Tennessee lawmakers must understand rape when drafting exceptions to abortion ban

To the ordinary citizen who follows the activities of the Tennessee General Assembly, the launch of the 2023 legislative session might have appeared more hectic and disorganized than usual. Such has been particularly evident around the abortion issue, as some Republicans have proposed exceptions to the Volunteer State’s abortion ban.

Currently, all abortions, even those performed to save the life of a pregnant patient, are illegal in Tennessee. Even children who are raped are required to carry their pregnancies to term, making Tennessee’s ban one of the strictest in the nation. Recognizing this, a handful of Republican legislators sought to provide exceptions to the ban, namely in cases of rape, incest, and life of the mother. 

While legislators were still debating bills that would carve out narrow legal exceptions for doctors who perform abortions to save the lives of pregnant women, the rape and incest exceptions bill, Senate Bill 857, barely made it one month in the General Assembly before being relegated to a general subcommittee, a procedural move that effectively ended the bill’s chances for passing this year.

Why did SB857 falter? Sen. Ferrell Haile, R-Gallatin, told The Tennessean he couldn’t get the votes necessary to advance the bill from the Senate Judiciary Committee.

Further, Gov. Bill Lee and Lt. Gov. Randy McNally have said they support Tennessee’s abortion ban as it stands, drawing into question whether Lee would even sign the exceptions bill if it passed the General Assembly.

Senate Bill 857 Set an Extremely High Bar for Rape Victims

Though its sponsors may have thought their intentions good, to read the language of SB857 is to stroll through a dystopian nightmare in the extreme burden of proof required of women and girls who would seek abortions in the aftermath of being raped. Just scratching the surface, the bill would have required women and girls to:

• Report the rape or incest to law enforcement (and for law enforcement to make its own report of the offense.)
• Submit themselves to a forensic medical exam if “appropriate and available.”
• Be no more than ten weeks pregnant if age 12 or younger.
• Be no more than eight weeks pregnant if 13 or older.

Further, the bill outlined a provision in which a “false report” of rape submitted to obtain an abortion would be punishable by “…a mandatory minimum sentence of at least three (3) years in incarceration, and the person must serve one hundred percent (100%) of the three-year minimum sentence.”

Despite the high bar, anti-abortion lobbyists like Right to Life decried SB857, and it ultimately failed to garner enough support among Republican legislators to advance to the next committee. The result? Tennessee women and girls who are raped are doomed to carry their rapist’s child. 

Rape is Not Always Black and White: Republican legislators are unable to legislate on something they do not understand

In many ways, the language of SB857 and the timeline of how quickly it failed in the General Assembly is a testament to how little most Republican legislators know (or care) about rape. Rape is a very difficult crime to prove, as prosecutors must be able to prove that the defendant knowingly had intercourse with the victim against the victim’s will. This high bar does not consider the myriad ways women are coerced, browbeat, manipulated, and pressured into having sex.

The troves of scholarly work on this are almost immeasurable.

The Pew Research Center states, “Women are much more likely than men to say they have been pressured for sex (42% vs. 19%).”

According to a study published in the Journal of the American Medical Association, one in 16 women and girls admit that their first sexual encounter was non-consensual, with the mean age of forced sexual initiation occurring at 15.

A study published in the Lancet found that one in ten women are victims of sexual coercion, meaning they were coerced into sex against their will without such coercion reaching the point of violent rape.

Data published by the National Domestic Violence Hotline found that 13% of women will experience sexual coercion in their lifetime. At least 27.2% of women will experience unwanted sexual contact in their lifetime.

Those findings barely skim the surface of the ocean of information describing how women are pressured, coerced, and manipulated into sexual activity with men. Further, data almost certainly underestimates, as it relies on self-reporting. The data does not account for the unknown numbers of women who have been coerced into sex and who stayed silent about it.

All of this information is publicly available to legislators, yet bills in the Tennessee General Assembly that place a high bar on raped women and girls (and which threaten recrimination if plaintiffs are unable to meet that bar) do not reflect the nuances of manipulation, the complications of patriarchy, and the societal pressures women have faced for millennia.  

Tennesseans Want Rape and Incest Exceptions. Will Their Representatives Legislate Accordingly?

According to a Vanderbilt poll, 75% of Tennesseans believe abortion should be legal in cases of rape and incest, with 62% of Republicans, 78% of Independents, and 93% of Democrats agreeing. Will Republican legislators continue to answer to powerful anti-abortion lobbyists like Tennessee Right to Life? Or will they work to reflect the wishes of their constituents?