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But that’s not what it says, is it?

25 Jan, 13 | by Iain Brassington

Today’s blast of righteous indignation is directed towards New Mexico.  House Bill 206 says, in essence, that… well, it’s short, so here it is in full:

HOUSE BILL 206

51ST LEGISLATURE STATE OF NEW MEXICO - FIRST SESSION2013

INTRODUCED BY

Cathrynn N. Brown

AN ACT

RELATING TO CRIMINAL LAW; SPECIFYING PROCURING OF AN ABORTION AS TAMPERING WITH EVIDENCE IN CASES OF CRIMINAL SEXUAL PENETRATION OR INCEST.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1.  Section 30-22-5 NMSA 1978 (being Laws 1963, Chapter 303, Section 22-5, as amended) is amended to read:

“30-22-5.  TAMPERING WITH EVIDENCE.–

A.  Tampering with evidence consists of destroying, changing, hiding, placing or fabricating any physical evidence with intent to prevent the apprehension, prosecution or conviction of any person or to throw suspicion of the commission of a crime upon another.

B.  Tampering with evidence shall include procuring or facilitating an abortion, or compelling or coercing another to obtain an abortion, of a fetus that is the result of criminal sexual penetration or incest with the intent to destroy evidence of the crime.

C.  Whoever commits tampering with evidence shall be punished as follows:

(1)  if the highest crime for which tampering with evidence is committed is a capital or first degree felony or a second degree felony, the person committing tampering with evidence is guilty of a third degree felony;

(2)  if the highest crime for which tampering with evidence is committed is a third degree felony or a fourth degree felony, the person committing tampering with evidence is guilty of a fourth degree felony;

(3)  if the highest crime for which tampering with evidence is committed is a misdemeanor or a petty misdemeanor, the person committing tampering with evidence is guilty of a petty misdemeanor; and

(4)  if the highest crime for which tampering with evidence is committed is indeterminate, the person committing tampering with evidence is guilty of a fourth degree felony.”

SECTION 2.  EFFECTIVE DATE.–The effective date of the provisions of this act is July 1, 2013.

The new bit is section B.

In a statement, the congresswoman who introduced the Bill, one Cathrynn Brown, said that her intention was to punish the person who commits incest or rape and then procures or facilitates an abortion to destroy the evidence of the crime.

Hmmm.  Except that that’s not what it says, is it?  Maybe she should read the text of her own Bill.  It talks about procuring an abortion, as well as compelling or coercing another person to have one.

I think that the second bit is actually fairly unobjectionable.  To compel someone to have a medical procedure, whomever that someone is, and whatever the procedure, is to wrong them; and if you compel them to have the procedure in order to remove evidence of another wrong, then the wrongness is multiplied.  But, y’know… that first bit… um…

I mean, it might even be the case that witnesses and victims of a crime have certain responsibilities to participate in the criminal justice process, pro bono publico.  It’d remain to be seen what those responsibilities are, and how they’d be enforceable, but it’s not a self-evidently nuts idea from the off.  You might even be able to couch that in terms of self-interest: it’s in the self-interest of individuals for there to be a functional justice process, and a functional justice process requires participation.  But even there, there’d have to be a reasonability constraint; there might be some things that were not demanded by any such responsibility.

And, anyway: “tampering with evidence” implies a deliberate project of interference with the intention to disrupt the possibility of a prosecution.  That’s different from “acting in such a way as to make prosecution trickier”.  That much is made clear by section A of the Bill itself:

Tampering with evidence consists of destroying, changing, hiding, placing or fabricating any physical evidence with intent to prevent the apprehension, prosecution or conviction of any person or to throw suspicion of the commission of a crime upon another. [emphasis mine]

This explains why it’d be illegitimate to try to prosecute someone whose first reaction on discovering that they’ve been burgled is to clean up the broken glass.  For sure, the prosecutors might’ve thanked you for not doing so, but… well, that’s just the way it goes.

Section A would easily cover attempts to compel a raped woman to have an abortion as a means of hiding evidence of that rape.  But what’s notable about the Brown Bill, though, is that, in the light of this clause, the second must – strictly speaking – apply only to women who seek abortions with the intention of preventing the apprehension of the person who raped them.  And that’s weird.

Weird for a few reasons.  One: the number of women that desperate to protect their rapist is likely to be small.  This is the weakest reason, because there could be women who don’t want to see a prosecution out of fear of reprisal.  On the other hand, who would have reported the rape in the first place?  Is it credible that a woman should report a rape, and then have an abortion in order to protect the person she’d accused?  If she were facing intimidation, she’d be much more likely just to drop the claim, wouldn’t she?  Finally, if – just for the sake of the argument – a woman were coerced into having an abortion in order to hide evidence of a rape, but was not coerced into dropping the charges entirely… well, wouldn’t the Brown Bill amount to a demand that she be prosecuted for giving in to coercion?  That’s deeply odd.

Two: pregnancy isn’t evidence of rape anyway – just of sex; so ending a pregnancy will have only a minimal impact on demonstrating that the sex was rape on this occasion.  Not everyone gets pregnant from rape, but that makes no difference to the credibility of the claim that it happened; why, then, should no-longer-being-pregnant make a difference to whether or not a rape claim is credible?

Three: as Pat Davis says in the HuffPo article, “The bill turns victims of rape and incest into felons and forces them to become incubators of evidence for the state.”

The bleaker parts of my mind, I have to admit, have a grudging respect for the pro-life loonies of the GOP, in a Thomas Crown Affair kind of a way.  You don’t have to endorse theft to watch that film and think, “Yep: if I were an art thief, I’d aspire to that.  Bravo!”, and then go back to the business of not being an art-thief, and being generally anti-theft.  Same here.  I mean, look at the intellectual gymnastics that they have to perform given that they’re anti-abortion, but Roe v Wade is still valid law (forty years this week!), and so they have to work within its constraints.  Whether it be requiring paternal consent, or ultrasounds, or whatever else… well, there’s a real creativity involved in making it so bloody hard to get what the Supreme Court ruled to be an entitlement, and in making the lives of women who want to end their pregnancy that bit harder, and that bit more miserable.

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