NONCONSENSUAL INSEMINATION: BATTERY

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1 78 NONCONSENSUAL INSEMINATION: BATTERY Carmen M. * I. INTRODUCTION When a man ejaculates inside of another person without that person s consent, that act constitutes a criminal battery. 1 If the other person, male or female, 2 does not consent to the contact with semen, then the ejaculation is offensive and against the person s will. 3 Nonconsensual 4 * This subject and the themes in this paper are being researched in conjunction with my Ph.D. Dissertation in Criminal Justice with a Specialization in Behavioral Science, under Dr. Lenore Walker, Dissertation Committee Chairperson at Nova Southeastern University. 1 Liberta v. Walter, 839 F.2d 77, 83 (2d Cir. 1988). 2 Nonconsensual insemination can occur in male-male or malefemale sexual conduct. The battery is the same. This paper discusses unwanted pregnancy as one of nonconsensual insemination s serious consequences, therefore the paper is written using male-female pronouns. Other unique consequences result from nonconsensual insemination in male-male sexual conduct and these consequences are not discussed here, but should be discussed in the future. 3 See generally Taylor Irene Dudley, Conceiving Injury - An Analysis of People v. Cross, 30 Whittier L. Rev. 645 (2009).

2 79 insemination can be offensive for two reasons: first, the victim s feelings of violation experienced during and after the nonconsensual ejaculation, and second, the violative and/or terrifying presence of semen inside of a person s body against that person s will. 5 Ejaculation has consequences. 6 Because nonconsensual insemination may impose on the victim an unwanted pregnancy, 7 the government has an important interest in preventing nonconsensual insemination. 8 Nonconsensual insemination also harms people through the 4 Contra Tom W. Bell, Graduated Consent in Contract and Tort Law: Toward A Theory of Justification, 61 Case W. Res. L. Rev. 17, 26 (2010). Nonconsent arises when a party neither agrees nor disagrees to some condition, whether because consent has no role to play at all or because it has been willfully suspended. Unconsensual transactions include assaults and trespasses. Id. at See generally Carmen M., Consensual Insemination, An Analysis of Social Deviance within Gender, Family, or the Home (Etudes 6), 2 J. L. & Soc. Deviance 158 (2011). 6 Id. 7 Liberta, 839 F.2d at Navedo v Preisser, 630 F.2d 636, 637 (8th Cir. 1980). (explaining important governmental objectives-namely, protecting young females from unwanted pregnancy and emotional trauma.... ).

3 80 nonconsensual transmission of disease. 9 In most states, the nonconsensual sexual transmission of disease is specifically prohibited by state statute. 10 When insemination does not cause or transmit a disease, this act can still lead to serious bodily harm through pregnancy. 11 Pregnancy, childbirth, and abortion are commonly known to have serious and permanent effects. 12 Inflicting serious bodily harm, such as pregnancy, on an unwilling person is illegal. 13 In fact, punishing rapists who impregnate their victims is not a new facet of the law. 14 Defending a woman s right to have unprotected sex without blaming her if she is victimized by nonconsensual insemination, however, is a relatively new idea. Because ejaculation carries 9 Carmen M., Nonconsensual Seminal Transmission, Crim. L. Bull. (forthcoming 2013). A person can provide informed consent for the sexual transmission of a disease. Id. 10 Id. 11 See generally Taylor Irene Dudley, Conceiving Injury - An Analysis of People v. Cross, 30 Whittier L. Rev. 645 (2009). 12 See infra Section III. 13 See generally Taylor Irene Dudley, Conceiving Injury - An Analysis of People v. Cross, 30 Whittier L. Rev. 645 (2009). 14 See generally id.

4 81 serious consequences and ejaculation is an independent and separate act from intercourse, the law requires a person expressly consent to ejaculation. 15 Otherwise, the man has committed a criminal battery. 16 Section II of this article provides working definitions of criminal, aggravated, and sexual battery. Section III discusses generally some ways that pregnancy damages the female body and explains briefly why both childbirth and abortion 15 Rhythm method demonstrates that coitus and insemination are severable. See Carmen M., Consensual Insemination: An Analysis of Social Deviance within Gender, Family, or the Home (Etudes 6), 2 J. L. & Soc. Deviance 158, 170 n.42 (2011). In the context of rape and sexual battery, expressed consent is often termed Affirmative Consent. Under this standard, a presumption of nonconsent creates an affirmative duty to obtain consent...in each sexual encounter. Kathleen F. Cairney, Addressing Acquaintance Rape: The New Direction of the Rape Law Reform Movement, 69 St. John's L. Rev. 291, 310 (1995). Expressed consent may also be termed informed consent, which is often the case in the context of sexual transmission of disease. Carmen M., Nonconsensual Seminal Transmission, Crim. L. Bull. (forthcoming 2013). See also generally Tom W. Bell, Graduated Consent in Contract and Tort Law: Toward A Theory of Justification, 61 Case W. Res. L. Rev. 17, 26 (2010). 16 See, e.g., Michal Buchhandler-Raphael, Sexual Abuse of Power, 21 U. Fla. J.L. & Pub. Pol'y 77, 107 (2010). See also Dan Subotnik, "Hands Off": Sex, Feminism, Affirmative Consent, and the Law of Foreplay, 16 S. Cal. Rev. L. & Soc. Just. 249, 312 n.394 (2007).

5 82 cause bodily harm when resulting from reproductive coercion. Section IV discusses the possible levels of general intent scienter for battery. 17 Section V analyzes why expressed consent must be required prior to insemination. Section VI explains how insemination can be distinguished from ejaculation/unprotected sex and Section VII discusses victim-blaming. These sections address why nonconsensual insemination is not the woman s fault. Section VIII applies Sections II through VIII synergistically to the overreaching theme of this paper, that nonconsensual insemination is a battery. Further, Section IX advocates for therapeutic justice, rather than incarceration, to deal with nonviolent, nonconsensual insemination. Finally, Section X concludes that reproductive coercion is illegal as a general intent crime, and society cannot blame a victim for her unwanted pregnancy caused by unwanted insemination. 17 See infra Section IV.

6 83 II. BATTERY Simple battery, felony battery, and sexual battery 18 apply to the problem of nonconsensual insemination. 19 The federal and each state government vary slightly in their specific definitions or jargon of these crimes, such as using sexual assault, sexual battery, rape, and other terms interchangeably. 20 For simplicity, this article will use a single state s definition, Florida s statute See infra Section IV. Nonconsensual insemination could amount to aggravated sexual battery, but these three lesser offenses will be easier to prosecute. See, e.g., R. v. Hutchinson, 2010 CanLII (Can. N.S.C.A.). Thank you to Professor Lucinda Vandervort for bringing this case to my attention. 19 Fla Stat (1)(a)(1)-(2) (2001); (1)(a)-(b) (2007); (1)(a)(1)-(2) & (b) (2012). 20 Aaron S. Peeks, The Sexual Experiences of Heterosexual College Males: Examining Components of Sexual Aggression (2006) (unpublished Ph.D. dissertation, University of Nebraska Lincoln) (on file with author) (1)(a)(1)-(2) (2001); (1)(a)-(b) (2012); (1)(a)(1-2)(b) (2012).

7 84 This article s analysis applies to nearly any state statute to arrive at the same outcome. 22 Traditionally, criminal law states that [a] battery is the intentional, unlawful touching or striking of the person of another by the aggressor himself or by a substance put in motion by him. 23 Furthermore, Florida offers a very tight definition of misdemeanor/ simple battery. 24 Under Florida statute, battery occurs if a person [a]ctually and intentionally touches or strikes another person against the will of the other; or [i]ntentionally causes bodily harm to another person. 25 Additionally, in Florida, [a] person commits aggravated battery who, in committing battery: [i]ntentionally or knowingly causes great bodily harm, permanent disability, or permanent 22 Aaron S. Peeks, The Sexual Experiences of Heterosexual College Males: Examining Components of Sexual Aggression (2006) (unpublished Ph.D. dissertation, University of Nebraska Lincoln) (on file with author). 23 Joseph G. Cook, Criminal Law in Tennessee in A Critical Survey, 38 Tenn. L. Rev. 182, 185 n.13 (1971)(citation omitted) (1)(a)(1)-(2) (2001). 25 Id.

8 85 disfigurement; or [u]ses a deadly weapon. A person commits aggravated battery if the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant. 26 Florida s definition of felony battery is a little broader. 27 Florida statutes classify sexual battery as oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose. These batteries constitute general intent crimes; 28 the degree of injury caused by the (1)(a)-(b) (2007) (1)(a)(1)-(2) & (b) (2012). 28 Fla. Stat. Ann (LEXIS 2002) ( Because the violations took place at the same time where defendant held the victim down while kissing her and subsequently ejaculating on her, and constituted a single act, rather than multiple acts within a single episode, and there was no indication that defendant had time to pause, reflect, and form a new criminal intent between the occurrences, defendant's conviction for sexual battery on a person 12 years of age or older and lewd or lascivious conduct, violated double jeopardy. Danestan v. State, 939 So.2d 1132 (Fla. Dist. Ct. App. 2006). Trial court properly refused to grant a defendant's request for a voluntary

9 86 criminal battery is irrelevant. 29 A criminal battery exists for any intentional touching that violates a person s will not to be touched. 30 Throwing an object at a person, even in jest, constitutes a criminal battery if it is against the victim s will. 31 Relatedly, throwing an object at a person is analogous to discharging an object at a person. 32 intoxication instruction in a prosecution for attempted sexual battery in violation of Fla. Stat (1)(h); sexual battery was a general intent crime, and the voluntary intoxication instruction was only applicable to specific intent crimes. Holland v. State, 773 So.2d 1065 (Fla. 2000), cert. denied, 534 U.S. 834 (2001)). 29 Under Fla. Stat (1)(a), the degree of injury caused by an intentional touching is not relevant and any intentional touching of another person against such person's will is technically a criminal battery. Clark v. State, 746 So.2d 1237, 1239 (Fla. Dist. Ct. App. 1999) (internal citations omitted). 30 Id. 31 Fla. Stat. Ann (LEXIS 2001) (where a [j]uvenile committed a criminal battery when he intentionally touched the victim by throwing a forkful of ravioli at him, then putting him in a headlock [and] the appellate court rejected the juvenile's contention that Fla. Stat was not intended to proscribe or punish harmless child's play that did not cause injury, noting that any intentional touching of another person against his will constitutes a criminal battery, regardless of the degree of injury involved (citing D.C. v. State, 436 So.2d 203, 206 (Fla. Dist. Ct. App. 1983))). Even touching a closely held item constitutes a battery. Fla. Stat. Ann (LEXIS 2001) (where [t]he intentional touching of person's closely held purse against her will constitutes a battery under Fla. Stat (1)(a) (citing Nash v. State, 766 So.2d 310, 310 (Fla. Dist. Ct. App. 2000))). 32 Here, person would only mean the woman, not any viable fetus that is living within the mother, though may also be intimately connected

10 87 For example, directing excretory or secretory matter at prison guards has been prohibited specifically in some states. 33 Passing gas on another person can to the victim s person. See id. (where the [d]efendant was improperly convicted of aggravated battery on an unborn fetus pursuant to Fla. Stat after she shot a pregnant mother in the lower abdomen and struck the head of the fetus in her womb because a battery required a touching of a person and an unborn fetus was not a "person" within the meaning of Fla. Stat and Fla. Stat (citing Love v. State, 450 So.2d 1191, 1193 (Fla. Dist. Ct. App. 1984))). See also id. (finding that [u]nder Fla. Stat (1)(a), there need not be an actual touching of the victim's person in order for a battery to occur, but only a touching of something intimately connected with the victim's body [and t]hus, the word person means person or anything intimately connected with the person (citing Clark v. State, 746 So.2d 1237 (Fla. Dist. Ct. App. 1999))). See id. (where the [d]efendant's conviction for aggravated battery was affirmed where the count, which alleged that defendant, with a knife as a deadly weapon, did knowingly and intentionally touch or strike the victim against his will by stabbing the money bag the victim was clutching to his chest, encompassed the particular words of Fla. Stat (1)(a) that an aggravated battery involve an actual touch or strike of another person [and] the appellate court found that the word person in (1)(a) meant person or anything intimately connected with the person so that when defendant stabbed the money bag, which the victim held to his chest to protect himself, the act constituted an aggravated battery (citing Malczewski v. State, 444 So. 2d 1096 (Fla. Dist. Ct. App. 1984). 33 See, e.g., Cal. Penal Code (2012). See also Fla. Stat. Ann (LEXIS 2001) (where the [d]efendant was improperly convicted of aggravated battery on an unborn fetus pursuant to Fla. Stat after she shot a pregnant mother in the lower abdomen and struck the head of the fetus in her womb because a battery required a touching of a person and an unborn fetus was not a "person" within the meaning of Fla. Stat and Fla. Stat (citing Love v. State, 450 So. 2d 1191 (Fla. Dist. Ct. App. 1984))).

11 88 constitute a battery if the act is intentional and the contact, i.e. the odor, is offensive. 34 Sexual assault constitutes a single battery unless new intent is formed between each act. 35 If 34 See Charge Dropped Against Man Accused of Farting, MSNBC, Sep. 26, 2008, available at In that case, a man was charged with battery for passing gas on a police officer. The charges were dropped because the man warned police that he needed to use the restroom. Since he was in custody, he could not use the restroom, but could no longer hold in the gas. Therefore, the fart was not intentional. This incident is distinguishable from the case at bar because men who cannot hold-in the ejaculation are not in custody and can withdraw their penises. However, that case is also useful because it demonstrates that no physical evidence was necessary to make the arrest, or possibly sustain a conviction. 35 See Fla. Stat. Ann (LEXIS 2001) (holding that the [t]rial court did not err in denying defendant's motion for a judgment of acquittal for three of the four sexual battery counts against him based on his assertion that the offenses arose from a single criminal episode because the victim testified to four acts of sexual battery that were distinct and temporally separated (the victim described being forced to perform oral sex, followed by vaginal sex, followed by another act of oral sex, and, finally, anal sex) because there was time between each penetration to reflect and form a new criminal intent, four convictions were appropriate (citing Carlyle v. State, 945 So.2d 540 (Fla. Dist. Ct. App. 2006))). See id. ( [w]here defendant was convicted of sexual battery and simple battery as a lesser included offense of false imprisonment, as there was no testimony that he touched the victim against her will except for the touching that occurred during the sexual battery, his dual convictions for these charges were barred by the Double Jeopardy Clause, Fla. Const. art. I, 9 (citing Herrera v. State, 879 So. 2d 38 (Fla. Dist. Ct. App.

12 89 the sexual assault embodies one continuous act, then the offensive contact created by separate sex acts might not constitute separate crimes. 36 The battery need not be violent, but merely must be unwanted contact. 37 Unwanted and wanted contact can be segregated within a single instance of intimacy. 38 Whether a particular act of contact violated the victim s will and was nonconsensual is a question for the jury. 39 In these cases, the state 2004))). See also generally Danestan v. State, 939 So.2d 1132 (Fla. Dist. Ct. App. 2006). 36 See id. (citing Herrera v. State, 879 So.2d 38 (Fla. Dist. Ct. App. 2004)). 37 See id. (holding that the Florida offense of simple battery, as defined by Fla. Stat and , did not invariably constitute a crime of violence for purposes of U.S. Sentencing Guidelines Manual 2K2.1(a)(2), 4B1.1, and 4B1.2, because, under the state statute, a defendant's underlying conduct could have involved mere unwanted touching (citing United States v. Joseph, 371 Fed. Appx. 70 (11th Cir. 2010)). 38 See Fla. Stat. Ann (LEXIS 2012) (where the [t]rial court properly refused to give a simple battery instruction as a lesserincluded offense of lewd and lascivious behavior under Fla. Stat (4) [and] the 13-year-old victim's age did not preclude her from consenting to engaging in sex with defendant and thus, the nonconsensual touching required for simple battery did not exist and giving the simple battery instruction as a lesser-included offense instruction would have been improper (citing Khianthalat v. State, 935 So.2d 583 (Fla. Dist. Ct. App. 2006))). 39 See id. (holding that the defendant's conviction for sexual battery of a person over the age of 11 years (now 12 years) by use of physical force not likely to cause serious personal injury under Fla.

13 90 carries the burden of proving an absence of consent. 40 Though the state may prove an absence of consent by showing the man used force, the state also may prove that contact was nonconsensual in other ways. 41 Consent means intelligent, knowing, and voluntary assent, though this meaning does not include coerced submission. 42 Consent shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to Stat (5) was affirmed on the ground that there was sufficient evidence to sustain the finding that the victim had not consented to the sexual act (citing Hufham v. State, 400 So. 2d 133 (Fla. Dist. Ct. App. 1981))). See id. (holding that [w]hether the defendant's covering the mouth of the victim, their having struggled, and the defendant's having shaken the victim proved the lack of consent satisfied the degree of force required under Fla. Stat , was essentially a question for the jury, as was the issue of the defendant's and victim's credibility (citing Hufham v. State, 400 So. 2d 133 (Fla. Dist. Ct. App. 1981))). 40 See id. (where [t]o constitute sexual battery under Fla. Stat (3), (4), or (5), the State must prove the victim did not consent. (citing Khianthalat v. State, 935 So.2d 583 (Fla. Dist. Ct. App. 2006))). 41 See id. (holding that [d]espite defendant's claim that the 13-yearold victim consented to have sex with him and was in fact, the aggressor, there was evidence to support the jury's verdict for sexual battery. There was some evidence of consent, including the fact that the victim's clothing was not torn; however, there was evidence that she was shy and would not talk to strangers and that she was menstruating; there was also bruising of her pubic area. (citing Caylor v. State, 78 So. 3d 482 (Fla. 2011))). 42 See Fla Stat (1)(a) (2012).

14 91 the offender. 43 Following the withdrawal of consent, a man may be charged with battery, aggravated battery, and sexual battery, and, additionally, other trespassory crimes such as burglary, depending on when the man formed the intent to nonconsensually inseminate. 44 Further, consent may be given conditionally, such as I consent if x condition occurs. 45 If the offender begins to act under the other party s conditional consent, but the condition does not occur, then the other party did not give or withdrew consent when the condition did not occur. 46 Therefore, while a single charge of sexual battery may include every sex act that results from a continuous criminal 43 Id. 44 Normally, criminals are not permitted to stay on the premises to commit crimes. When a victim becomes aware of the criminal offense, consent to the perpetrator's presence on the property is implicitly withdrawn. See generally Ray v. State, 522 So. 2d 963 (1998). See also Tom W. Bell, Graduated Consent in Contract and Tort Law: Toward A Theory of Justification, 61 Case W. Res. L. Rev. 17, 26 (2010) 45 Pugsley v. Privette, 263 S.E.2d 69 (Va. 1980). 46 Id.

15 92 intention, each act of sex requires new consent that can be conditional or revoked without force. 47 III. PREGNANCY, CHILD BIRTH, AND ABORTION Pregnancy can permanently change a woman. 48 Like any major medical event requiring a lifestyle change and nine months resolution, pregnancy seriously affects a woman. 49 One thing that moms agree on almost unanimously is that even when your weight is back to normal, there s a good chance your body has rearranged itself. Nothing went back to the way it was Some mothers report changes in their foot, rib cage, thigh, and buttock sizes. 51 Following the lactation period, chests are flatter, more saggy and less full than 47 Supra Section II. 48 Lain Chroust Ehmann, The Truth About Getting Your Body Back: CHERISH YOUR BATTLE WOUNDS! Pregnancy and Baby, (last visited May 10, 2012). 49 Id. 50 Id. 51 Id.

16 93 they were before pregnancy. 52 Hormones also cause increased water flow to the skin. 53 The water relaxes collagen cohesion. 54 Collagen cohesion increases the likelihood that skin may tear when stretched and stretch marks may form. 55 Even if hormones are not to blame completely, stretching and tugging, which can result in loss of elasticity still occurs as women gain weight and breasts swell with milk. 56 The majority of mothers sustain stretch marks on their bodies where fat is stored, such as their abdomens, posteriors, breasts, back, thighs, and hips. 57 Stretch marks often cause women emotional and physical discomfort when these marks burn and itch before they become pale and 52 Id. 53 Are Pregnancy Stretch Marks Different?, American Pregnancy (last visited May 10, 2012). 54 Id. 55 Id. 56 Lain Chroust Ehmann, The Truth About Getting Your Body Back: CHERISH YOUR BATTLE WOUNDS! Pregnancy and Baby, (last visited May 10, 2012). 57 Id.

17 94 permanent. 58 This is just some of the damage from stretching that a woman encounters during pregnancy. 59 Episiotomies were once a routine procedure. 60 This incision is optional now, and available when extensive vaginal tearing seems imminent. 61 With or without an episiotomy, vaginal tearing will probably occur. 62 In most cases, the extent of the damages exists as the key question Id. 59 Infra Section III. 60 See Todd Zwillich, Panel Recommends Curb in Episiotomy: Experts Say Procedure Contributes to Incontinence in Women, WebMD, Dec. 12, 2007, available at See also Episiotomy: When it's needed, when it's not Mayo Clinic, (last visited May 10, 2012). 61 See Todd Zwillich, Panel Recommends Curb in Episiotomy: Experts Say Procedure Contributes to Incontinence in Women, WebMD, Dec. 12, 2007, available at See also Episiotomy: When It's Needed, When It's Not, Mayo Clinic, (last visited May 10, 2012). 62 See Episiotomy: When It's Needed, when It's Not, Mayo Clinic, (last visited May 10, 2012). 63 Id.

18 95 Moreover, permanent incontinence often results from episiotomies. 64 This condition also occurs after the woman s organs are shifted to accommodate the growing fetus inside of her body. 65 [Shifting] has to do with the baby sitting on the pelvic floor.... Childbirth can lead to continuing female incontinence due to strain and damage on the pelvic floor muscles that support the bladder. Stresses on the body, like sneezing, coughing, laughing, or lifting heavy objects, can cause urine to leak. 66 Hormone changes can also 64 See Todd Zwillich, Panel Recommends Curb in Episiotomy: Experts Say Procedure Contributes to Incontinence in Women, WebMD, Dec. 12, 2007, available at See also BabyCentre Medical Advisory Board, Urinary Incontinence After Birth, BabyCentre (Aug. 2010), ks. 65 BabyCentre Medical Advisory Board, Urinary Incontinence After Birth, BabyCentre (Aug. 2010), ks. 66 Dennis Thompson Jr., Causes of Female Incontinence (Pat F. Bass III ed. 2011), EverydayHealth, available at (last visited on May 10, 2012).

19 96 cause incontinence. 67 Incontinence can be emotionally painful, while these stresses can be physically painful. 68 Furthermore, most women find childbirth to be an excruciatingly painful experience. But a 2008 report from Childbirth Connection suggests that, for many women, pain is an ongoing problem after birth. The report also suggests that two common labor interventions cesarean surgery and episiotomy are highly associated with ongoing pain. 69 Twenty-two percent of women who underwent cesarean deliveries reported that pain extremely interfered with their days during the first two months following their child s birth. 70 Almost as many women experienced perennial pain following an episiotomy six months later Id. 68 Supra Section III. 69 Amy Romano, Baby It Hurts: Birth Practices and Postpartum Pain, Science & Sensibility, Nov. 6, 2009, 70 Id. 71 Id.

20 97 Cesarean births are also associated with increased pain related to endometriosis. 72 Terminating a pregnancy can be equally painful. The cramping experienced during aspiration or the use of the abortion pill, for example, can be intense and severe. 73 Like childbirth, abortion causes bleeding following the termination. 74 Moreover, due to politics, a woman who chooses to abort may experience severe stigmatization. 75 Internalizing stigmatization leads 72 Id. 73 See Aspiration Abortion, Early Options, (last visited on May 10, 2012); Abortion Pill, Early Options (last visited on May 10, 2012); RU486, Early Options, (last visited on May 10, 2012). 74 See Aspiration Abortion, Early Options, (last visited on May 10, 2012); Abortion Pill, Early Options (last visited on May 10, 2012); RU486, Early Options, (last visited on May 10, 2012). 75 Stigma Shame and Sexuality Series: Gender Across Borders, Stigma, Shame, and Sexuality: A Reflection on Abortion, Reproductive Health Reality Check, Sep. 19, 2011, available at

21 98 to shame. 76 When a woman s shame is coupled with a change in her hormones, these feelings of stigmatization can turn into feelings of depression. 77 Mild to severe depression following an abortion can have a traumatic affect similar to Post Traumatic Stress Disorder. 78 Just as many women experience painless births, many women experience painless or joyful terminations; but there are many women who experience severe social, emotional, psychological, and physical damage. 79 The threat of pregnancy, which leads to birth or miscarriage is damaging. 80 IV. STATE OF MIND If a man purposefully inseminates a woman expressly against her will, then his actions are 76 Id. 77 Id. 78 Susanne Babbel, Somatic Psychology, Psychology Today, Oct. 25, 2010, 79 Id. 80 Supra Section III.

22 99 criminally purposeful and akin to rape. 81 Purposeful, nonconsensual insemination manifests as reproductive coercion in domestic violence cycles or date rape. 82 Nonconsensual insemination constitutes a criminal event regardless of the man s criminal intent. 83 Nonconsensual insemination may occur in sexual activity where the male did not obtain express consent to proceed, but proceeds anyway, similar to date rape. 84 If the man knew that he would inseminate the woman and that he did not have expressed consent, he could deduce logically that he did not know whether the victim would be offended or harmed, then he could be practically certain that a harmful result would occur or that an 81 See generally Meredith J. Duncan, Sex Crimes and Sexual Miscues: The Need for a Clearer Line Between Forcible Rape and Nonconsensual Sex, 42 Wake Forest L. Rev (2007). See also Kenneth W. Simons, Dimensions of Negligence in Criminal and Tort Law, 3 Theoretical Inq. L. 283, 289 (2002). 82 Carmen M., Nonconsensual Seminal Transmission, Crim. L. Bull. (forthcoming 2013). 83 Kenneth W. Simons, Dimensions of Negligence in Criminal and Tort Law, 3 Theoretical Inq. L. 283, 289 (2002). 84 See Patricia J. Falk, Rape By Drugs: A Statutory Overview and Proposals for Reform, 44 Ariz. L. Rev. 131, (2002).

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