Friday, 16 May 2008

Birth rape

Interesting, if bad tempered, exchange going on between Dr Crippen and the F Word (and others) over this post there on 'birth rape' and 'medical rape':

"A woman who is raped while giving birth does not experience the assault in a way that fits neatly within the typical definitions we hold true in civilised society. A penis is usually nowhere to be found in the story and the perpetrator may not even possess one. But fingers, hands, suction cups, forceps, needles and scissors… these are the tools of birth rape and they are wielded with as much force and as little consent as if a stranger grabbed a passer-by off the street and tied her up before having his way with her. Women are slapped, told to shut up, stop making noise and a nuisance of themselves, that they deserve this, that they shouldn’t have opened their legs nine months ago if they didn’t want to open them now. They are threatened, intimidated and bullied into submitting to procedures they do not need and interventions they do not want. Some are physically restrained from moving, their legs held open or their stomachs pushed on."
I'm somewhat ambivalent as to where my sympathies lie in this argument. I've seen some callous behaviour in the delivery room (more often from midwives than doctors I have to say). Of course any medical procedure carried out without consent is assault, and a patient can withdraw that consent at any time. On the other hand, when carrying out examinations and procedures which are uncomfortable it is always sensible, when a patient wants you to stop because of discomfort, to engage in at least some discussion with them - this is because people are often just temporarily unhappy about the discomfort and will continue with a little encouragement, avoiding terminating the procedure and requiring the whole experience to be repeated. This applies as much to inserting a cannula as to intimate examinations. I don't think there is any easy answer as to where the line lies, which is why doctors are always walking something of a tightrope between best interest and violation of autonomy.


LemmusLemmus said...


I must admit that when I first read the words "birth rape", I thought, "Not another one of those wacky feminist ideas!" That's probably because I once read a post on a feminist blog calling lads' mags' covers "eye rape" (to which some actual rape victims strongly objected in the comments section).

But if, as a first approximation, you define vaginal rape as "insertion of body parts or objects into a woman's vagina or keeping her from removing them by force or threat thereof", then some of what is described in the links qualifies as rape. If the woman says, "Take your fingers out now!" and the doctor or midwife doesn't, that would be rape.

I guess it gets tricky if in the judgment of the medical personnel this would endanger the health of the child.

Has anyone ever been tried for such behaviour?

LemmusLemmus said...

"insertion of body parts or objects into a woman's vagina

That should have read:

"insertion of body parts or objects into a woman's vagina against her will

pj said...

Doctors have been prosecuted for assualt I believe (that is for physically treating people against their will) which is entirely analogous.

I'm not aware of anyone being tried for rape specifically - although obviously plenty of gynaecologists have been prosecuted for rape of a sexual, rather than a forced medical procedure nature.

I think the grey area comes when you consider how people tend to react to discomfort, with cries of 'ooh, ow, stop, that hurts' which, if we were to immediately stop every procedure at that, would result in great swathes of patients dying. So you need to make sure that the patient really means 'stop' (so this differs very much from sexual rape) in the patient's own interest. As pointed out on Dr Crippen's thread, the UK Department of Health says:

"A patient with capacity is entitled to withdraw consent at any time, including during the performance of a procedure. Where a patient does object during treatment, it is good practice for the practitioner, if at all possible, to stop the procedure, establish the patient’s concerns, and explain the consequences of not completing the procedure. At times an apparent objection may reflect a cry of pain rather than withdrawal of consent, and appropriate reassurance may enable the practitioner to continue with the patient’s consent. If stopping the procedure at that point would genuinely put the life of the patient at risk, the practitioner may be entitled to continue until this risk no longer applies.

Assessing capacity during a procedure may be difficult and, as noted above, factors such as pain, panic and shock may diminish capacity to consent. The practitioner should try to establish whether at that time the patient has capacity to withdraw a previously given consent. If capacity is lacking, it may sometimes be justified to continue in the patient’s best interests(see chapter 2), although this should not be used as an excuse to ignore distress."

If a midwife breaks a woman's waters without consent then that is obviously assault and may legally qualify as rape depending on the exact drafting of rape laws. Some of the other examples discussed are harder to judge because we only have one side and they seem to involve some misunderstanding of medical procedures (which is itself a failure of the clinician to communicate).

LemmusLemmus said...

I have no problem with the Department of Health guidelines except for this:

"If stopping the procedure at that point would genuinely put the life of the patient at risk, the practitioner may be entitled to continue until this risk no longer applies."

That's a pretty deep moral philosophical question. Generally, people are allowed to endanger their lives (drive cars, go skiing, smoke, etc.). I guess the best analogy is saving a person that is trying to commit suicide (which I would do - saving him/her, I mean). I am not saying that the guideline is wrong, I am only saying that it is a tricky issue.

"So you need to make sure that the patient really means 'stop' (so this differs very much from sexual rape) in the patient's own interest."

Arguing that a woman's "no" doesn't always mean "no" in the context of rape is going down one slippery slope, it is.

A possible solution, at least in some cases, for the general problem you outline, might be for the patient to pre-commit to going through with a procedure. Of course, that takes away the possibility to have it stopped if s/he genuinely (whatever that means) wants the procedure stopped.

Mind-boggling stuff.

pj said...

Yes, I know that you need to be careful around the question of consent when talking about rape - but in the case of medical procedures 'no' really does often mean 'ow' (my view on rape in a sexual context is different and I don't think the two situations are comparable - when someone is unconscious and lacking in capacity you could never have sex with that person, but you could consider the need for a vaginal examination for, e.g. ruptured ectopic, in a medical context - which highlights the differences in the situations).

Which is why it is necessary to clarify and reassure rather than terminate the procedure with extreme prejudice! A patient is likely to be unhappy if, in the middle of a procedure, you immediately terminate it at the first hint of discomfort, requiring the whole thing to be repeated again, prolonging the pain. That is the essential paradox of the clinician - the fine line between best interest, negligence and assault. Unfortunately there are no hard and fast rules to follow so you are always striking a balance.

In terms of life threatening procedures - well you could argue that the patient whose brain is open to the elements during a craniotomy is allowed to withdraw consent at any time, and go about their business. But generally speaking courts are going to look pretty unfavourably on doctors who routinely leave their patients with holes in their heads - however consensual that is.

Legally a patient cannot pre-commit themselves to a procedure - they can always withdraw consent - the only case where that applies is when they pre-consent then no longer have capacity - but if they don't have capacity then consent isn't an issue in the same way (normally what happens is that the patient gives prior refusal to consent for a procedure in case they no longer have capacity).