meaning and power of the word "rape." This is something to be taken very seriously. On the other hand, I think that birth and reproductive autonomy are areas where women are especially vulnerable due to the cultural context, and it's so easy for individuals who work within patriarchal systems like the medical industry to violate them in egregious ways. And this is one criterion from a legal standpoint, right? The comparative vulnerability and powerlessness of the victim in relation to the perpetrator is commonly factored into legislation as is clearly seen when dealing with laws that protect children and disabled individuals, for example. The problem is that we as a society don't recognize this huge power imbalance between birthing mother and medical care provider, so the potential for coercion and violation that comes with it is largely invisible.

But obviously this vulnerability alone is not enough to get you to something as serious as rape. I do think the intent vs. consequences issue is central. Obviously most medical professionals are not going to derive sexual pleasure from mistreating birthing women. But I do believe some of them derive pleasure from dominating and/or humiliating them. And generally speaking this combo of sexual violation + pleasure is enough to get you a conviction of rape-rape (hence the jettisoning of the ejaculation requirement...). And of course the damage done to the victim is often intensely sexual. So I think I fall somewhere in the middle where I think there is a select group of cases where "birth rape" is applicable. Reproduction and birth are inherently a part of a woman's sexual life, even if the medical professionals involved don't perceive it that way. Hence the damage that can be done to a woman during birth is, or can be, sexual in nature. I suspect that the vast majority of cases would be better categorized as birth assault, but I still want to reserve the term "birth rape" for those especially outrageous cases where there was either a clear intent to dominate and humiliate the mother or a flat-out criminal disregard for the mother's well-being.

And at the very least, in cases where you can't establish intent or personal gratification at the pain and humiliation inflicted, there should be some sort of criminal negligence standard so that doctors who claim to have had the best of intentions of saving the baby can still be held to a kind of reasonable person standard in which anyone should have known that treating a birthing woman this way was going to inflict terrible damage and psychological trauma. But as far as I know doctors are generally allowed to hide behind the "I was trying to save the baby" defense. And I think this is what motivates the push for recognizing birth rape and trying to force people to take it more seriously. In the absence of any culpability, and in the face of the cultural apathy regarding this issue, I think the tendency is to go to the furthest extreme in order to capture attention and shock people into taking it seriously and making changes. Does that make sense?


F replied to S:

S, that is it exactly--"rape" captures attention, and also underlines the severity of the woman's experience, in a way that "assault" doesn't--it's too vague.

"Medical assault" gets a little closer and is probably as precise as you can get, legally. But it doesn't have the visceral tug, and it doesn't really get at the wrongness of twisting the experience of birth, which is so particular to women, into an occasion for medical battery.

"Rape" didn't even mean what it means now at one time (it was closer to "unauthorized use of woman's vagina/uterus by a man who is not her owner", yes?).

So I guess I don't worry about the appropriation as much; I think that a woman assaulted during birth has enough in common with a traditional rape victim that outside of a courtroom, "rape" does not really get diluted, in the way that "that spinning class really raped me!" does.


B replied:

I agree wholeheartedly, F.


U replied:

Sorry for the later reply.

I totally get D's reply, and agree with it. I think it's hard when discussing it because, for me, it all bends on how "rape" is defined in a certain area. However, I also agree with F in that I'm not really worried about dilution. I think part of the issue in the back of my head is what used to NOT be considered rape (date rape, marital rape, etc.), and how taking the power away from the victim to name their pain is somehow...abhorrent to me. I think "assault" is convenient only in that it gives an actual criminal place to attach the events but doesn't really describe it to me.

It's tough, because we don't want to encourage the idea that women are lovely little fragile creatures who require special delicate touches (by saying that women are especially vulnerable - I've had several professors describe birth as making women "incompetent") but the situation is a bit tough.


S replied:

Yes - I agree on the point about not making women into fragile little creatures. But I also think that being vulnerable (especially during a specific event in your life) and being incompetent are two totally different things. I think the dominant and convenient myth is that women are incompetent during labor and delivery, but you can work to eliminate that while still acknowledging the huge power imbalance between birthing women and medical care givers, and the resulting vulnerability and potential for abuse.
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Your thoughts?




Additional posts on birth rape:
On Birth Rape, Definitions, and Language Policing by Cara at The Curvature
So, About this Birth Rape Thing by Emjaybee at The Unnecesarean
SEXIST BEATDOWN: Nation of Whoopi Goldbergs Edition by Sady and Amanda at Tiger Beatdown
It's not RAPE rape by Amity Reed at The F-word
Are there other posts that should be included here? Send 'em my way!