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

Thursday, September 20, 2012

Strong Families New Mexico and Young Women United

This piece was originally posted at RH Reality Check

by 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. 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:


The proclamation claims to be concerned about sexual violence and coercion, but, for one thing, it fails to 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administration may be part of a widespread effort by conservative political and religious groups to maintain narrow and outdated definitions of rape that have been replaced in many states, as well as by the Federal Bureau of Investigation, which defines rape as: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 the broad range of victims in need of help.

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 the 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 identify as anti-choice, and under law women who are raped may be able to access state or federal funding for safe abortion care, undermining and confusing what is and what is not "legitimate" rape is a strategy to further undermine access to safe abortion and to stigmatize women. Beyond abortion care, the redefining 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, despite the evidence-based trend toward recognizing forms of rape and abuse that comport with newer definitions adopted by the FBI, fundamentalist politicians in the U.S. House of Representatives sought to pass at least one bill that 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 or incest will need to *prove* that their rape violation was "forcible."

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 state 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" as per the definition identified as narrow and outmoded by a wealth of evidence, the FBI, and international public health bodies.

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 and to meet a test set up by the state to exclude many women in need of childcare assistance who would otherwise qualify.

It would force 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. 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 may not have adequate "proof" that the rape they endured was "forcible enough" to satisify the state, and so will be disqualified from childcare assistance. In turn, the policy will diminish the economic and social prospects of both the women and their children when they are unable either to afford private childcare to 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 states 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 to numerous government agencies dealing with childcare assistance and to the state's Children, Youth, and Families Department, which is directly responsible for the policy change, went unreturned.