Nonconsensual Insemination: Seminally Transmitted Diseases as Intimate Partner Violence
Carmen M. Cusack, Nonconsensual Seminal Transmission, Criminal Law Bulletin (2013), Forthcoming
Posted: 9 Mar 2013 Last revised: 28 Mar 2013
Date Written: September 8, 2011
Some men use sex to damage women. These men willfully, i.e., intentionally, knowingly, recklessly, or wantonly, transmit sexually transmitted diseases (STD’s) to their partners as an act of intimate partner violence (IPV). IPV is heavily correlated with patriarchal attitudes that govern both partners, and especially men. Women or gay partners who subscribe to feminine sex/gender roles may be victimized by patriarchal. (This group of women and men will be denoted as “WM” in this article).
Society and the justice system are influenced by two false patriarchal beliefs. The first is that condom use correlates with consensual sex and feminine sexual agency. The second is that unprotected sex indicates that insemination is consensual. Even though some states have criminalized the knowing transmission of specific STD’s and some states have only criminalized the transmission of HIV, the law has failed to deter what psychologists and criminologists have observed for decades, which is that often, men willfully contaminate an intimate partner with a sexually transmitted disease (STD) as an act of intimate partner violence (IPV). Irrespective of whether WM consent to unprotected sex, men who knowingly transmit STD’s to WM through ejaculation (“seminal transmission”) should be held criminally liable unless, 1) their partners specifically consented to being inseminated, and, in addition, 2) the partners assumed the risk of transmission. It is the first prong of this test that is novel with respect to current jurisprudence and social attitudes about condom use, consent, coercion, and the cycles of intimate partner violence.
Using Dr. Lenore Walker’s retelling of the Cassandra myth as an analogy, first, this paper will analyze the systemic context of coercion in which WM become inseminated. In the first section, this paper presents psychological and criminological data to explain how patriarchal perspectives influence and infect society and justice. Next, this paper analyzes current seminal transmission laws, current perspectives on those laws, and how those laws fail to punish patriarchal IPV. Finally, this paper will propose a new law that recognizes nonconsensual insemination and seminal transmission as possible acts of IPV and domestic violence (DV). The proposed law suggests a penalty that empowers the victim.
Keywords: seminally transmitted disease, nonconsensual insemination, intimate partner violence
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