Legislating for abortion in rape cases is very difficult

We need to talk about abortion and rape. Neither of these are comfortable subjects, but they are part of the real-life context in which the current debate about repeal of the Eighth Amendment takes place.

A whole series of published and unpublished opinion research conducted over the last two years shows that an overwhelming majority of the electorate strongly support the availability of abortion in Ireland for women who become pregnant as a result of rape or other criminal offences.

However, little attention has been given in public to date about how precisely providing for rape or incest as criteria for obtaining an abortion could actually be implemented.

Even establishing the scale of pregnancy as result of rape is difficult because there is such massive under-reporting of rape. The 2002 SAVI report (the research for which is now almost 20 years out of date) found that 42 per cent of women reporting sexual abuse had never told anyone about it.

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In evidence to the Oireachtas committee on the abortion issue, Noreen Blackwell, the director of the Dublin Rape Crisis Centre, and the Dr Maeve Eogan, medical director of the National Sexual Assault Treatment Unit service, estimated that about one in 20 of those who are raped become pregnant.

Of course not all those pregnant through rape chose termination. Blackwell told of how in 2016, 11 women disclosed pregnancies as a result of rape to the Dublin Rape Crisis Centre – four are now rearing the child; three had terminations; one had miscarried; one had a child adopted; one had a child fostered; and in one case the outcome was unknown. The figures may relate to recent or historic pregnancies.

Legal complexities

Both the Citizens’ Assembly and the Oireachtas committee also heard evidence from Tom O’Malley, senior lecturer in law at University College Galway, who set out in detail the legal complexities which would arise if the Oireachtas were to try to provide that rape would be a grounds for accessing abortion.

O’Malley offered no view on abortion policy, emphasising that it was in the realm of lawmakers and not lawyers, but his testimony will be worthy of revisiting again and again during the forthcoming campaign.

O’Malley talked about how one could see the various possibilities regarding the proof or validation required for a woman to access abortion for reasons of rape as being arranged along a spectrum.

On one end nothing short of a criminal conviction by a court would suffice to prove that the rape had been committed. At the other end of the spectrum, a simple assertion or claim by the woman in question that she had been raped could suffice.

On average it takes 645 days for a rape complaint to be finalised as a conviction or acquittal in a criminal court, so the former can obviously be ruled out.

Requiring a victim of rape to apply for the right to secure a termination would itself be traumatising

In the subsequent exchanges at the committee, O’Malley and Deputies and Senators grappled with a series of questions in a manner which illustrated the legal difficulties involved in establishing the “rape ground” for abortion short of criminal conviction.

These questions included:

If a woman comes forward seeking a termination on the grounds that a criminal offence has been committed, what kind of proof should be required of her before she can avail of abortion?

To whom or what process would she have to apply for an abortion? Would her complaint have to be reported to gardaí? Would she have to identify a perpetrator? If a perpetrator was identified, could this give rise to subsequent civil actions for defamation?

Would the perpetrator have a right to be heard? How would this operate if a woman says she had been raped by her husband or partner?

Would the perpetrator have the right to come forward and say it was not rape, and that he objected to the abortion taking place? Would that end up in court?

In what circumstances might it be permitted to mention in the course of a subsequent criminal trial that an abortion had taken place?

Traumatising

Requiring a victim of rape to apply for the right to secure a termination, or in some way to go through an assessment process, would itself be traumatising.

At one point O’Malley concluded that “many may opt to travel to England as they do now rather than go through the trauma of reporting which might be required to access [a termination] in Ireland”.

Those TDs and Senators who accept that the current position is no longer appropriate but who have said they don’t want to go with the 12 weeks proposal from the Oireachtas committee need to tell the electorate what if any alternative they are proposing to address the circumstances of women pregnant as a result of rape.