Why I’m skeptical of efforts to criminalize the sabotage of birth control

***UPDATED to fix Tressie’s twitter handle. Cuz that was embarrassing.***

Men sabotaging women’s birth control is A Thing.
It’s a form of abuse, an act of taking control over her own body away from a woman. Women suffering from domestic violence are often additionally victim to this as well as other forms of abuse, by men trying to keep them from leaving the relationship (which for obvious reasons is much harder when you’re pregnant or have children in the house), or sometimes just because it’s another form of control and DV is all about control. It is obvious therefore that sabotaging women’s birth control and other forms of reproductive coercion need to end, victims of this need to be able to seek justice, and perpetrators need to be made accountable.
Which of course means that now that a Canadian case has made a lot of people notice that this is A Thing, they want to criminalize it, based on the argument that the sexual assault laws in the U.S. would never suffice by themselves to persecute abusers for it*. Sounds sensible: if you think that the criminal justice system works even remotely well, then it makes sense to think that if someone commits an act of violence, they need to be sent throught the CJS for it. But this really does require the assumption that the U.S. legal system is just (or at least “close enough” to just to make it work more often than not)and therefore that criminalization will work as intended.

I’m skeptical. I’m skeptical, because when I read this twitter exchange between Lauren Chief Elk (‏@ChiefElk) and Brienne of Snarth (@femme_esq), I couldn’t help but acknowledge the truth of many of the points, if not necessarily their immediate applicability to the wider U.S. culture**. I’m skeptical, because I tend to come at these things from a harm-reduction-based perspective, and I’m not convinced that this will actually reduce rather than increase harm. I’m skeptical, because cultural myths play a huge role in the ways laws actually end up being applied.
For example, the Stand Your Ground laws don’t actually allow victims greater leeway in self-defense (see: Marissa Alexander***) but rather allow already privileged people to get away with violence even more. This is because cultural myths are such that black men and women are always seen as the danger, and white men and women always as the defenders of civilization. And how does this work with birth control sabotage? Our cultural myths claim that women are baby-crazy, and men don’t actually want kids; that women are more likely to be ok with an unplanned pregnancy than men (there’s how many movies with that plot? The one where an uncomplicated het-relationship gets derailed by pregnancy that switches the woman into “settling&nesting” mode while giving the guy a midlife crisis?); that women are more invested in committed relationships than men (see: ball-and-chain), and thus more likely to use desperate measures to prevent a breakup; etc. Hell, google “tricking into pregnancy” and see how that works out. As Brienne points out in the twitter dialogue, the cultural narrative is of a woman trapping a man rather than vice versa. Even the Daily Beast article linked at the beginning of this essay acknowledges this with a link to an article discussing NBA orientation for rookie players, in which the following quote appears:

They wanted us to see the dangers out there. They warned us about groupies poking holes in condoms, having hidden cameras and stuff like that. The temptations are hard to turn down, but if you don’t, you are subject to big problems.

And remember, we live in a society in which there are people convinced that women stealing sperm out of discarded condoms is some sort of epidemic (google “spermjacking” if you really want to know more about this; I wouldn’t recommend it tho).
So what I’m saying is this: when you’re operating within an extremely unjust legal system, you have to be exceedingly careful how you use it; in this case, the question is: how likely is it that criminalizing BC sabotage will be effectively used against actual abusers, rather than against women by e.g. dudes not wanting to pay child support?
BC sabotage is going to be a situation of he-said-she-said almost always, and “he said” will be always given more weight than “she said”, especially when other oppressions like race and class also work against the woman. I can imagine this even leading to greater reproductive coercion, if a guy who doesn’t want a kid threatens the pregnant woman to either get an abortion or be accused of spermjacking or some shit like that. I can also imagine that many women won’t report BC sabotage: consider the stigma BC has in this country (Sandra Fluke anyone? And she was a very privileged woman); consider the cultural myths about who sabotages BC; consider the “bitches be lyin’” trope. Basically, all the reasons ever mentioned in #IDidNotReport will figure in here as well, and we might well be increasing the potential for legal harassment of victims of DV, by giving their abusers another tool to subvert for their own needs.

Mind you, harm reduction is not the sole reason to criminalize something. The main other uses of criminalization in justice are punishment, normalization, process, and deterrence.
I reject the idea of punishment as a goal of justice, in general. Punishment of an offender as a goal of criminalization/incarceration (rather than a means towards another goal) relies on the notion that responsibility lies solely and entirely with the offender; it requires belief in a self-causing will, in the notion that an action is entirely and solely caused by the offender’s creation of a desire and opportunity to act as they did. I don’t accept this belief, because it goes against the evidence that shows us that the world outside our heads shapes our desires, priorities, and opportunities. Punishment for the offender and only for the offender (because how to you incarcerate social structures?) is an individualist erasure of the structural causes of violence.
So while accountability for the harm caused by an action is a sensible part of justice, punishment for its own sake is not. Making someone “pay the price” for a crime to society or to the victims has to actually be of value to society or the victims, and locking someone up does not, per-se, produce any value to society/victims. It can only do so as a means to a goal. Which brings us to the other aspects.
Despite the saying “morality cannot be legislated”, a law actually is a normative statement. And the fact that plenty of people can’t tell the difference between legal and moral (nor the difference between illegal and immoral)seems to indicate that normalization happens, if not immediately than into the next generation at least. Basically, if you allow or forbid something and the world doesn’t come crashing down (or significantly inconvenience anyone with social visilibity), people get used to it and start thinking of this as the new normal. So folks saying that it would make a statement that society doesn’t condone reproductive coercion if it were criminalized do have a point. But as a main reason to criminalize it, it seems not enough, given that it would also be a weak normative statement. Not because a law is a weak normative statement per-se, but because laws that go against strongly entrenched cultural myths have their normative function subverted. E.g. rape being illegal does mean the cultural idea is that rape is bad, but it’s entirely abstract; not only do some actual rapes get defined out of the rape category, the culture also creates a lot of exceptions (the most jarring example is prison-rape: people generally don’t deny it’s rape, but they treat it like a joke or a deserved punishment). I suspect the same will happen with these situations: even if we’d achieve a normalization of the belief that reproductive sabotage is a thing and a bad thing, the cultural mythology around it will subvert it so that real instances will be treated as not-it, or as exceptions where it’s somehow ok.
Process means simply giving someone a clear, pre-set way of dealing with something. Now, I don’t think any engagement with the American CJS is easily understandable, simple, etc. but having a set process and a set of legal tools to deal with something is usually preferable to no procedure at all. This is likely the strongest case for criminalization, because it’s useful and helpful to be able to take out restraining orders, have a concrete, codified thing to accuse your abuser of, and have other rules you can lean on when it’s hard to try to think your way out of a situation. But acknowledging this absolutely requires remembering that this will be useful primarily to those with educational and class**** privilege; who don’t make up the majority of DV victims.
Deterrence is/can be an acknowledgement of the way social structures shape choices. To deter means to change the environment in which a choice is made, and introduce a desire (the desire to avoid being held accountable) to hopefully outcompete the desire that would be satisfied by the criminal action. These changes can lead to reductions in the occurrence of a harmful act, and can therefore be actually useful. As such, deterrence is not inherently flawed the way punishment is; but it needs to actually accomplish the environmental and internal changes, or else it’s bullshit. A law as deterrent tends to only work if the likelihood of getting caught & convicted is high, or at least thought of as high. Laws that have low rates of perpetrators getting caught and getting convicted make lousy deterrents: if you get away with it sometimes, you learn that you can get away with it always, even if it’s not true. Works like that for texting-and-driving, for underage drinking, for pot-smoking-while-white, and because of rape culture it also works like that on rape. My suspicion is that given the difficulty to prove sabotage and the power-disparity in literal he-said-she-said situations, arrest and conviction rates would be low. So, not an effective deterrent in the long run.

So to sum up: there are positive things that criminalization could possibly accomplish, but these effects seem to be overall fairly small and doubtful given the current cultural narratives. And the way selective application of these protective laws protects aggressors more than victims, there are potentially many negative consequences to victims. The potential for abuse, for being directed against victims of domestic violence, and for even increasing some forms of reproductive coercion is pretty big given the current social narratives. I worry that the negative effects far outweigh any positive ones.

Not that I’m saying we shouldn’t do anything about this problem, but I’m more and more thinking that putting the tools for defense in victims’ hands rather than in a severely broken, anti-woman, anti-poor, anti-PoC criminal justice system is the better approach at harm-reduction and empowerment at this time. So, some suggestions along those lines, to help free women from reproductive coercion without risking anti-woman side effects:

1)increase free and gatekeeper-free access to as many form of birth control (both the contraceptive and post-conceptive kinds): controlling women’s reproduction happens often with the cooperation of laws on birth control which make access complicated, time intensive, expensive etc, thus preventing women in DV situation from discreetly controlling their reproduction and from choosing options that would be less manipulable by a violent and controlling partner. Give women more options and access for BC, and in many cases you take away the means by which an abuser can coerce their reproduction.

2)Destroy the cultural myths that harm victims of reproductive coercion: these would the the ideas that consent to sex is consent to pregnancy; that reproductive coercion is something women do, rather than something abusive men do; etc.

3)Provide better safety nets and community support for single pregnant women and single women with children. When pregnancy and children no longer function as traps keeping the women from leaving (e.g. because there’s no women’s shelter that will accept all her kids), the utility of reproductive sabotage as insurance against leaving will diminish, and with it the value of this action to abusers.

None of those will stop all or even many cases of reproductive sabotage immediately; but neither would criminalization. I just think that the suggestions above would also have fewer negative side effects on already victimized women.

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*it’s complicated, but basically Canada has some stricter ideas about what is or isn’t legally consent than the U.S. does. The Canadian case that kicked off this interest in criminalizing reproductive coercion was one in which the sabotage was treated as aggravated sexual assault because even though the woman consented to sex, she didn’t consent to unprotected sex. Basically, at least in Nova Scotia, it’s (as the case stands now) legally true that consent to sex is not consent to pregnancy. As this legal article explains, that’s not true in the U.S. because of that nasty thing called “generalized consent”, plus legal-structural shit that went over my head because IANAL.

**the conversation includes the following tweets:

[Lauren Chief Elk @ChiefElk
Decolonizing Anti-Rape Law and Strategizing Accountability in Native American Communities via @andrea366 http://communityaccountability.files.wordpress.com/2012/06/decolonizing-antirape-law.pdf ]
[Lauren Chief Elk @ChiefElk
Decolonizing Rape Law: A Native Feminist Synthesis of Safety and Sovereignty via @sarahdeer http://turtletalk.files.wordpress.com/2009/10/deer-decolonizing-rape-law.pdf ]
The papers deal with the question of sexual assaults and tribal courts. They’re amazing and I find these immensely interesting and good material for thinking about anarchist communities, because not being able to deal with sexual violence is a major flaw of every idea (and praxis) of anarchist community I’ve ever encountered. But most women in the U.S. don’t at the moment live in the kinds of communities that would allow for analogues to tribal court justice.

***relevant and timely, on Friday there will be a discussion on Marissa Alexander and how DV laws backfire on minority women:

[Lauren Chief Elk ‏@ChiefElk
So on Friday we’re going to talk about shifting anti-violence, criminalization of DV, & Marissa Alexander w/#FreeMarissa. Get ready to join.]

****class privilege is very relevant, even if you “fake” it. In this essay on poor people and expensive stuff, Tressie McMillan Cottom (@tressiemcphd) recounts the story of her mother helping people in the community with bureaucracy; and how her mother had an expensive outfit to do it which seemed to gain her “respectability” from the office folks, at least enough to make it possible to get stuff done where the people her mom was helping couldn’t.

“women” didn’t

When Obama won re-election, the media story went that “women voters” rejected Romney because of his stance on reproductive rights*. This framing is not a false claim in itself; women as a group really were more likely to vote for Obama than for Romney (55% and 44% respectively). And since many sites that present demographic stats on such elections are doing so by sorting people into single-demographic-marker categories**, that tends to look like the entirety of the story. But it isn’t. When you take apart these large demographic lumps, as CNN did here, it becomes obvious that “women voters” didn’t vote as a block at all. Only 42% of white women voted for Obama, while 96% of black women and 76% of Latina voters did; they’re the ones who won the “women vote” for Obama***

Why am I bringing this up now, a year after the presidential election?

Because the same narrative about “women voters” is being dragged out to explain the Virginia Governor race which Ken Cuccinelli just lost and in which according to the exit polls(pdf) barely over half the women voted for the Democrat in the race. Such articles were being written before the race (and Rachel Maddow talked about the gender gap as well), but the election results show a much smaller gap than had been predicted. And yet, despite that tiny number, people are writing articles again about how “women” elected the Democratic candidate****. Granted, they’re a bit more nuanced this time than during the presidential race, actually looking a bit deeper at the demographics; but the overall narrative and the headlines stay the same. Even though white women, again, voted for the Republican candidate (54%), while only 38% of them voted for the Democrat.

What bothers me about the narrative of “Women” deciding these elections is not that they’re not strictly speaking true; statistically they’re true but incomplete. What bothers me is that the narrative exemplified in these articles then gets picked up by individual white women as well as organizations with few minority women as a story about a collective “us” that voted for Democrats (or against Republicans) that completely erases the regressiveness of the average white woman voter as well as the heavy lifting done by progressive minority women; a heavy lifting done in the face of ongoing voter suppression, to boot. This appropriation of positive actions is in many ways the twin of the appropriation of violence statistics in which a too large demographic “we” is made out to be victims of violence, when most of the incidences come from oppressed groups within that huge demographic but they are used as talking points to promote the agenda of the (relatively) dominant groups within it.

Not only is this erasure and appropriation rather disgusting in itself, it will also assure a complete lack of self-reflection, a lack of trying to figure out how to stop the white, wealthier, and/or married women from voting against the interests of all other women, and to some degree even against their own. There will be too little analysis of race and class, even though they are so eminently relevant to why a particular group of women keeps on voting for the most toxic candidates available.

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*for example, here, here, and here

**like this one orthis one

***and by the way, the same thing was true for the “youth vote”, since only 44% of white 20-somethings voted for Obama.

****for example here and here

North Dakota’s War on Uteri, continued

Just got back from the Fargo rally organized by Stand Up For Women North Dakota against the ridiculously restrictive anti-abortion laws winding its way through the legislature. It was fucking cold, and I ended up standing for most of it on a 3 meter tall pile of snow and ice. Also, I was pleasantly surprised by actually getting to listen to a Republican who was a)actually one of the organizers of this rally; b)commented favorably on the importance of freedom from religion; and c)actually said that she’d expect people to hold her accountable in her office on a school board should she ever try to get religion into the curriculum. I didn’t know such Republicans even existed in this country anywhere.

Anyway, the rally (and its sister rallies in Bismarck and Grand Forks) was specifically a call for the governor of ND to veto proposed laws which have made it through both house and senate, and which should land on his desk sometime today. Three of them I’ve mentioned in my previous post on this, while the fourth one is one that had previously escaped my attention. The bills are: SB2305, a TRAP law designed to close down the last clinic in ND; HB1305, meant to prohibit “abortions for sex selection or genetic abnormalities”; HB1456, a “heartbeat” bill; and SB2368, which is the one I’d previously missed and which actually proposes to cross out the “within present constitutional limits” part and replace it with a “state’s compelling interest in the unborn human life from the time the unborn child is capable of feeling pain” line (among other shit*; basically, this is an attempt at a 20-week-abortion ban), and which also includes this last minute attempt to block the federal sex-ed grant that NDSU received and that was finally unblocked as (currently) perfectly within ND law (emphasis mine):

Except as required by federal law, no funds of this state or any agency, county, municipality, school district, or any other subdivision thereof, or institution under the control of the state board of higher education, and no federal funds passing through the state treasury or a state agency may be used:
1. As family planning funds by any person or public or private agency which performs, refers, or encourages abortion; or
2. To contract with, or provide financial or other support to individuals, organizations, or entities performing, inducing, referring for, or counseling in favor of, abortions.

As of this moment, the bills have neither been signed nor vetoed by the governor; and this morning, when asked, all he had to say on the topic was basically “blah blah flood is more important blah blah won’t comment until they’re on my desk” (audio found here. And even if he vetoes it, the same shit that just went down in Arkansas can also happen here: the veto can still be overridden. I don’t know that there’s much hope that it won’t come to that, one way or another. (UPDATE: ND Governor Dalrymple is a douche canoe)

And even if by some miraculous event the laws get vetoed AND the veto won’t get overridden, there’s still SCR4009, which also has been passed and which means ND will have a referendum on a personhood amendment in 2014.

Worst state for uterus-bearers, indeed.

UPDATE: here’s a picture, and here’s the InForum article about the rally

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*for example: they define abortions for ectopic pregnancies and to remove dead fetuses out of existence; it excludes even major psychological damage from the “substantial and irreversible physical impairment of a major bodily function” which would allow for an exception to the law, and specifically excludes being diagnosed as suicidal from being a medical emergency;

North Dakota’s War on Uteri*

First, here’s the series Rachel Maddow did on the abortion clinics in states with only one such clinic:

Threats and traps push Mississippi to the brink of 40-year rights rollback
Last bastions of an unprotected right under attack
Women bear burden of extremist effort to undermine Roe v. Wade
GOP war on women continues to rage in the states
UPDATE: here’s another clip for that series, this time with Melissa Harris-Perry: Anti-abortion crusade misses target, hurts vulnerable women

Second, this is what’s going on in North Dakota in terms of proposed legislation:
North Dakota Lawmakers Have Plenty of Anti-Abortion Bills to Choose From, plenty meaning all these different bills: SCR4009, a fetal personhood bill which would require a 2014 vote to amend the constitustion and which was just approved by the ND Senate; SB2302, which would have banned chemical abortions and all abortions except those to save a woman’s life, which luckily seems to have failed in the senate 18 to 29; SB2303 another personhood bill, which passed the senate 25 to 22 and is now in another Committee Hearing; and SB2305, a TRAP law designed to close down the last clinic in ND, which has also passed the senate 30 to 17. Oh, and then there’s the newly proposedHB1305, which would prohibit “abortions for sex selection or genetic abnormalities” (which really just amounts to “please jump through more hoops”)
UPDATE: another one: HB1456, a “heartbeat” bill, passed by the house 63 to 28

And in addition to the anti-abortion bills, we have an anti-poor-people bill, HB1385, proposing a Fee to Get Welfare, by making welfare applicants pay for the mandatory drug test themselves (Because we all know people applying for welfare have lot’s of spare cash, amiright?); the deeply uninformative SB2175 titled “The liabilities of husband and wife” which seems to want to make separated-but-still-married folks responsible for each other’s debts; which sounds kinda dangerous.

And then there’s NDSU president Bresciani, caving in to assholes in the legislature and freezing funding two professors at NDSU have received to promote proper sex ed in this state: Sex Ed Program Provokes Fight Over Planned Parenthood in North Dakota

In conclusion, this state fucking sucks.

P.S.: completely unrelated to the topic at hand, ND is apparently also one of those states throwing a fit over federal gun laws: HB1183, a bill “relating to forbidding state governmental entities from providing aid and assistance to the federal government or any other governmental entity for the investigation, enforcement, and prosecution of federal firearms laws not in force as of January”.

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*title changed, because I just realized I was doing what I criticize other people for. So: anti-abortion legislation concerns many women, but not all, since some don’t have uteri and can’t get pregnant; and on the other hand, it also concerns some non-women because they have uteri, i.e. trans men and some genderqueer folks.

Think Progress gets something wrong

couple weeks ago, The article Idaho Lawmaker Compares Abortion To Prostitution* appeared on Think Progress. It’s in the style of their many other “Republicans say outrageously horrible things” articles, but I think they screwed it up this time.

Mind you, saying that “Prostitution is a choice “more so than an abortion would be [...] Because (in an abortion) there’s two beating hearts. And then there’s one” is pure, unadulterated bullshit. Both are choices about one’s bodily autonomy, and consequently neither is more of a choice than another. Aside from that, these two issues have little to do with each other though, as one is a medical procedure, and another is a form of making money. So the Republican in question, State Rep. Ron Mendive from Idaho, was definitely being a fuckweasel and talking out of his ass. And being anti-choice, which one wouldn’t know from reading the Think Progress articl, because the article never mentions that rather salient point. And then, the article also buys into incredibly toxic narratives about sex work, to boot. The writer of the article, Annie-Rose Strasser, introduces Mendive’s comments as follows (emphasis mine):

Presenting abortion and prostitution as cavaler [sic] choices women make and ignoring the real danger of sex slavery, State Rep. Ron Mendive (R) elicited “audible gasps” on Wednesday during a meeting with representatives from the group, which later condemned his comparison

As far as I can tell, dude was talking about prostitution, not sex slavery. Those are two entirely different things, and conflating them like that is toxic bullshit. Besides, how does it help victims of actual sex slavery for prostitution to be illegal? How does it help to criminalize that which the enslaved folks are being forced to do against their will? doesn’t that merely criminalize the victims? Also, I don’t know about “cavalier choices”. I can’t find a good source for what the dude actually said, but he seems to have talked in general about a “double standard” where abortion is seen as a choice, but prostitution isn’t. That’s not saying they’re “cavalier choices”, it’s just saying they’re choices. And I’m afraid that he’s kind of right about this: there is a double standard. And since the Think Progress article doesn’t provide the context of this comment, it’s hard to tell whether what he said was outrageously shitty or not. If he argued for legalization of prostitution on the basis of bodily autonomy, then he’d be right. If he was trying to argue that both should be illegal, he’d be a toxic assface. But that isolated quote, by itself, is simply true.
And then there’s a quote by one of the ACLU folks about this comparison:

He was correlating a criminal action with something that is constitutionally protected. Those are two completely separate issues,

ok, they’re two completely different issues, but not because one is legal and one isn’t. Comparing legal and illegal things is how you figure out whether something should remain illegal or not (see for example alcohol vs weed comparisons). Now again, the article doesn’t provide the context of this speech**,focusing more on the outrage than on actually reporting details that would show why that comparison is supposed to be so outrageous. It simply assumes that the comparison is outrageous per se, not because it is being used in an outrageous argument that both should be illegal to undo the double standard. If he had instead argued that prostitution should be legal because it’s also about the freedom of choice about one’s body, he’d have a point***.

So my complaint about this article is twofold: for one, bringing sex slavery into this is irresponsible. It’s very similar to arguing against weed by arguing that it may lead to driving under the influence. For two, writing an article as if it should be obvious that a comparison like that would be a Todd Akin moment regardless of context is false and irresponsible. There are contexts in which arguing that there exists such a double standard is indeed perfectly valid. So the context should have been included, the context being that he’s an anti-choicer who was trying to argue that giving women choices leads to horrible things; like abortion, or prostitution.
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*the url ends with /idaho-sex-slavery/ which… um… no. O.o
**the RHealitycheck article it links to does though. Despite being much shorter, it actually bothers to show WHY his argument was outrageous, by including the context. THAT is how the article should have been written.
***granted, that would be an amazingly weird thing to argue for a Republican, but we’re supposed to be upset at what he said; and for that, you need to show why it’s supposed to be upsetting, ffs.

A kitteh and a link dump

I was going to write a post using most of these, but I changed my mind. Still, the links are informative reading, so I’m just going to post them without the article that was supposed to go around them. And just to make the post more than just a dry linkdump, here’s a picture of Dusty:

Not a safe space — a good 101-level explanation of what the term “safe space” even means.

Michigan Legislators Demand Control of the Organ Which Must Not Be Named — summary of what thedrama in Michigan, with summary of the effects of their anti-woman bill

Chicago Police misclassifying trans women of color in the sex trade as “johns” in its “end demand” initiative — article on how the police manage to turn a anti-procurers-of-prostitution campaign into a campaign to arrest, out, and shame poor trans women of color

Despite The Evidence, Anti-Choicers Persist in Lying About Emergency Contraception — article by Amanda Marcotte about something I’ve been saying repeatedly: the science has already shown that hormonal contraceptives, including Emergency Contraception, doesn’t cause implantation failure.

Respect as it applies to anti-harassment policies — A conference organizer states his opinion about the relative importance (or lack thereof) of whether anti-harassment policies will make it harder for people to get laid.