Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
By Danielle Mitchell
Concern surrounding obstetric violence has gathered increasing attention within public discourse in recent years, yet avenues for redress remain limited [1]. This article will focus on the problem of unauthorised vaginal examinations. The NICE guidelines recommend numerous vaginal examinations throughout the labour process [2], with the aim of ‘assessing progress of labour to improve outcomes for women and babies at term’ [3]. However, it is vital to ensure informed consent is obtained before performing any such examination [4]. Despite this, many women have reported undergoing vaginal examinations without their consent [5]. Research conducted by Roth et al. found that more that half of birth workers surveyed had witnessed a healthcare provider perform procedures explicitly against the will of the woman concerned, and two-thirds had witnessed providers performing procedures without informed consent [6]. Such violations constitute an invasion into women’s bodily autonomy, privacy and human dignity.
The current legal response to this form of obstetric violence is the crime of battery [7]. Battery is the application of unlawful force, but it need not cause harm. Medical interventions performed in the absence of consent constitute battery. This is based on the fundamental principle that ‘every person’s body is inviolate’ [8], and recognises an individual’s right to control over their own body. Hence vaginal examinations performed without consent clearly fall within this definition.
However, it is argued that battery constitutes an inadequate response to unauthorised vaginal examinations. Three main reasons will be expanded upon to justify this claim. Firstly, battery disguises the systemic problem of obstetric violence, instead shifting the blame to individual actors. Secondly, the crime lacks expressive effect in the context of childbirth. Finally, battery fails to demonstrate the extent of the harm caused through such unwanted actions.
Battery fails to confront the problem of obstetric violence
By labelling unauthorised vaginal examinations as battery, they may be viewed as isolated incidents by individual healthcare providers. However, this fails to represent the complexity and deep-rootedness of the problem; it is not a rogue act of an individual, rather a systematic issue that implicates healthcare professionals and healthcare institutions as a whole.
Viewing unauthorised vaginal examinations from an obstetric violence perspective demonstrates the true extent of the problem. There are entrenched issues which come to light in the form of unwanted vaginal examinations. This includes the persistent appropriation of women’s bodies in medical settings, particularly during pregnancy and childbirth, in which it is assumed that women are incapable of making their own decisions regarding their treatment, resulting in the loss of autonomy. The enduring practice of ignoring the wishes of women in favour of what is felt to be in the best interests of the foetus, stems from broader gender inequality. The implication being that women are lesser and therefore their autonomy is less valued. This inequality is experienced particularly severely in the medicalised context of labour, during which the power imbalance is prominent and creates a toxic environment which enables the violation of women. Thus, it is evident that an unauthorised vaginal examination is more than an isolated incident at the hands of an individual provider; rather it is the result of internalized sexism within the medical profession. Consequently, labelling such violations as battery is not only incorrect, but is also adding to the harm caused by perpetuating the false notion that obstetric violence is not an institutional problem.
Battery lacks applicability on a practical level
Stemming from this is the problem that battery becomes inapplicable in practice. Laws must have expressive effect in order for uptake to occur, meaning that they must convey expectations in a way which shapes our behaviour; for example through imposing sanctions for non compliance as a deterrent against non-compliance [9]. Although technically applicable, due to the context in which these violations take place, the actual application of battery is limited. In the maternity care context, there seems to be a common perception that battery is not applicable owing to the paternalistic view that medical practitioners know best [10]. Since they are acting in what they believe are the best interests of the woman, their actions are not seen as capable of contravening criminal law, despite going directly against the woman’s autonomous wishes. Consequently, the law fails to have expressive effect in this context, and these violations continue to occur. Adding to this is the tendency to defer to medical authority; those with the power to enforce the law against unauthorised vaginal examinations, as well as other forms of obstetric violence, are often unwilling to question the authority of medical practitioners [11]. This is compounded in the labour context when coupled with pervasive views on the incapability of pregnant women. Therefore, the practitioners performing such violations are essentially placed outside the reach of the law.
Battery is not representative of the level of harm caused
Finally, it is argued that classifying unauthorised vaginal examinations as battery does not comply with the principle of fair labelling. The principle of fair labeling requires that descriptions of offences are consistent with the wrong done, thus different offences are needed to represent different levels of harm and culpability. Battery constitutes unwanted touch, however this fails to convey the seriousness of unwanted touch during vaginal examinations in a medical context. It is a much more intimate experience and cannot be equated to the ‘slight touching’ required of battery [12]. The experiences of women demonstrate that battery does not describe what they have endured; neither does it capture the seriousness of the violations, nor the impacts it has on victims. Women have described the experience as ‘like being the victim of a violent crime or rape’ [13] and ‘as more sexually traumatising than childhood abuse’ [14]. These accounts clearly evidence the inability of battery to properly convey women’s subjective experiences.
Brennan has expanded upon the importance of accurately labelling obstetric violence. A separate offence is needed in order to draw attention to the pervasive issue, as well as to enable the specific harms experienced by women to be identified, and to ensure that women’s experiences are not minimised [15]. It has also been argued that fair labelling is important for the victim; ‘if the offence in question gives too anaemic a conception of what that might be, it is fair neither to the defendant, nor to the victim’ [16]. A more accurate label may help women to better comprehend the violation that has occurred and enable them to gain closure from a prosecution. The law has a central role in shaping understandings of obstetric violence: ‘legal language does more than express thoughts. It reinforces certain world views and understandings of events’ [17]. Thus, in order to begin to combat obstetric violence, specific offences condemning such violations are required.
Conclusion
Obstetric violence is a pervasive problem that must be addressed. One way in which to achieve this would be to accord more accurate labels to the specific crimes. As regards to unauthorised vaginal examinations, it has been demonstrated that the crime of battery is insufficient. Battery is an inaccurate label which fails to convey the severity of the crime. It disguises the large-scale problem of obstetric violence, instead framing violations as individual incidences rather than as part of a pattern. Additionally, on a practical level prosecution is often not pursued due to the perception that these violations are routine and therefore not capable of constituting a criminal offence. Therefore, in order for women to regain control over their own bodies in the maternity care context, legal recognition of obstetric violence is vital.
Image: https://www.nytimes.com/2020/04/17/parenting/pregnancy/ob-gyn-sexual-assault.html
[1] Diaz-Tello F, ‘Invisible Wounds: Obstetric Violence in the United States’ (2016) 24 Reproductive Health Matters 56, 56
[2] National Institute for Health and Care Excellence, ‘Intrapartum Care for Healthy Women and Babies’ (Clinical Guideline [CG190], 03 December 2014) <https://www.nice.org.uk/guidance/cg190/chapter/Recommendations#ongoing-assessment> accessed 27 May 2021
[3] Downe S et al, ‘Routine Vaginal Examinations for Assessing Progress of Labour to Improve Outcomes for Women and Babies at Term’ (2013) 7 Cochrane Database of Systematic Reviews, 1
[4] NICE (n2), para 1.4.5.
[5] See Beck C, ‘A Secondary Analysis of Mistreatment of Women during Childbirth in Health Care Facilities’ (2018) 47 Journal of Obstetric, Gynecologic & Neonatal Nursing 94
[6] Roth L et al, ‘A Report on the Cross-National Survey of Doulas, Childbirth Educators and Labor and Delivery Nurses in the United States and Canada’ (1 May 2014) < https://maternitysurvey.files.wordpress.com/2014/07/mss-report-5-1-14-final.pdf> accessed 27 May 2021
[7] Criminal Justice Act 1988, s39
[8] Collins v Wilcock [1984] 1 WLR 1172, p333 (Goff LJ)
[9] McAdams R, Expressive Powers of the Law: Theories and Limits (Harvard University Press, 2017)
[10] Pickles C, ‘When 'Battery' is not Enough: Exposing the Gaps in Unauthorised Vaginal Examinations During Labour as a Crime of Battery’ in Pickles C and Herring J (eds) Women’s Birthing Bodies and the Law: Unauthorised Intimate Examinations, Power and Vulnerability (Hart 2020)
[11] See S.M.F. v Spain CEDAW/C/75/D/138/2018
[12] Collins (n8)
[13] Beck C, ‘Birth Trauma: In the Eye of the Beholder’ (2004) 53 Nursing Research 28
[14] Reed R et al, ‘Women’s Descriptions of Childbirth Trauma Relating to Care Provider Actions and Interactions’ (2017) 17 BMC Pregnancy Childbirth 1, 7
[15] Brennan K, ‘Reflections on Criminalising Obstetric Violence: A Feminist Perspective’ in C Pickles and J Herring (eds), Childbirth, Vulnerability and Law: Exploring Issues of Violence and Control (2019) 226
[16] Horder J, ‘Rethinking Non-Fatal Offences Against the Person’ (1994) 14 OJLS 335, 351
[17] Finely L, ‘Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning’ (1989) 64 Notre Dame Law Review 886, 888
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