How would a rape exception for abortion work?

The Joint Oireachtas Committee on the Eighth Amendment of the Constitution is discussing whether abortion should be permitted in cases where a pregnancy was conceived as a result of rape. I do not see how this could be implemented within our legal framework, or indeed it can consistently proposed as an exception.

Rape is defined in Irish law by the Criminal Law (Rape) Act, 1981 as occurring when a man has sexual intercourse with a woman who does not consent and that the man knows she does not consent or that he is reckless as to whether she was consenting. It further states that where consent is an issue for the jury, they shall consider the presence or absence of reasonable grounds for the man’s belief that the woman was consenting.

This is in itself illustrates why securing a conviction for rape is not simple. The DPP must gather sufficient evidence to prepare the prosecution for such a case. And a man accused of rape is entitled to a fair trial, and the preparation of his case. This should of course be done expeditiously, but it is not reasonable to suppose that it could be achieved, even with the best use of resources, in the time needed to allow a conviction for a woman who is pregnant and wishes to have an abortion. In the interests of the victim, of the defendant, and of society in general, this is not a process which should be rushed.

While sexual violence can manifest itself in certain physical symptoms, there is no guarantee that a victim of a sexual crime will be able to demonstrate these. It can be useful for the DPP to gather evidence of this nature if present, to demonstrate that force occurred, if this is at issue, but it would not be reasonable to subject anyone to this before allowing them to have an abortion.

Someone who wants to have an abortion should be able to have it at the earliest possible opportunity. It is safer for them to have medical abortions, using pills under supervision, rather than surgical abortions. It is better for the pregnant person themself that they can alleviate the trauma of an unwanted pregnancy process as early as possible. And inasmuch as there is a moral concern for the life of the unborn, this becomes greater as the foetus develops during pregnancy. Whatever procedures we were to put in place to allow an abortion, even at earlier stages of the process, will delay the date of the abortion.

Not every woman who becomes pregnant as a result of rape will come forward and report the crime, within the time of their pregnancy, or at all. They may not believe they could withstand a jury trial, and the cross-examination that comes with that, or they may not just be ready to tell their story. They may come from a culture or community that stigmatises pregnancy outside of marriage, even in cases of rape, and fear the social consequences of being the complainant in a trial. Or it may have been someone they were in a relationship with, who they are financially dependent on. Or it could be someone they know socially.

Consider that a woman might not have consented, but that man honestly believed that she was consenting. Even with the expanded legislative definitions of lack of consent provided in legislation this year, the law allows for the rare mistake. What about someone in a coercive or controlling relationship, where a particular act of intercourse might not have been without her consent, but the nature of the relationship as a whole brings it into question.

Then from a legal and constitutional perspective, how could we coherently tweak the provisions of Article 40.3.3° to claim to vindicate a right to life of the unborn, except in circumstances based on the mental states of the genetic father at the time it was conceived? What would the terms of legislation be that would allow or proscribe an abortion along these specific narrow terms?

While often proposed from a sense of compassion for a woman who has found herself in a terrible situation, it also indicates that the prohibition on abortion is not just about protecting the life of the unborn. Sometimes the proposition comes with the implication that it should be allowed because a woman finds herself in a situation “not of her own making”. This is not a moral assessment of the right to life on the unborn, but rather a moral assessment of how someone became pregnant.

When faced with a crisis pregnancy, someone should be able to access all options, including a termination, at the earliest possible time, without being subject to scrutiny of the circumstances of its conception. Especially because some pregnancies occur because of rape, we should not ask those seeking an abortion to relive this trauma.

Barrister working in Dublin