Education Not Handcuffs: A Response to Proposals for the Criminalization of Birth Control Sabotage

University of Maryland Law Journal of Race, Religion, Gender and Class Volume 15 | Issue 1 Article 5 Education Not Handcuffs: A Response to Proposals for the Criminalization of Birth Control Sabotage Nickeitta Leung Follow this and additional works at: http://digitalcommons.law.umaryland.edu/rrgc Part of the Family Law Commons Recommended Citation Nickeitta Leung, Education Not Handcuffs: A Response to Proposals for the Criminalization of Birth Control Sabotage, 15 U. Md. L.J. Race Relig. Gender & Class 146 (2015). Available at: http://digitalcommons.law.umaryland.edu/rrgc/vol15/iss1/5 This Notes & Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in University of Maryland Law Journal of Race, Religion, Gender and Class by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact . Leung EDUCATION NOT HANDCUFFS: A RESPONSE TO PROPOSALS FOR THE CRIMINALIZATION OF BIRTH CONTROL SABOTAGE Nickeitta Leung “Just when I thought I broke away and I'm feelin’ happy you try to trap me. Say you pregnant and guess who the daddy. Don't wanna fall for it, but in this case what could I do? So now I'm back to makin’ promises to you, tryin’ to keep it true. What if I'm wrong, a trick to keep me holdin’ on.”1 The tale of the deranged woman who pokes holes in her partner’s condom or tells him that she is on the pill when she is not, in an attempt to get pregnant, is engrained in our society.2 However, recent research in the medical community should dispel any stereotype that the perpetrators of this act, termed “reproductive coercion,” are women.3 Indeed, women – primarily those in abusive relationships – are more likely to have their contraceptive methods sabotaged by their male partners in order to promote pregnancy.4 The high prevalence of reproductive coercion among women who experience intimate partner violence raises the question of whether this “birth control sabotage,” a form of reproductive coercion, © 2015 Nickeitta Leung.  J.D. Candidate 2016, University of Maryland Francis King Carey School of Law; B.A., 2011, Brooklyn College, Macaulay Honors College. The author thanks her family for their continued support and encouragement. She also thanks Professor Leigh Goodmark for her helpful insights on this Comment. Lastly, she thanks the staff of the Journal of Race, Religion, Gender and Class for their assistance in the preparation of this Comment. 1 2 PAC, DO FOR LOVE (Interscope Records 1998) (displaying the idea that women try to trap men by getting pregnant). 2 Rachel Camp, Coercing Pregnancy, 21 WM. & MARY J. WOMEN & L., 275, 289 n.93 (2015) (citing films, songs, and storylines that perpetuate this tale). 3 See generally Elizabeth Miller, et al., Pregnancy Coercion, Intimate Partner Violence and Unintended Pregnancy, 81 CONTRACEPTION 316 (2010); Ann M. Moore et al., Male Reproductive Control of Women Who Have Experienced Intimate Partner Violence in the United States, 70 SOC. SCI. & MED. 1737 (2010). 4 Id. Leung 2015] BIRTH CONTROL SABOTAGE 147 should be criminalized.5 But criminalization is not an appropriate legal response to the prevalence of birth control sabotage.6 This Comment argues that the criminalization of birth control sabotage would be inappropriate because establishing the mental state of a perpetrator of birth control sabotage would be too difficult to enforce.7 Further, analogizing the crime of birth control sabotage to current domestic violence crimes, the criminalization of birth control sabotage would foster the underreporting of birth control sabotage, which would ultimately mask enforcement measures; deter female victims from seeking prenatal care; and perpetuate the mass incarceration of minority men.8 Part I of this Comment discusses the association between reproductive coercion and intimate partner violence and the prevalence of reproductive coercion. Part II identifies the current proposals for the criminalization of birth control sabotage and the rationales behind them. Part III discusses potential ramifications of criminalizing birth control sabotage and reproductive coercion in general. Finally, Part IV proposes alternatives to criminalizing birth control sabotage and reproductive coercion. I. INTIMATE PARTNER VIOLENCE AND REPRODUCTIVE COERCION In a 2010 study, Dr. Elizabeth Miller quantified the association between intimate partner violence and reproductive coercion.9 While “researchers are not clear which comes first – whether reproductive coercion is an early predictor that a relationship will become abusive or whether [reproductive coercion] emerges from an already abusive relationship – the correlation between the two is clear.”10 Miller’s 5 See Leah A. Plunkett, Contraceptive Sabotage, 28 COLUM. J. GENDER & L. 97, 98 (2014) (noting that “[t]he identification of birth control sabotage as a fairly widespread but widely ignored social problem raises critical questions for law as well as for medicine, including whether there should be criminal consequences for saboteurs.”). 6 See infra Part III. 7 Id. 8 Id. 9 See Miller, supra note 3, at 319. 10 Erin Liotta, Detecting Reproductive Coercion: Teen Pregnancy as a Red Flag, 32 J. NAT’L CTR. FOR YOUTH L. (2013), available at Leung 148 U. MD. L.J. RACE, RELIGION, GENDER & CLASS [VOL. 15:1 study found that women who experienced intimate partner violence were more likely to also experience reproductive coercion.11 This part discusses intimate partner violence and the reproductive health outcomes of women who experience intimate partner violence. A discussion of reproductive coercion follows. A. Intimate Partner Violence Defined Intimate partner violence (IPV) is defined as “physical, sexual, and emotional abuse and controlling behaviors by an intimate partner.”12 Physical IPV includes slapping and hitting.13 An example of sexual IPV includes forced sexual intercourse.14 Emotional IPV may include insults, intimidation and threats.15 Controlling behaviors include isolation from family and friends, stalking, and limiting access to money, education, and employment.16 The term “IPV” is used interchangeably with “domestic violence,” “violence against women” or “gender based violence.” Because many victims do not disclose their experiences of abuse due to fear that reporting the abuse may lead to further abuse, the true prevalence of IPV is unknown.17 Nonetheless, it is estimated that 1 in 4 women in the United States experience IPV.18 IPV risk is highest among adolescents and young adults.19 http://www.youthlaw.org/publications/yln/2013/jan_mar_2013/detecting_reproducti ve_coercion_teen_pregnancy_as_a_red_flag/. 11 Miller, supra note 3, at 320 (Reproductive coercion was reported in the absence of physical or sexual partner violence in 7% of a sample of 1278 women, “. . . suggesting women’s experiences of reproductive controlling behaviors by men who do not (...truncated)