# Hypothetical: Man raped, wife and child stabbed, rapist becomes pregnant, faces death penalty **URL:** \ **Category:** Great Debates\ **Created:** [October 19, 2020, 8:47pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355 "2020-10-19T20:47:47Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 20, 2020, 2:59am UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/21 "2020-10-20T02:59:48Z")
Sure, anybody can sue. It’s possible that the law would require child support in such a case. I still think it’s immoral. I hope we all agree on that… ~Max ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 20, 2020, 3:23am UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/22 "2020-10-20T03:23:31Z")
Great cite. I actually read that one during the build up to writing this topic. But that was concerning parental rights after conception. In the example I crafted for this topic, among other tangible differences, the “child” is still unborn. The custody battle would take place _before_ birth. ~Max ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 20, 2020, 4:03am UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/23 "2020-10-20T04:03:25Z")
**Broomstick** , As far as moral analysis goes, I really appreciate this post. It is excellent. On the issue of the right to abortion vs the right of the father/rape victim, I see abortion as less about privacy and more about personal autonomy. My interpretation on current jurisprudence regarding abortion through privacy (not to be confused with my opinion on proper interpretation of constitutional law) happens to concur with my personal view on the morals of infringing upon personal autonomy - under both approaches, the personal right of the mother is balanced against the interests of the state, not of the father. Pitting the father’s rights directly against the mother’s rights is a losing battle, I think, because before delivery it is the mother who physically provides for the child. We can’t have rapist fathers forcing victim mothers to carry their pregnancies to term just because the father claims a parental right; likewise, we can’t have victim fathers force rapist mothers to carry their pregnancies to term just because he claims a parental right. As a matter of equity, perhaps there is a comparison to be made because of the murder. In a sense Mary took a child away from John & wife, the latter of whom had to go through pregnancy and more to raise their daughter. Nothing can replace that child entirely - time and love once spent can never be reinvested. But in a very superficial, eye for an eye mentality - here is another child that the Does want and have a connection to, that Mary does not want. She almost owes it to them as restitution - provided that no medical situation comes up. But then again, there’s no such thing as 100% safe childbirth, and it has been pointed out to me before that giving birth can result in lifelong physiological changes or ailments. Separately there is the question of the state’s interests. Here the fetus is far too young to be considered viable, so under normal circumstances (_Roe v. Wade_ or _Planned Parenthood v. Casey_) the mother’s rights would prevail - morally speaking, and legally speaking under current jurisprudence. But when the pregnancy is a result of the mother’s own decision to rape a man, and when she is convicted on a theory that she _wanted_ to rape him, and _wanted_ to become pregnant, so that she could abort the resulting pregnancy, I think that changes things. I think that really gives the state a leg up, because the state can say that letting her get an abortion is letting her _get away with it_. When I add these two together, I come to a conclusion that agrees with yours in all points. It’s very interesting to me, the different paths we took to get there. I also envy your conciseness. ~Max ---
**Author:** ![Broomstick](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/broomstick/32/246_2.png) [@Broomstick](https://boards.straightdope.com/u/Broomstick)\ **Post date:** [October 20, 2020, 8:38am UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/24 "2020-10-20T08:38:19Z")
> [@Max\_S](#): > > On the issue of the right to abortion vs the right of the father/rape victim, I see abortion as less about privacy and more about personal autonomy. Because in this case the father is deceased he no longer has any rights. His surviving family does have an interest, but not the dead man himself. > [@Max\_S](#): > > As a matter of equity, perhaps there is a comparison to be made because of the murder. In a sense Mary took a child away from John & wife, the latter of whom had to go through pregnancy and more to raise their daughter. Nothing can replace that child entirely - time and love once spent can never be reinvested. But in a very superficial, eye for an eye mentality - here is another child that the Does want and have a connection to, that Mary does not want. She almost owes it to them as restitution - provided that no medical situation comes up. Nope, I’m sorry - one person does not replace another. You can’t hand a baby over in “restitution”. Hence why I say there needs to be a lawyer for the baby independent of anyone else to look after the best interests of that child as opposed to any other interest. Yes, there is a strong likelihood adoption by the murder/rape victim’s widow will be that choice but I do feel that the entire situation should be examined. > [@Max\_S](#): > > But then again, there’s no such thing as 100% safe childbirth, and it has been pointed out to me before that giving birth can result in lifelong physiological changes or ailments. I’m not going to extend much, if any, sympathy to a woman who committed rape and murder and as a result had “lifelong physiological changes or ailments” as a direct result of her own criminal actions. The phrase “you reap what you sow” comes to mind. Of course, she should receive any medically necessary treatment for those changes/ailments but beyond that I don’t give a damn. > [@Max\_S](#): > > I think that changes things. I think that really gives the state a leg up, because the state can say that letting her get an abortion is letting her _get away with it_ . This - in this _very particular and isolated case_ an abortion would be a continuation of her crime. Yes, we did arrive at the same place through different routes. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [October 20, 2020, 2:05pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/25 "2020-10-20T14:05:01Z")
In terms of the legal questions (not weighing in on practical or moral ones): you can’t file for custody of an unborn child, and the state doesn’t have to “grant” an abortion. The woman has a right to obtain one. ---
**Author:** ![Broomstick](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/broomstick/32/246_2.png) [@Broomstick](https://boards.straightdope.com/u/Broomstick)\ **Post date:** [October 20, 2020, 2:07pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/26 "2020-10-20T14:07:33Z")
This may surprise you, but the rules are a bit different for prisoners. They can’t just waltz down to the local clinic whenever they want. Prisoners get what medical assistance the state provides, and many states are not in the business of aborting fetuses without a compelling medical reason. Prisoners have restricted rights. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [October 20, 2020, 2:10pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/27 "2020-10-20T14:10:33Z")
If you have a legal argument that a prisoner doesn’t have a right to an abortion I would be delighted for you to make it. ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [October 20, 2020, 2:11pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/28 "2020-10-20T14:11:15Z")
> [@Broomstick](#): > > This may surprise you, but the rules are a bit different for prisoners. They can’t just waltz down to the local clinic whenever they want. Sure, but there are things she could do while in prison to make spontaneous miscarriage/abortion likely, assuming they don’t confine her to a cell in a straitjacket. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [October 20, 2020, 3:30pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/29 "2020-10-20T15:30:44Z")
> [@Max\_S](#): > > …The jury rejects the insanity defense, returning a guilty verdict on all five felony counts: burglary, attempted murder, rape, malicious castration… As opposed to benign castration? > [@Little\_Nemo](#): > > > [@Max\_S](#): > > > > I can not fathom a scenario where M. M. gets less than twenty years in prison, or where the state allows the child to live in prison until the age of majority. > > I agree there’s no possibility of the state allowing Moe to raise a child in prison… She might for awhile, at least. > **[Programs Help Incarcerated Moms Bond With Their Babies In Prison](https://www.npr.org/2018/12/06/663516573/programs-help-incarcerated-moms-bond-with-their-babies-in-prison)** > > Nearly a dozen states run programs that allow women serving prison terms to keep their babies with them for a limited time. Supporters say the programs help women inmates turn their lives around. > **[Children of women in prison - Penal Reform International](https://www.penalreform.org/blog/children-of-prisoner-mothers/)** > > This blog explains why chidlren of imprisoned mothers need particular attention, and work carried out by PRI in the South Caucasus to provide assistance and services to, among other things, promote positive emotional relationships between mothers and... > **[Prison nurseries give incarcerated mothers a chance to raise their babies —...](https://www.nbcnews.com/news/us-news/prison-nurseries-give-incarcerated-mothers-chance-raise-their-babies-behind-n894171)** > > Advocates say keeping infants with their mothers, even behind bars, is good for both. Critics say it’s unconstitutional. ---
**Author:** ![Mallard](https://avatars.discourse-cdn.com/v4/letter/m/b9bd4f/32.png) [@Mallard](https://boards.straightdope.com/u/Mallard)\ **Post date:** [October 25, 2020, 3:55pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/30 "2020-10-25T15:55:23Z")
If a man can function sexually given that set of facts you can rest assured he’d be in prison as a co-conspirator. ---
**Author:** ![Broomstick](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/broomstick/32/246_2.png) [@Broomstick](https://boards.straightdope.com/u/Broomstick)\ **Post date:** [October 25, 2020, 4:14pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/31 "2020-10-25T16:14:44Z")
… ah, once again the myth that men can’t be forced to engage in sexual acts rears its ugly head! Men certainly can be raped. I’m sorry if you don’t believe that. Attitudes such as yours just makes it harder on the survivors. ---
**Author:** ![Mallard](https://avatars.discourse-cdn.com/v4/letter/m/b9bd4f/32.png) [@Mallard](https://boards.straightdope.com/u/Mallard)\ **Post date:** [October 25, 2020, 8:50pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/32 "2020-10-25T20:50:05Z")
Sure, anything is possible. Maybe I was on the grassy knoll in 1963 and the oldest person ever lived to 122 and smoked cigarettes for over 100 years. I clearly stated my comment was “given that set of facts”. Had the man been sodomized then the rape is very possible. However that isn’t the point of the OP. Maybe with a near fatal dose of viagra the scenario is possible but I doubt it would convince a jury. At least it would make a fascinating episode of dateline. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 25, 2020, 9:07pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/33 "2020-10-25T21:07:40Z")
> [@Elendil\_s\_Heir](#): > > She might for awhile, at least. I’m aware of prison programs that allow mothers to have a period of time in which they can care for and bond with their newborn babies. But I don’t know of any prisons in this country which allow mothers (or fathers) to raise their children in prison. So if Mary Moe receives a normal sentence for the crimes the OP describes, somebody else is going to be awarded custody of Baby Moe. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 25, 2020, 9:09pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/34 "2020-10-25T21:09:41Z")
> [@Mallard](#): > > I clearly stated my comment was “given that set of facts”. Had the man been sodomized then the rape is very possible. However that isn’t the point of the OP. Maybe with a near fatal dose of viagra the scenario is possible but I doubt it would convince a jury. At least it would make a fascinating episode of dateline. Getting an erection, even if it’s naturally occurring, does not imply consent. ---
**Author:** ![Larry\_Borgia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/larry_borgia/32/156_2.png) [@Larry\_Borgia](https://boards.straightdope.com/u/Larry_Borgia)\ **Post date:** [October 25, 2020, 9:17pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/35 "2020-10-25T21:17:24Z")
Here is a male rape victim’s story. > **[5 Bizarre Realities of Being a Man Who Was Raped by a Woman](https://www.cracked.com/personal-experiences-1666-5-awful-realities-being-man-who-was-raped-by-woman.html)** > > We spoke with a victim of female-on-male rape to find out what it's like to be the victim of a crime that most of society refuses to acknowledge is even a thing. Spoiler Alert: It's awful. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 26, 2020, 3:47pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/36 "2020-10-26T15:47:10Z")
> [@Broomstick](#): > > Because in this case the father is deceased he no longer has any rights. > > His surviving family does have an interest, but not the dead man himself. In the scenario I wrote up, the father (John Doe) survives. ~Max ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 26, 2020, 3:58pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/37 "2020-10-26T15:58:05Z")
I tried to raise one possible legal argument - that the prisoner’s right to abortion can be overcome by a valid “penological interest” - both when I described the jail/state’s position in the OP and also when I cited _Doe v. Arpaio_ in post #13 (emphasis omitted): > [@Max\_S](#): > > On Thursday, September 3 , Ms. Moe’s pregnancy test comes back positive. She immediately asks for an abortion […] > > On Friday, September 4, the jail denies Ms. Moe’s request for an abortion. They note the lack of medical necessity and cite 1) preservation of evidence - prosecution wants a paternity test to help prove their case beyond a reasonable doubt, 2) their opinion that an abortion could constitute additional harm to the victim, and 3) the “penological interests” of deterring similar crimes[…] > [@Max\_S](#): > > Switching over to legal analysis, I think the courts will say, inmates still have the right to abortion unless the prison can supply a valid penological concern. For example, see _Doe v. Arpaio_ , 150 P.3d 1258 (2007). ~Max ---
**Author:** ![HMS\_Irruncible](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hms_irruncible/32/7394_2.png) [@HMS\_Irruncible](https://boards.straightdope.com/u/HMS_Irruncible)\ **Post date:** [October 26, 2020, 4:06pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/38 "2020-10-26T16:06:54Z")
If you’re asking for my moral analysis, the state should not be permitted to force anyone to remain pregnant by denying them an abortion. Likewise no person should have standing to force another person to remain pregnant, no matter how many lurid scenarios we concoct to justify it. Specifically the fact of a castration shouldn’t permit someone to use someone else as a slave reproductive vessel. I don’t believe in the death penalty, so basically any reason should be good enough to let someone live, and pregnancy certainly qualifies. I think John should be permitted to sue for full custody of his child, if (and only if) the mother allows it to be born. Again, there’s no situation where I agree that the state or any other person should force someone else to give birth. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 26, 2020, 4:07pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/39 "2020-10-26T16:07:18Z")
That’s a really good point… if Ms. Moe starts trying to hurt herself that would force the jail to restrain her. Nine months of solitary confinement with physical restraints _while pregnant_… restraining a pregnant woman is usually seen as a violation of human rights… if that isn’t cruel and unusual, I don’t know what is. The question for me is whether that constitutes punishment, and whether it is justified, given these particular circumstances. ~Max ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 26, 2020, 4:12pm UTC](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355/40 "2020-10-26T16:12:14Z")
> [@Elendil\_s\_Heir](#): > > As opposed to benign castration? Malicious castration is the technical term for this kind of crime. The act I wrote into the hypothetical might be described as a crude and involuntary vasectomy - I was thinking she just cut the tubes, not that she cut anything _off_. ~Max [Previous page](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355.md?page=1) [Next page](https://boards.straightdope.com/t/hypothetical-man-raped-wife-and-child-stabbed-rapist-becomes-pregnant-faces-death-penalty/923355.md?page=3)