Wednesday, April 17, 2013
Khiara M. Bridges (Boston University School of Law) has posted When Pregnancy Is an Injury: Rape, Law, and Culture on SSRN. Here is the abstract:
This Article examines criminal statutes that grade more severely sexual assaults that result in pregnancy. These laws, which define pregnancy as a “substantial bodily injury,” run directly counter to positive constructions of pregnancy within culture. The fact that the criminal law, in this instance, reflects this negative, subversive understanding of pregnancy creates the possibility that this idea may be received within culture as a construction of pregnancy that is as legitimate as positive understandings. In this way, these laws create possibilities for the reimagining of pregnancy within law and society. Moreover, these laws recall the argumentation that proponents of abortion rights once made – argumentation that one no longer hears and sees in the debates surrounding abortion. However, recent developments in antiabortion argumentation – namely the notion accepted in Carhart II that it is abortion that injures women – counsel the retrieval of the argument that unwanted pregnancies are injuries to women. Thus, the sexual assault laws are means to legitimatize a claim that may serve as an effective counterdiscourse to prevailing antiabortion argumentation.