How would TDs legislate for abortion in cases of rape?

The work of the Oireachtas Committee on the Eighth Amendment continues apace ahead of their December deadline to complete their work. It has already voted “not to retain the Eighth Amendment in full” but the final outcome from their work remains far from clear.

Last week TDs heard from NUI Galway Law Lecturer Tom O’Malley who told them that it would be very difficult to legislate for terminations in cases of rape. He advised that such difficulties would be avoided if abortion were made available up to 12 weeks.

However if such a law were to be introduced how would it operate? What would the process be for dealing with such cases? Should there be a process at all?

O’Malley arranges the possibilities along a spectrum :

“At one end of the spectrum is, let us say, a position whereby nothing short of a criminal conviction by a court would suffice to prove that the rape has been committed. At the other end of the spectrum, a simple assertion or claim by the woman in question that she has been raped or subject to another offence could suffice. The former is out, to be quite honest, simply because, given the length of time it takes to process a case through the system, apart altogether from what my two colleagues have said, with which I absolutely agree, that is, that many people do not report cases for quite a long time anyway, it would not even arise. However, even if the woman were to report the case at the very first opportunity, there is no way the criminal case would be concluded within nine months, which is the very maximum period we are talking about.

“At the other end of the spectrum, there is the possibility of simply asking why we do not simply believe what the person says. This is a perfectly legitimate approach as well. I can see many circumstances in which it might not be problematic. In a so-called stranger rape case where the woman has been not just raped but also seriously assaulted in other ways and she goes to the Garda immediately, perhaps to the sexual assault unit, and to a rape crisis centre, no one would seriously question whether she is the victim of a rape. Therefore, I do not see any difficulty in accepting such an assertion backed up by such evidence.

“However, if this were to become an issue at all, the kind of scenario on which the committee would have to concentrate would be one in which, let us say, a woman comes forward, perhaps two or three months, perhaps more, into a pregnancy and claims at that point that she has been raped or is the victim of another offence. Would proof be required at that point and, if so, what kind of proof? Of course, the fact that she might come forward at that point does not mean that she is to be disbelieved. On the contrary, as we know from experience, many people who are the subject of rape or child abuse choose not to report for all the kinds of reasons Ms Blackwell has mentioned. However, if they discover subsequently that they are pregnant, at that point they may come forward and say they have been raped. At that point there may not be any forensic evidence that would be of any use for the purpose of proving the rape has been committed. Therefore, the question would arise of what kind of proof would be required, given that a criminal trial is out.

“Some kind of inquiry or body could be set up, on either an ad hoc or a permanent basis, to assess such claims. Again, questions would arise. Would it be necessary to identify the perpetrator? Would the perpetrator have a right to be heard? Suppose, for example, a woman says she has been raped by her husband or partner. Would he have the right to come forward and say it was not rape and that he objects to the abortion taking place? Would that end up in court? Of course, it would in those circumstances. These are the kinds of issues the committee might need to consider.”

We need only look to the Isle of Man for an example of a law operating specifically to allow for a termination in cases of rape. Abortion is also being debated there as the Manx Parliament considers reform.

Both Labour and Sinn Féin have policies  that state that abortion should be available in cases of rape. Fine Gael and Fianna Fáil are giving their TDs a free vote.

It may be some time before the details of abortion legislation are voted on in the Dáil. However the referendum debate ahead will put a public microscope over parties’ and individual TDs’ positions and the specifics of their policy – beyond the headline position. The case of making a specific law for abortion in cases of rape is indicative of the complexity that can come into play when translating policy into legislation.

Daithi McKay

Daithí McKay is a former MLA that introduced the Assembly’s first carrier bag levy legislation. He was the Chairperson of the Climate Coalition and was involved in both the legislative work and the grassroots campaign to secure the Climate Change Act 2022. Based west of the Bann he is also a member of the Strabane Greenways group.

Twitter : @daithimckay