Chris Smith and "Forcible Rape," a Brief History

Chris Smith, Republican Representative for New Jersey’s 4th Congressional District, has a well-documented history of opposing abortion and restricting women’s reproductive rights. In the 99th Congress (1985-86) Smith introduced two amendments to House Resolution 3067 to ban federal funding for all abortion, including instances of rape. He later said of pregnancies conceived through rape that “these too, should be protected.”

Those efforts failed, and it would seem that Smith had moderated his views on abortion somewhat. But Smith is a patient and ardent opponent of all abortion rights, he simply tried to find the next most restrictive policy he could pass into law. In 2011, he showed he was still willing sacrifice anything and punish anyone in his anti-abortion crusade.
Abortion is a sensitive and contentious issue for Americans, and while I am decidedly pro-choice, I understand the discomfort with abortion so long as it only affects one’s own life. However, the implications of Smith’s 2011 decisions are disturbing regardless of where you fall on the abortion divide.

In January of that year, Chris Smith introduced HR 3, the No Taxpayer Funding For Abortion Act. The purpose of this bill was to prevent any federal funds from paying for abortion or going towards the purchase of insurance plans that covered abortion services, (including the health insurance of federal employees). The concept dates back to the 1976 Hyde Amendment, which operates in a similar fashion.

Since 1993, the Hyde Amendment has made exceptions for instances of rape, incest, or danger to the mother. It was clear that Smith was intimately familiar with the Hyde Amendment, (he references it often in speeches), and that he supported Hyde, as it was renewed every year through the appropriations process, earning Smith’s approving vote.

It is also clear that when proposing HR 3 in 2011, Hyde was at the front of Smith’s mind. A contemporaneous press release still displayed on Smith’s website reads:

“Smith introduced bipartisan legislation that codified the Hyde Amendment and other similar policies by permanently applying a ban on taxpayer funding of abortion across all federal programs.”

But Chris Smith made a crucial change in HR 3. While Hyde made an exception for rape, Smith’s bill only exempted “forcible rape.”

“Forcible rape” is a loaded term that was sure to invite controversy. It’s hard to imagine that none of HR 3’s 173 original cosponsors noticed or suggested sticking with Hyde’s original language. Nonetheless, Smith deliberately chose to use “forcible rape.”

“Forcible rape” as a legal standard has been used exactly as it sounds by lawmakers and states for decades, implying that the only “real,” “legitimate,” or “honest” rapes are when the survivor physically resists to a sufficient degree and suffers physical injury. Often appearing as “earnest resistance” laws, some states required “clear signs of injury to a nonsexual part of the body of the survivor, such as a black eye, bruises or abrasions,” in order to charge someone with rape. Otherwise, according defenders of the phrase, there was no way to determine if a woman was assaulted or wanted the sexual encounter. “Forcible rape” has been employed to deny rights to survivors who were drugged or mentally impaired, and to restrict abortion rights by utilizing the farcical notion that pregnancies cannot result from “forcible,” and therefore “real,” rapes. Additionally, requiring survivors to prove the “forcible” nature of their assault placed unnecessary legal burdens upon them, and meant that many rapes went unreported.
The horror of this is obvious.

As rape laws evolved, a credible threat of force became acceptable to prove rape “forcible.” This lowers the burden of proof on survivors, but still maintains that their lack of consent, or stated objections, were not enough. A lack of consent, insufficient or non-specific physical injuries, and no way to prove a threat of force beyond fear, (as in, my assailant could probably seriously hurt me), might not be enough to charge rape. Not every assailant states or implies that they have a weapon, nor gives a list of potential repercussions.

The phrase “forcible rape” did exist in the FBI’s Universal Criminal Reporting database since the 1920’s, and several state penal codes. (Because of its controversial nature, the FBI and many states have since dropped the term.)

The UCR is only for gathering statistics. The specific crime suspects are charged with in rape cases, (varying degrees like murder charges, statutory, aggravated, etc.), is left to the states. Therefore, using the UCR as justification for differentiating between “forcible” and “non-forcible” neglects the realities of how “forcible rape” was applied in criminal cases. As HR 3 did not define the term, it would be up to the courts to decide who was a survivor of “forcible rape” and who was not. In doing so, the courts would have turned to the decades of precedent from states in how this term was applied. Therefore, the reality of “forcible rape” under HR 3 would have been based on the sordid history above, making its true definition its past application.
Still, Smith might try to claim ignorance, circumvent the repulsive history of “forcible rape,” and point to the UCR as the benign source of the phrase. Paul Ryan made a similar claim, calling it “stock language” employed by various states and politicians. However, if we pretend it was possible to ignore the baggage of “forcible rape” and embrace the “stock language”/UCR argument, Smith still ends up on morally questionable ground.

Critically, even under the FBI’s UCR definition, statutory rape was not included as “forcible.”
The very stock language that Smith would use as a shield means Smith is ignoring statutory rape and age of consent laws. HR 3 was about restricting access to abortions. By denying a statutory rape survivor an abortion, Smith is forcing her carry the pregnancy as a “consequence” of the rape. In our society, we only hold people accountable to consequences when they are responsible for the actions that engendered them. By making this young survivor bear the consequence through her pregnancy, Smith is saying she is responsible for the statutory rape. That she either didn’t physically resist enough, and/or by her actions, gave her consent.

Minors below the age of consent cannot give consent to adults. Under any circumstances.
Chris Smith tried to codify into law the idea that a young girl, whom society has deemed not yet responsible enough to drive, vote, purchase alcohol or tobacco, and possibly even hold a part-time job, is now old enough to deal with and responsponsible for the consequences of statutory rape. Is required and responsible enough to birth and potentially raise a child, because the incident may not have been physically “forcible” and she therefore bears legal culpability in initiating the rape itself.

It does not matter whether this young girl agreed to the encounter, what she believed about her relationship with the man, whether she physically resisted, whether the man was charged with a crime, or anything else.

Minors below the age of consent cannot give consent.

In the most clinical terms, one could view being a rape survivor as a legal status. Under the Smith-approved Hyde Amendment, this status comes with a legal right to federal funding for an abortion if necessary. Smith’s HR 3 would have removed that right for statutory rape survivors. If Smith would still grant this right to other rape survivors, he must not consider statutory rape survivors legitimate.

The simplest explanation, that HR 3’s inclusion of “forcible rape” was an oversight, is not likely. The phrase is dubious and the exclusion of statutory rape in the FBI’s definition is clear. Even if one extends Smith the maximum benefit of the doubt - that “forcible rape” had an established place in our legal system because of its existence in the FBI’s UCR, and only ended up in HR 3 due to that precedent - the logic that flows from Smith’s decision is disturbing. Smith still ends up punishing statutory rape survivors. And by holding them responsible for the outcome and by extension the initiation of what the law clearly labels statutory rape, and by removing rights granted to other rape survivors, he is implying that they were capable of and gave their consent. That despite statutory rape and age of consent laws, this young girl consented and is not a survivor.

Minors below the age of consent cannot give consent.

Furthermore, Smith’s actions after the fact don’t reflect someone repenting for a serious mistake. After the backlash, Smith dropped the term “forcible” from the law, releasing a single statement through a spokesperson that read:
“The word forcible will be replaced with the original language from the Hyde Amendment.”
He later told the Washington Post that the term had been “misconstrued.”
Those two utterances are the only things Smith’s office, or Smith himself, has ever said about the issue. (And once again, it shows Hyde was always the model, so why make the change? And how can something, which by definition excluded statutory rape, be misconstrued?)

If I was accused of trying to redefine rape - by dragging the reprehensible history of “forcible rape” out into federal law, delegitimizing survivors of statutory rape, and nullifying age of consent laws as they affected survivor’s rights through the classification of the assault - and this wasn’t my intention, I’d be shouting it from the rooftops. I’d get in front of every camera I could and explain how it was an accident, how I had supported the language of Hyde for decades, and of course this was not what I meant at all.

Smith did not. One sentence through a spokesman. One word to a newspaper.
We must also consider the alternative, that Smith’s choice of “forcible rape” had a clear intent. Since 1993, abortion opponents have feared that the rape exception in Hyde would, in the words of Douglas Johnson, National Right To Life Committee legislative director, “fund the abortion of tens of thousands of healthy babies of healthy moms, based solely on the age of their mothers.” Johnson explains:
“We do not believe that the Hyde Amendment has ever been construed to permit federal funding of abortion based merely on the youth of the mother (“statutory rape”), nor are we aware of evidence that federal funding of abortion in such cases has ever been the practice. It is true that the new bills would not allow general federal funding of abortion on all under-age pregnant girls — but this is no change in policy.”

While Johnson conveniently notes that the NRLC is not concerned with statutory rape, he fails to mention that statutory rape is not based solely on “the youth of the mother.” The issue of course, is the age difference between the mother and the father - in this case - the statutory rapist. Further, as the Hyde Amendment didn’t explicitly exclude statutory rape, this would in fact be a change. After all, if, as Douglas claims, federal funding has never paid for statutory rape survivor’s abortions, why change the wording in HR 3? And if there had been an increase in federally funded abortions by “tens of thousands” since Hyde’s rape exception in 1993, wouldn’t the NRLC have been screaming about that?

Additionally, Richard Doerflinger, representing the US Council of Catholic Bishops, said in congressional testimony that the language of “forcible rape” was “an effort on the part of the sponsors to prevent the opening of a very broad loophole for federally funded abortions for any teenager.”

These groups, and the anti-abortion movement in general, are woven into the fabric of Chris Smith’s career. They are some of his largest donors. He speaks for them, with them, and they share a common motivator. They are openly admitting that they are not concerned with statutory rape or the age of consent. They are trying to deceive as to the definition of statutory rape, mislead about how Hyde has been operating, and it is highly unlikely that Smith was unawares of or in disagreement with their mission.

So what were they trying to do? Statutory rape laws vary by state, but in some states, two minors engaging in “consensual,” (as in mutually agreed upon but not consensual in the eyes of the law), sex may technically still be guilty of statutory rape. The resulting pregnancies may be the instances Smith and his anti-abortion associates are targeting.

I wholeheartedly disagree with restricting any female’s reproductive rights, and that these same actors would seek to deny a comprehensive sex education and birth control access to minors should be noted. While I firmly believe Smith and company are in the wrong, there is at least intellectual consistency in the argument that two minors, on equal footing, engaging in mutually agreed upon activity, share responsibility for said activity. That the consequences thereafter fall solely on the female via pregnancy seems not to concern Smith.

However, the potential criminality of two consenting minors is irrelevant. If we theoretically grant both minors the ability to give legal consent and view Smith’s position through the narrow prism of “pregnancy as a consequence of sex,” he still treats minors like adults. Through HR 3, Smith would deny abortions to minors and force the pregnancy to be carried to term. As a staunch anti-abortionist, this is the same consequence he would place upon adults. We don’t hold juveniles and adults to the same standard of punishment, or consequence, for crimes. But even with questions of consent removed, Smith is holding them to the same level of responsibility in terms of intercourse and pregnancy.

And of course, obtaining an abortion through federal funding and utilizing the statutory rape “loophole” Smith and the NRLC are so worried about, requires the female to report the incident and it be charged as a statutory rape. It is unclear whether cases involving two willing minors even end up in the statutory rape statistics, and prosecutors rarely charge anyone. Some states have adopted laws carving out exceptions for this scenario.

But focusing on these types of cases misses the point. After all, age of consent and statutory rape laws do not exist because of two consenting minors, and such cases cannot be used as an excuse for Smith’s language change to “forcible rape” in HR 3.

Statutory rape statistics show that for females ages 14 and 15, about 40% of male offenders are 21 or older, with about half of those being 25 or older. Female survivors aged 7-13 have male offenders 18 and over 48% of the time, and 21 or older 38% of the time. (It is likely that many of the perpetrators for the 7-13 age range are charged with a more specific crime dealing with children. As we are dealing with pregnancy, some females in this range may be affected, some not. But if a justice system filled with anti-abortionists ruled her rape as statutory and “non-forcible,” a pregnant 12 or 13-year-old survivor would be in the same boat as older survivors.)
So in targeting those two “irresponsible” teenagers who may have conceived a child, Smith sweeps up a vast swath of cases where the female survivor is 15 or younger and the male perpetrator is 21 or above. Half of those will be 25 or above.

Once again, as Smith believes these young girls should be required to carry the pregnancy, he is saying that they must bear the consequences of the incident. And if they are responsible for the consequences, they are responsible for the “crime,” as that is how our society works. Therefore, Smith believes that they gave their consent in a “non-forcible” incident, despite statutory rape and age of consent laws. He is ok with, and apparently doesn’t consider as rape survivors, the approximately 20% of cases where a 14 or 15-year-old bears the child of someone 25 or older. The unknown number of cases where a 12 or 13-year-old bears the child of someone 21 or older.
This is not about teenage girls and their older boyfriends. Consider the imbalance of power, the manipulation, and the physical and emotional abuse that can occur in the age ranges above. Consent cannot be given in such circumstances, and Smith’s HR 3 would have amplified the power of the rapist over their survivor.

These are the ramifications of HR 3, and Smith must answer for them. He hasn’t said anything after the precious little he said in 2011. The history and application of the term “forcible rape” was unmistakable. So too was the FBI’s exclusion of statutory rape in the UCR’s “forcible rape” definition. Donors and organizations that share Smith’s mission had been pushing for the changes in HR 3 for years. There were no accidents here. The voters deserve to know if Smith believes that women should have to prove a rape forcible, if statutory rape survivors are “real” survivors deserving the same rights as others, and if age of consent laws matter.

Smith hasn’t held a town hall in over twenty-seven years, so no one has been able to ask him. Hopefully he will show up to debate his opponent and he can explain. At minimum, he could release a statement.

I’m not equipped with the reach of a professional journalist. Media outlets need to start asking Smith about HR 3. It is shocking that the story has been allowed to rest as is for seven years. I can’t find any further comment from Smith, nor any way around the implications of HR 3’s “forcible rape” language. But I’m just an ordinary voter.

Update: in 2018, Smith was asked a very detailed and pointed question about HR 3 during the APP editorial board debate with Josh Welle. Smith gave the exact dodge predicted above which does not withstand scrutiny. He was not pressed on the issue.