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Martinez Removes “Forcible” From Rape Provisions for Childcare Assistance, But Many Questions Remain

Jodi Jacobson

This evening, we received confirmation from the office of Children, Youth, and Families Department of New Mexico that Governor Martinez requested that the word "forcible" be removed from the proposed guidelines for childcare assistance. But many questions about the proposed policies remain.

Earlier today, we reported on proposed changes in the guidelines under which women in New Mexico would have to apply to receive childcare assistance. Included were two critical changes, one requiring a custodial parent to file child support claims against the non-custodial parent under any conditions (a material change from current policy in New Mexico), and the other exempting those who had borne children conceived through incest or “forcible” rape.

New Mexico women’s rights advocates responded rapidly to the proposed changes, complaining to the Martinez administration, alerting media, and holding a press conference this morning.

This evening, we received confirmation from the office of Children, Youth, and Families Department of New Mexico that Governor Martinez requested that the word “forcible” has been removed from the proposed guidelines for childcare assistance.

A statement from CYFD said:

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It’s clear the language was only in the proposed version because of its usage in the same federal regulations and its in existence in federal statute. At least five states use the exact same language in their existing childcare regulations: Oklahoma, West Virginia, Maryland and Maine.

The Governor feels the language is redundant and unnecessary, and she does not support its usage. It has been removed from the proposed regulation changes.

In a phone call, Enrique Knell, spokesman for CYFD, told me that the terms was “provisionally removed.” When I asked what that meant, he said that it was provisional because a public hearing was to be held in Sante Fe on October 1. Knell could not respond immediately to questions about the public comment period, nor the process of developing final guidelines. He promised to get back to me with that information.

The CYFD statement leaves a number of questions. As we noted in our original piece, the Federal Bureau of Investigation made clear in January that it would no longer use the term “forcible” rape, and has been overhauling the entire process of reporting on rape and sexual assault, a fact which strangely seems to have gone unnoticed by the Martinez Administration. Moreover, if the term is “redundant and unnecessary,” why was it the centerpiece of the March proclamation on sexual assault, also noted in our original piece?

Advocates also remain deeply concerned about the proposed guidelines, which still require a parent seeking childcare assistance to first file a child support claim against the other parent. It remains unclear how, if the current language remains, the state will ensure that rape victims are exempted. There also appears to be no provision for situations in which a woman who left an abusive husband or partner would be able to opt-out of the requirement to seek child support. Finally, it also remains unclear how long the processes would take and who would be in charge, thereby suggesting long delays in processing claims for child support assistance, which, in turn, would have dramatic ramifications for women who need childcare to work or study.

News Family

New Mexico Governor Susana Martinez Seeks Proof of “Forcible Rape” in Applications for Childcare Assistance

Jodi Jacobson

Forcible rape is back in the news, this time in New Mexico, where the administration of Governor Susana Martinez is seeking a "forcible rape" test for women seeking childcare assistance, proving you don't have to be male to be a misogynist.

See our update on this story here.

“Forcible rape” is back in the news, this time in New Mexico, where the administration of Governor Susana Martinez is proposing to require a “forcible rape” means-test for women seeking childcare assistance. It appears New Mexico is now officially part of the fundamentalist right-wing effort to redefine rape that would leave many thousands of rape victims vulnerable and ineligible for state support.

A March 2012 proclamation signed by Martinez declared April as New Mexico’s Sexual Assault Awareness Month. Seems like a good thing until you read it. The second paragraph of the one-page document says:

WHEREAS, FIFTEEN PERCENT OF NEW MEXICAN ADULTS HAVE BEEN FORCIBLY RAPED AT LEAST ONCE IN THEIR LIFETIMES….

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The proclamation claims to be concerned about sexual violence and coercion, but, for one thing, fails to even mention sexual abuse of children and teens, two groups for which sexual abuse, rape, and incest are critical problems and often shrouded in the kind of secrecy that enables and perpetuates such abuse. The omission of children and teens is both curious and troubling if for no other reason than that surveys reveal that in 2010, the rate of sexual assault for these children and teens was higher in New Mexico than it was nationally.

Use of the term “forcible rape” is also troubling. It indicates that the Martinez administration is part of a widespread effort by conservative political and religious groups to maintain narrow and outdated definitions of rape that are being replaced in many states, as well as by the Federal Bureau of Investigation, which defines rape as:

“The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” 

As noted by Attorney General Eric Holder:

“The longstanding, narrow definition of forcible rape, first established in 1927, is ‘the carnal knowledge of a female, forcibly and against her will.’ It thus included only forcible male penile penetration of a female vagina and excluded oral and anal penetration; rape of males; penetration of the vagina and anus with an object or body part other than the penis; rape of females by females; and non-forcible rape.”

A broader definition of rape includes date rape, marital rape, and child rape and sexual abuse among other forms of rape that are not recognized under the term “forcible rape;” it recognizes also that a broad range of victims are in need of help and establishes consent, rather than force per se, as the critical determinant of rape.

Why focus on “forcible rape?” The terms “legitimate rape” and “forcible rape” were catapulted into the public political debate recently by Missouri Senate candidate Todd Akin who asserted that, among other things, “legitimate rape” does not lead to pregnancy. It is a (literally) medieval theory adopted by far right fundamentalist religious and political groups and individuals as part of an ongoing effort to eliminate access to safe abortion care, as well as to further marginalize women. Since rape is usually recognized as a “valid” exception for abortion care even by those who self-identify as against abortion, and since, under law, women who are raped may be able to access state or federal funding for safe abortion care, the right is deploying a strategy of undermining and confusing what is and what is not “legitimate” rape to further undermine access to safe abortion. Beyond abortion care, the redefining of rape is part of a broader effort to reinforce patriarchal norms about women’s bodies and their claims on social and economic captial as well as to reinforce profoundly patriarchal views of reproduction and the family.

For example, after the 2010 elections, fundamentalist right-wing politicians in the U.S. House of Representatives sought to pass H.R. 3, the Let Women Die Act, which among other things, would have re-defined rape based on the narrow definition.

It is therefore clear that Martinez’s declaration did not come out of thin air, but is rather part of the broader strategy.

Now, however, the state is taking things a step further. If passed, proposed changes to New Mexico’s childcare assistance regulations would require that women seeking assistance for children conceived from rape will need to *prove* that they were forcibly  violated.

The revisions appear on a state website on page 7 of the proposed new regulations—Proposed revisions to Child Care Assistance Regulations (8.15.2 NMAC)—and would affect poor and low-income women seeking childcare assistance in order to work or attend school or both. New Mexico’s childcare assistance program provides direct payments to approved childcare providers for those children whose parents qualify. The law requires that women seeking childcare assistance prove that they have done everything possible to obtain child support from (in this case) the father of the child or children for whom they are seeking childcare assisance. One exception to the requirement for child support is in the case of rape; the state did not previously—for what are to most people obvious reasons—require women to seek child support from their rapist.

 Proposed revisions to Child Care Assistance Regulations (8.15.2 NMAC)

Now, however, unless a woman who conceived and gave birth to a child as a result of rape can prove that she was “forcibly raped,” she will be denied assistance for childcare needed for work or education.

If adopted, this policy will have numerous implications. It establishes in state law a narrow definition of rape that can and will be applied in other areas of law and policy. It puts a heavy burden on women who have been raped and are now struggling economically to support a child or children to prove the *manner* in which they were raped, requiring that women who have left violent domestic partnerships, who were date-raped, who were impregnated as a result of incest, or through other “non-forcible” but nonetheless equally violent and denigrating means of sexual violation to first re-engage with their abusers to seek child support, putting control of their lives back into the hands of someone by whom they were violated in the most profound sense of the term, or to prove somehow they were victims of “forcible” rape or incest. Many women, for again what are clearly obvious reasons, can not or will not be able to seek or receive child support from their rapists or, due to the dynamics of rape and rape reporting, may not have adequate “proof” that the rape they endured was “forcible enough” to satisify the state, and so will be completely disqualified from childcare assistance. This poilcy will therefore diminish the economic and social prospects of both women and their children who are unable to afford childcare while they attend school or go to work (or both).

Advocates are outraged at the proposed policy change. “When are we going to stop looking for ways to minimize the violence against women? Rape by definition is already an act of power and control,” said K.C. Quirk, Executive Director of Crossroads for Women in Albuquerque, NM.

They are especially troubled that the move comes under the leadership of the nation’s first Latina governor of a state in which there are high rates of both poverty and violence experienced by both Latinas and Native American women. In a statement, Strong Families, a coalition working to advance the rights of women and immigrants, said:

The attempt to qualify differing levels of rape is especially egregious coming from the nation’s first Latina governor, a former tough prosecutor from southern New Mexico, and a prominent speaker at the Republican national convention. Leaders want to emphasize that rape is rape, period.

“Rape is rape, let’s not move backward toward victim blaming… [A]s a single parent who once benefited from state-subsidized child care assistance, I am saddened at the state’s move to decrease access to a much-needed benefit for our women and families,” said Adriann Barboa, Field Director with Strong Families.

A hearing on the proposed policy is set for October 1 in Santa Fe, New Mexico.

Calls prior to publication of this article to numerous government agencies dealing with childcare assistance, and to the state’s Children, Youth, and Families Department, which is directly responsible for overseeing the policy change, went un-returned.