Analysis Law and Policy

Learn Your Rights: Touching a Pregnant Person’s Stomach Is Illegal, and Has Been for Some Time

Bridgette Dunlap

Numerous media outlets are reporting that Pennsylvania has banned the touching of a pregnant person’s belly without permission with a “new” or “renewed” or “expanded” law. However, it is already illegal to touch a person without consent in every state, pregnant or not.

Numerous media outlets are reporting that Pennsylvania has banned the touching of a pregnant person’s belly without permission with a “new” or “renewed” or “expanded” law. However, it is already illegal to touch a person without consent in every state, pregnant or not. That this isn’t common knowledge is a big problem with far-reaching implications for women.

The reported facts of the Pennsylvania story are that a man went to his pregnant neighbor’s house, where he hugged her and touched her stomach after she told him not to, and she pushed him away. Police cited the man under Pennsylvania’s harassment law, which has long been on the books. That he was charged under that law suggests his touching was an ongoing problem, though media outlets have implied he was charged for a single well-intentioned pat on the baby bump. Even if that had been the case, everyone should know that even a one-time non-consensual belly rub is unlawful—it’s a tort.

A tort is breech of civil law for which the injured party can sue. (In a criminal case, the state is the party; the victim is only a witness.) A person who intentionally makes a “harmful or offensive contact with the person of another” commits the tort of “battery.” The “tortfeasor” does not need to cause a physical injury, just an offensive touching. This is because “every individual’s person is sacred and no other has the right to touch it.”

This is a fundamental legal principle most of the public isn’t aware of.

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A WCBS reporter who interviewed New Yorkers about the Pennsylvania story informed viewers that “there’s not much you can do about a stranger touching your belly in New York.” This is wrong, and dangerously so. Aside from the fact that New York has a harassment law that includes language identical to that in Pennsylvania’s law, this illustrates a common misconception that being touched without permission may suck, but there isn’t anything to be done about it.

A lawsuit may not be the best response to every well-meaning stomach touch, but a woman should know she does not need to tolerate such behavior. She can say, “Don’t do that again—it’s against the law.” In the case of the one-off belly rub, it might not be a slam-dunk battery case, depending on the jurisdiction; in some jurisdictions, the tortfeasor only needs to intend to make the contact, while in others the tortfeasor also needs to intend that the contact be offensive, so the groper could argue he or she didn’t know it was offensive. But anyone who has been told “Don’t touch me” once is on notice. And if we all treat non-consensual touching as something that is not OK anywhere, rather than an oddity of Pennsylvania law, no one will be able to claim they didn’t know their touching could cause offense.

The stories of pregnant women who were repeatedly touched by the same person are especially disconcerting. One Gothamist commenter wrote, “I worked with a guy who insisted on coming up and rubbing my belly even though I kept telling him he was harassing me and it was pissing me off.” He kept doing this until she hit him, she says.

The law is supposed to minimize the need to resort to self-help. No one should feel she must physically defend herself from unwanted touching on a daily basis. Tell the groper he is breaking the law. If that doesn’t stop, tell your boss, a lawyer, or the police.

The law should deter people from wrongdoing, but it doesn’t when no one knows what the law is. The fact that so few people know an offensive touching is a tort means perpetrators aren’t deterred and victims won’t seek recourse.

Offensive touching is also a crime in most jurisdictions. Some states’ definitions of battery mirror the tort in not requiring physical injury. In others, battery requires an injury, but there are other offenses that do not. For example, in New York criminal battery requires an injury, but “forcible touching” does not.

Everyone needs to get the gist of what a common law battery is. A perennial, and seemingly trivial, example of how nobody does is that of a pie in the face of a public figure. Protesters attempt to hit some controversial figure, typically a conservative, in the face with a pie, and media commentators treat it as harmless silliness. When the pie-thrower is charged, he is shocked. Media reports may mention he was charged with assault or battery but fail to define the crime (or mention it’s a tort). Never is there any explanation of the fact that “unlawfully touching” a person, including by a substance put in motion (the pie), is a crime in the jurisdiction, as is making a person fear an unlawful touching (that’s typically called an “assault”).

I once saw a feminist organization one would expect to be particularly sensitive to the non-consensual touching of women celebrate the 35th anniversary of anti-gay activist Anita Bryant being hit in the face with a pie by posting an artist’s rendering in a pop-art style of Bryant’s cream-covered face on its Facebook page. A student who threw a pie at Ann Coulter indicated his lack of understanding of his actions by telling a reporter, “When throwing a pie can be called assault and bombing civilians called collateral damage, you gotta laugh to stay sane.” No one should be surprised that touching or throwing things at people is illegal. It is a failing of our legal profession, educational system, and media that so few people know they have the right not to be touched and the obligation not to infringe the bodily autonomy of others.

Pie-throwing and belly-rubbing are useful examples because it is understandable that a non-lawyer might not know that these actions can be a tort and a crime. Much more detrimental and difficult to understand is the rash of recent examples of young people witnessing, recording, and distributing video of the touching or penetration of incapacitated women who failed to comprehend they were witnessing, or committing, a crime and a tort.

A witness in the Steubenville case explained he did not try to stop the rape he was witness to because “at the time, no one really saw it as being forceful.” Another tweeted, “if they’re getting ‘raped’ and don’t resist then to me it’s not rape.” The prosecutor explained that testifying witnesses “don’t think that what they’ve seen is a rape in the classic sense.” These statements and the inaction of the kids who were there indicate ignorance of the fact that you can commit a crime and a tort irrespective of whether there is penetration of a particular kind or at all, the amount of force, or the type of injury. Rape isn’t defined by popular opinion, it’s defined by statute. Even without a statute, it is a common law battery.

Additionally frightening is the Steubenville prosecutor’s speculation that only one in a thousand teens would realize taking a video of a naked minor is illegal. If our society provided young people with a basic understanding of the law that governs their lives, they would assume this was illegal, regardless of whether the criminal laws of their state have caught up with cyberbullying, because sending around naked pictures of someone is almost certainly the tort of intentional infliction of emotional distress, among others. And victims who knew the law was on their side might seek help.

That there have been so many cases of young people committing and distributing pictures of sexual batteries is obviously a much deeper problem than ignorance of the law. However, ignorance deprives the law of its deterrent effect and deprives victims of remedies and support. We can say that everyone knows these things are wrong, but prosecutors are dealing with boys “who seem to think they are committing pranks with phones and passed out girls.”

This kind of confusion would not be possible if the average American knew that touching a pregnant woman without consent is illegal, because touching anyone without consent generally is. Where morality and empathy have failed, we can at least be clear about the law, even if it is unevenly enforced. You have the right not to be touched without permission, whether you are pregnant, or on the subway, or at a party. Under no circumstances is your body public property.

Commentary Abortion

How Having an Abortion in Texas Strengthened My Fight for Reproductive Rights

Emily Rooke-Ley

When I decided to come to Austin for a summer internship with NARAL Pro-Choice Texas, I knew I was signing up for an interesting few months. What I didn't know is that at 20 years old, entirely alone in a new city, I would have an abortion myself.

When I decided to come to Austin for a summer internship with NARAL Pro-Choice Texas, I knew I was signing up for an interesting few months. Although I had been working in the field of reproductive rights throughout high school and college, I was raised in Oregon—the only state in our nation that has yet to pass abortion restrictions in the 40 years since Roe v. Wade. And I attend college in New York, a state where there are no abortion restrictions prior to the 24th week of pregnancy. Before June, I had never been to Texas, let alone to the South.

I had read about the shaky state of reproductive rights in Texas, but I did not anticipate that I would be fighting tooth and nail with anti-choice legislators attempting to hastily and unfairly pass some of the most extreme and draconian abortion bills in the country during a special session, with the two-thirds rule conveniently suspended. I did not anticipate having to beg privileged legislators through my public testimony not to violate my privacy in their attempts to “help” me by doing what they think is best for me. (These legislators ultimately cut off my microphone and walked out on my testimony mid-sentence.)

And at 20 years old, entirely alone in a new city, I certainly did not anticipate having an abortion myself.

I found out I was pregnant on the first day of my internship. Contrary to common rhetoric, my choice to terminate my pregnancy was not the most difficult decision I have ever made, although don’t mistake this for carelessness. I had thought through this scenario before and was sure of my choice before I ever needed to be. Nevertheless, the process of having an abortion was, indeed, quite difficult—Texas law made sure of that. I knew Texas’ abortion restrictions: a 24-hour waiting period, a medically unnecessary sonogram, and a slew of propagandized literature lacking medical evidence. With the follow-up exam, that’s three visits to the clinic. These were all things I would have avoided in Oregon or New York, but doable for me, only because I had some money and my family’s support.

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As I entered the clinic parking lot, I was greeted by a few protesters—all white, male, with Bibles in hand—attempting to shame and scare me in a moment when I most valued my privacy. I recall sitting in the NARAL office on the day before my procedure—the day after I’d sat through hours of heated public testimony on SB 5—when our office received a call from the very clinic where I had my appointment, alerting us to the aggressive presence of anti-choice protesters and the desperate need for clinic escorts. I had to excuse myself and went into the parking lot, where I sat behind a car and cried. I was terrified. I had previously thought about what it would be like to have an abortion, and I knew that, for me, it would be difficult. But, naturally, I had expected it would happen in Oregon or New York and, thus, be difficult because of whatever personal reasons, not because I would have to run the gauntlet of aggressive protesters.

Lying on the reclining chair in the clinic office as the sonographer prepared me for my ultrasound, cold jelly on my belly, I felt tears silently running down my face. I kept thinking to myself, I am the victim of a political game. My body is the victim of a political game. There was absolutely no medical reason for this ultrasound. It was lawful intimidation. I chuckled through tears when the doctor told me, as per Texas law, that an abortion could increase my risk of breast cancer and/or infertility. I knew this was anti-choice politics at play—but what about the other scared young women who came in and didn’t know this? What a terrifying thing to hear. I couldn’t imagine that fear being added to the already difficult situation. As the sonographer rubbed the transducer over my slimy belly, I prayed that she would see the image; if she did not, Texas law would require that I be penetrated, against my will, with a transvaginal ultrasound—which is also medically unnecessary. I was horrified at this prospect, but committed nonetheless to terminating this pregnancy no matter what. Thanks to the excellent care of my doctor and the clinic staff, I was able to do so safely.

Indeed, it has been difficult for me to put into words how violated I felt, trying to process this very personal and emotional event, while simultaneously distracted by the privileged anti-choice legislators on the house and senate floors preaching about a topic they so clearly knew very little about. Each time a legislator began his or her spiel on the need to “improve the standard of care,” I so desperately wanted to scream, “It is fine! I am fine! If it was not fine, we would be asking you to do this!” But I knew nothing I said would matter, because, of course, SB 5 and HB 2 were not at all about improving standards of care. It felt so completely wrong to see state Sen. Glenn Hegar (R-Katy) sit in his big comfy leather chair on the senate floor, feet up, texting (!), passing judgment on the very process I was going through. He is a lucky man to never have to be put in that position; he is a cruel man for violating me. Yes, it was offensive to the core, and never have I taken politics quite so personally.

Yet, while I was deeply anguished by the legislative intrusion into what was for me the most private of matters, I felt understood and supported. For every anti-choice man who stuck his cross in my face, for every woman who waved a sign reading “I regret my abortion,” and for every parent who told a child that we are murderers, there were ten more of us publicly sharing our most private stories with the hope that maybe, just maybe, an anti-choice legislator would understand.

Never have I seen, even in my very progressive home state, such an incredible outpouring of genuine activism from men and women, young and old. Texas, I am in awe. Texas is where Roe began. It’s the home of Congresswoman Barbara Jordan, Gov. Ann Richards, famed author and commentator Molly Ivins, lawyer Sarah Weddington who prevailed in Roe v. Wade, and Planned Parenthood President and CEO Cecile Richards. Texas has spirit and pride and a history of activism; it only makes sense that pro-choice Texans would develop an unparalleled Texas-size movement.

Just as the people of the pro-choice movement kept my spirits alive, the pro-choice legislators who so strategically and intelligently maneuvered these bills and the rules of the house and senate inspired me like I have never been before. During the first reading of SB 5, as state Sen. Wendy Davis (D-Fort Worth) questioned Sen. Hegar with incredible vigor and fortitude, I wrote in my journal, “Hearing the senate debate is encouraging. The ‘cross-examinations’ by our pro-choice legislators of the bill’s author (who is left stuttering and speechless time and time again) gives me a real sense of hope.” I went home that night and, for the first time, thought about attending law school.

Never have I been more committed in the fight for reproductive rights or more certain that this will be my life’s work. Thank you, Rick Perry! Oregon Gov. John Kitzhaber couldn’t do it, nor could New York Gov. Andrew Cuomo. As Sarah Slamen so eloquently observed, you, Gov. Perry, have succeeded in energizing thousands of men and women against anti-choice legislation, not only in your state, but across our nation.

Commentary Abortion

Kansas to Pregnant Women: “A Little Lie from Your Doctor Won’t Hurt You”

ACLU

Buried in a sweeping anti-abortion bill is a provision that would immunize a doctor who discovers that a baby will be born with a devastating condition and deliberately withholds that information from his patient. That's right.

Written by Jennifer Dalven, cross-posted from the ACLU with permission.

It’s what every pregnant woman I know dreads. Going into that big ultrasound, having the ultrasound tech, who had been so chatty, suddenly go silent. Having her do sweep after sweep across your belly without saying another word, until finally, she gets up and solemnly says, “I am going to get the doctor.”

As far as pregnancy nightmares go, I thought that was one of the worst. But now politicians in Kansas are giving pregnant women and their partners something new to worry about. Buried in a sweeping anti-abortion bill is a provision that would immunize a doctor who discovers that a baby will be born with a devastating condition and deliberately withholds that information from his patient. That’s right. If the bill passes, a doctor who opposes abortion could decide to lie about the results of your blood tests, your ultrasound, your cvs or your amnio. Lie to you so that you won’t have information that might lead you to decide to end your pregnancy or that might lead you to learn more about your child’s condition so that you are prepared to be the best parent you can be to your child.

Now, I have been working for a long time defending the right of a pregnant woman to make the best decision for herself and her family, whether that is continuing the pregnancy, adoption, or abortion, based on full, accurate information. I thought I had seen just about every manner of government intrusion into those fundamentally personal and private decisions. I thought I was past the point of being shocked and outraged. But as a mother who has been through those ultrasounds myself, the thought that my doctor could choose to withhold this information from me and take this decision away from me and my husband … well, let’s just say it really touched a nerve.

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And, unfortunately, it’s not just Kansas. Other states motivated by anti-abortion zeal are jumping on the it’s-ok-for-doctors-to lie-to-their-patients-to-prevent-them-from-having-an-abortion bandwagon. Oklahoma recently passed a similar law. And, the Arizona legislature is considering a similar bill.

But I guess I shouldn’t be surprised. Despite the rhetoric of anti-abortion politicians about how all these restrictions are necessary to ensure that women’s decisions are well-informed, it’s never been about that. Doctors who provide abortions already work hard to ensure that every woman has the information she needs to make the best decision for herself and her family. What these bills are about is politicians who think they know better than women and who are trying to impose their own views on abortion on a woman and her family regardless of the circumstances: That’s what’s behind those now infamous ultrasound bills in places like Virginia, Idaho, and Pennsylvania. That’s what’s behind the bills in Georgia and Arizona that would ban abortion at the point when a woman often learns about a devastating diagnosis. And that is what is behind so many of the other bills working their way through the state legislatures right now. The Kansas bill is, in a way, just more upfront about it.

Well, enough is enough. We may not all agree about abortion, but we can all agree that these decisions ought to be made by a woman and her family, not a politician. So, whether you are a man or a woman; whether you are already a parent or think you might become one in the future; whether you are blissfully pregnant or unhappily so, if you care about your right to make your own decisions, I ask that you help get the word out. Share this blog on Facebook and Twitter. Send an email with this link to the President of the Kansas Senate. Tell the politicians all over the country to stop interfering in a family’s personal and private decisions.