Reproductive Crimes

Golemon, Hayden | June 7, 2023

For centuries, American criminal law has operated with little to no reference to reproductive rights—a person’s right to decide if, when, how, and with whom to reproduce. Criminal law today only recognizes the violation of this right in one circumstance: during the sexual assault of a woman that results in a pregnancy. This lack of sensitivity to reproductive rights yields unjust results between cases of sexual assault as well as in situations where only reproductive (but not sexual) rights are violated, such as withholding birth control after consensual sex. By implementing statutes that justly account for the respective burdens of forced reproduction, states can provide more justice to victims of reproductive coercion and sexual assault. Part I of this Comment provides background on the types, ubiquity, and effects of reproductive autonomy and reproductive coercion in America. Part II examines to what extent the scope of sexual assault laws covers reproductive rights and to what extent reproductive freedoms are absent in criminal law. Part III draws on America’s legal history to explain how the scant reproductive rights present in criminal law came to be as well as their absence elsewhere. Part IV proposes the existence of standalone reproductive crimes and examines their potential application to forms of reproductive coercion, sexual assault, and questions of sexual/reproductive consent that states have struggled to answer.