A lot about this story bothered me. Some of it has to do with the reporting (or lack thereof) rather than the details... though if I knew for sure, I might still be disturbed.
First of all, the woman is said to have "the mental capacity of a six year old." Yet it is questioned if she had "consensual" sex with the father of the child. How is this even possible? Does the idea of statutory rape not apply in the case of impaired mental capacity? If not, whyever not?
Secondly, from the way the story reads, the judge stated that in some cases, the court would have the authority to force an abortion, in spite of the wishes of the woman and the parents (who are her legal guardians) -- and possibly even the doctors involved. What? In what case ever would it be acceptable for a court to order a person to have an abortion?
If the woman and her parents do not want an abortion, why was it ever on the table to start? What justification does anyone have to bring it to the discussion in that case?
Finally, a question not about details but about our legal process. In this story, it appears that the woman and her legal guardians agree about carrying the pregnancy to term. What would happen if they disagreed? Whose "rights" would trump? Whose rights should trump?
To your first question about statutory rape, no, statutory rape does not apply at all in the case of an adult with impaired mental capacity. The reason legislatures pass laws prohibiting statutory rape is because children don't have the capacity to consent to sex, but mental capacity is never part of a judges or juries analysis. All a court looks at in a statutory rape case is whether the persons literal age is below a certain number (which varies somewhat by state). But I agree that the comment about not knowing if it was rape in this case is bizarre. If the woman really has the mental capacity of a six year old, then it seems obvious to me that she can't have consented, and therefor it has to have been actual (not statutory) rape.
ReplyDeleteFrom the article, it looks like the concern here is about health, both of the woman and of the fetus. The article mentions concerns about the effects of the woman's medications on the fetus, and says "The woman's parents said that while the pregnancy poses health risks to their daughter and the baby". In an extreme case, say if it were medically certain that continuing the pregnancy would result in the death of both the woman and the fetus, then I think it would be right for a judge to order an abortion, regardless of what anyone else wanted. It doesn't look like this case is that extreme. The article says that the "medical experts back their decision to continue the pregnancy", and given that I think the judge is right to allow the pregnancy to continue.
As to your final question about what would happen if the woman and her guardians disagreed about continuing the pregnancy, I don't know where the law would be. My opinion is that in a case like this, where the woman has the mental capacity of a six year old, the guardians decision should win. I don't know many six year olds that are really capable of understanding the consequences of their medical decisions.
1. The idea of "statutory" being applied to the case of rape in persons who are mentally impaired is interesting. While it doesn't happen right now (as far as I know) perhaps there should be (perhaps there is?) a different type of charge for this. Something that would acknowledge that the perpetrator raped someone who was not mentally able to consent.
ReplyDelete2. I agree with Beth on this. I see no situation in which the state should be allowed to mandate abortion. As far as I'm concerned, there is very little moral grey area here. Frank - even in the extreme case you suggest, the decision to abort or not should be in the hands of the woman (if she is mentally capable of making such a choice) or her legal guardians. Perhaps what bothers me about your response is the phrase "regardless of what anyone else wanted." What the woman/guardians "want" is paramount here.
3. The third situation is such a hard one. I don't have an answer, and could likely only form an opinion if an actual case like this came to light. Of course, when it comes down to it, I would err on the side of life and say that any way the child can be saved is the best route to take.
Responding to the third issue you raise, I believe that a judge would decide, using whatever standard is dictated under state law. I did a lot of research into the question of what happens when a girl in foster care is pregnant and is seeking or is being encouraged to obtain an abortion in a state which requires parental consent. In those situations, and in a situation like this, the appropriate action would be to appoint a guardian ad litem to represent the girl's interests. Of course, that assumes that a court is even made aware of a divergence of interests. I suspect that this is more common then we think -- that vulnerable women are frequently forced to have an abortion by their guardians or significant others, and abortionists simply do not push too hard on the consent issue.
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