A . Sexual Assault

Societal fears and conceptions of rape typically concern stranger rape, not the more common occurrence of sexual violence perpetrated by an intimate partner.³ Rape laws respond to stranger violence, not IPV — which encompasses physical and sexual violence, psychological abuse, coercive control, economic abuse, stalking, and harassment, and is often recurring, complex, and increasingly severe over time.Reference Stoever⁴ Overall, one in three women in the United States experiences IPV, with higher rates among low-income women of color and LGBTQ people.Reference Petrosky⁵

Criminalizing rape originated as property laws protecting a father’s ownership of his daughter’s virginity,Reference Peacock and Bergen⁶ and courts granted parental immunity to fathers who raped their daughters.⁷ Rape laws also did not punish men who raped their wives because consent was presumed to be given through matrimonyReference Blackstone⁸; under coverture, wives were viewed as their husbands’ property, making it conceptually impossible for a man to rape his wife.Reference Bennice and Resick⁹ Only in 1993 was marital rape explicitly criminalized in America, and vestiges of the marital rape exemption remain today.¹⁰

Nevertheless, abuse survivors often experience sexual assault and reproductive control leading to unintended pregnancy and impeding access to abortion. Regarding the prevalence of co-occurring abuse, over two-thirds of women in physically abusive relationships also experience sexual violence,¹¹ and those women are at heightened risk of homicide.¹² One-quarter of abuse survivors report that their partners have forced them to become pregnant,¹³ and research shows IPV escalates during pregnancy.Reference Cook and Bewley¹⁴

The Supreme Court in Planned Parenthood v. Casey, with Justice O’Connor writing for the majority, understood that IPV affects reproductive autonomy and decisions about pregnancy outcomes.¹⁵ The Court deemed Pennsylvania’s spousal notification provision an unconstitutional undue burden, despite the provision having exceptions. Relying on empirical evidence about IPV, the Court found that spousal notification requirements expose married women to abuse, control, and economic duress, and held that statutory exceptions are insufficient protection.¹⁶

Understandably, a common reason for seeking an abortion is the desire to not be tethered to an abusive partner.Reference Chibber¹⁷ People who seek abortions are nearly three times more likely to have been victimized by an intimate partner in the past year compared to those continuing pregnancies.Reference Bourassa and Berube¹⁸ Furthermore, women seeking a subsequent abortion are more than 2.5 times as likely as those seeking a first abortion to report histories of physical or sexual violence by male partners.Reference Fisher¹⁹ Consistent with Casey, recent studies confirm that IPV causes delays in seeking abortion services, which then extends periods of abuse due to pregnancy and compounds other obstacles to abortion access.Reference Ostrach and Cheyney²⁰ Research also shows that abortion access reduces IPV, including findings from the Turnaway Study that women who had an abortion reported a reduction in physical violence in contrast with those who were unable to obtain an abortion.Reference Roberts²¹

B . Reproductive Coercion

Calls to include rape exceptions in abortion bans rely on legal definitions of rape, which typically require sexual intercourse “compelled by force or imminent threat of force.”²² Similarly, legal definitions of IPV may narrowly focus on physical and sexual assault. For example, a civil protection order — a non-punitive remedy to intervene in, treat, and prevent future abuse — in the District of Columbia requires the petitioner to prove an intimate partner committed “a criminal offense” against themselves or a family or household member.²³ In contrast, public health and psychology-based definitions of abuse include a range of controlling behaviors beyond what is criminalized, and reproductive coercion is recognized in medical and social science literature.Reference Phillips²⁴

Reproductive coercion is distinct from what many people — including judges — consider to be sexual assault yet is a central part of many survivors’ experiences of abuse. Reproductive coercion can be defined as the exertion of control over another person’s reproductive health decisions and contraceptive use or access by someone who is, was, or wishes to be involved in an intimate relationship; it can occur in a single instance or a larger pattern of abusive behavior.Reference Camp²⁵

“Birth control sabotage,” one form of reproductive coercion, includes preventing a partner from using contraception or efforts to sabotage their contraception use.Reference Phillips²⁶ Examples include inducing or manipulating a partner into having sex without contraception;²⁷ hiding, withholding, or destroying a partner’s contraceptives; not withdrawing despite agreeing to; removing a condom, vaginal ring, contraceptive patch, intrauterine device, or other contraception without a partner’s consent; or withholding money to prevent the purchase birth control.²⁸

“Pregnancy coercion” is a form of psychological reproductive coercion that may include threatening to leave or hurt a partner if they do not agree to become pregnant; threatening to leave or hurt a partner who becomes pregnant; forcing a partner to carry a pregnancy to term against their wishes through manipulation, threats, or violence; forcing a partner to terminate a pregnancy against their wishes; or intentionally injuring a partner to cause miscarriage.²⁹

Research shows especially high rates of reproductive coercion against teenagers and young women.Reference Miller³⁰ For example, in a 2019 study of sexually active high school females, approximately one in eight had experienced reproductive coercion in the past three months.Reference Hill³¹ Reproductive coercion has a wide array of consequences. Besides unintended pregnancy,Reference Woo³² reproductive coercion and lack of access to abortion care often result in post-traumatic stress disorder, which can lead to depression, substance abuse, anxiety disorders, and suicide.³³ In severe cases, reproductive coercion can result in intimate partner homicide, with homicide being a leading cause of pregnancy-associated mortality in the United States.³⁴

A . Increasing Prevalence of Abortion Bans with or without Rape Exceptions

The post-Roe state-by-state statutory landscape is in flux. Immediately following Dobbs, states that passed laws banning abortion were critiqued for failing to provide exceptions for rape, including Alabama, Arkansas, Kentucky, Louisiana, Missouri, South Dakota, Tennessee, and Texas.³⁵ Other states imposed bans at set gestational times without allowing rape exceptions.³⁶

New state laws that permit rape exceptions include hurdles, like Utah, typically requiring that the victimized individual report the sexual violence to law enforcement and that the physician overseeing or performing the abortion verify that the assault resulting in pregnancy was reported.³⁷ Similarly, abortion is illegal in Florida, Georgia, and Mississippi, with rape exceptions only when “a formal charge of rape [has] been filed” with law enforcement.³⁸

To utilize a rape exception, states including Idaho³⁹ and West Virginia⁴⁰ require that the patient provide the performing physician with the complete police report or child abuse and neglect investigative report (for incest) before an abortion can be performed. Because law enforcement will not release reports during an ongoing investigation, abortion is delayed and unavailable while waiting awaiting the report.Reference Camhi and Hughes⁴¹ West Virginia also only permits rape exceptions within the first eight weeks of pregnancy, or during the first fourteen weeks for a minor and requires parental notification, furthering the virtual impossibility of accessing abortion care.

B . Insufficiency of Rape Exceptions

Pre-Dobbs, abuse survivors experienced significant barriers to timely and safely accessing abortion.Reference Mainey⁴² Post-Dobbs, restrictions on abortion cause abused individuals to be more vulnerable to control, and rape exceptions give the false impression that rape is easy to define. Instead, rape is difficult for many survivors to label, IPV survivors rarely desire carceral responses, and rape exceptions are challenging to exercise.

Against the backdrop of historic reluctance to legally recognize marital rape, cultural invalidation of intimate-partner rape persists. Rape by an intimate partner is largely treated with skepticism and disbelief,⁴³ which discourages survivors from labeling their victimization as rape.Reference Jaffe⁴⁴ Research shows that over half of all rapes are “unacknowledged and thus not labeled by the victim as ‘rape,’” who instead dismiss their experience as a miscommunication.⁴⁵

The closer a survivor’s relationship is to the person who committed rape, the less likely they are to label the assault as “rape.” An abuse survivor who knew the assailant well or felt an emotional connection to or had previous consensual sexual relations with the abusive person is substantially less likely to use the label “rape” compared to identical actions by a stranger or new acquaintance.Reference Kahn⁴⁶ Lawyers will receive very different answers to the questions “Were you raped?” and “Was there ever a time you had sex because you were afraid of what would happen if you didn’t?” Research also shows that both the general public and abuse survivors often believe that sexual behavior within a relationship is a “private matter,” rather than “real rape.”Reference Lynch⁴⁷

Someone who does not define their experience as rape is unlikely to report sexual violence to police,Reference Bergen⁴⁸ as required by rape exceptions to new abortion bans. Intimate partners are understandably often reluctant to label a significant other as a “criminal” or “rapist,” even when acknowledging to themselves that they were raped,⁴⁹ or to desire a carceral response to abuse. In total, three out of four sexual assaults are never reported to law enforcement.⁵⁰ Also, survivors are often criminalized in the process of seeking help, police involvement increases risk of violence for survivors of color, and many survivors desire medical care without police.Reference Decker⁵¹

Even when abuse survivors report marital or intimate-partner rape, police officers often discourage filing a complaint or seeking to collect medical evidence, and religious advisers and domestic violence agency staff may fail to treat the experience as legitimate rape, invalidating a survivor’s experience and ability to address corresponding trauma.⁵² Rape exceptions requiring police reporting create the illusion of options but will not be exercised by most abuse survivors.