Utah’s trigger law requires rape victims seeking an abortion to report to police. But prosecutors say the law isn’t clear enough.

Physicians can face up to 15 years in prison if they perform an abortion without verifying a rape victim reported to police.

(Francisco Kjolseth | The Salt Lake Tribune) Protesters gather at the Utah Capitol for a “Bans Off Our Beehive” rally in support of abortion rights on Saturday, May 14, 2022.

Utah laws restricting access to abortion offer an exemption to the state’s rape victims, allowing them to legally seek the procedure.

But the law demands that their doctors first “verify” that the sexual assault was reported to law enforcement — forcing victims to go to police, a mandate that advocates say could re-traumatize women and discourage survivors from pursuing an abortion.

The exception for rape victims is part of Utah’s trigger law banning abortion, which took effect last week after the U.S. Supreme Court overturned Roe v. Wade, returning the power to regulate abortions to the states.

Although the trigger law is temporarily on hold, as Planned Parenthood Association of Utah challenges its constitutionality, the same exemption is in the law now in effect — which bans abortions after 18 weeks of pregnancy.

Prosecutors, defense attorneys and victim advocates say the practical details of what is required of victims and doctors are not clear, and the law raises other questions as well.

What does the trigger law require for rape victims?

The law, passed by lawmakers in 2020, bans abortions in Utah except under limited circumstances. This includes when the pregnancy was caused by rape or incest. But before performing an abortion, a physician is required to verify that the rape or incest has been reported to law enforcement. Sexual assault in Utah is common, according to the Rape Recovery Center, but is often unreported.

Davis County Attorney Troy Rawlings said the law is not clear on a doctor’s obligation to ensure a report has been filed with police.

“The Legislature used the term ‘verified.’ The physician is to verify the sexual assault has been reported to law enforcement,” he said. “It leaves open what that verification process is. There’s no definition, no outline of steps.”

Rawlings wonders, would a sworn affidavit from a victim be enough? Does the alleged victim have to go to the police and ask for a copy of the report? Could a physician call a police detective and get verbal confirmation that a report was filed?

“It’s an open question,” Rawlings said. “The statute puts the burden on physicians but it doesn’t tell them how that process works.”

Aundrea Peterson, Utah Senate Deputy Chief of Staff, said this week that the requirement that rape victims report to law enforcement to receive abortion services is not new — it’s first mentioned in a law limiting abortions that was passed in 1991, and again in a law passed in 2009. She said legislators are “unaware of any issues” that were created by imposing the reporting requirements.

Peterson also clarified that the trigger law requires that an alleged victim report a rape to law enforcement, but it does not require that a police investigation or prosecution must occur in order for a victim to get an abortion.

What are the criminal penalties?

Utah women seeking abortions are not the target of criminal penalties in the state’s abortion laws. Rather, it’s the physicians who perform the procedure.

The law states that if a doctor illegally performs an abortion, he or she can be charged with a second-degree felony — which can carry a sentence of up to 15 years in prison, if convicted.

Rawlings said if a case is referred to his office where a physician gave an abortion to a rape victim, he’ll analyze what efforts the doctor took to verify that the woman reported to police.

“There could be multiple ways that a physician could comply with that statute, in my opinion,” he said.

David Ferguson, the executive director of the Utah Association of Criminal Defense Lawyers, said he’s also concerned about the vague reporting requirements for physicians.

“That’s a pretty scary thing for a physician,” he said, “when the law is a little ambiguous as to what they exactly are supposed to be doing.”

Could the reporting requirement affect how rape cases are prosecuted?

Both Rawlings and Salt Lake County District Attorney Sim Gill agree that a defendant would be entitled to have access to evidence showing that an alleged victim reported that she was raped in order to get an abortion.

And that, they worry, could affect the outcome of rape cases.

Gill said he’s concerned the trigger law will retraumatize victims and allow defendants to argue that a woman reported being assaulted just to receive an abortion.

“Now they are going to argue this was really done to get an abortion,” Gill said. “And as a prosecutor, I can’t ignore the realities of how it complicates victims [receiving] a measure of justice.”

Rawlings said he shared the concern that a woman’s decision to get an abortion could complicate prosecutions — but added that won’t deter his lawyers from bringing charges.

“We will still prosecute cases,” he said. “That is not an automatic bar whatsoever. It’s an issue to deal with.”

Defendants are entitled to have that information, Ferguson said, because it could indicate a motive for a false report.

“False reports are rare,” he said. “But we can assume that they would increase if there is a legal incentive to do so. And I think the Legislature has essentially pushed women into this position with this law.”

Why do sexual assault victims not report to police?

Lauren Hunt, who sits on the board of directors of the Rape Recovery Center, believes the requirement that rape victims report a crime to law enforcement will have “harmful effects” on women. She shared her reasoning in an affidavit filed in Planned Parenthood’s lawsuit challenging the trigger law.

“Because this reporting requirement is applied only to survivors who seek abortion, it does not seem targeted at the sexual assault in any way,” she wrote, “but instead to discourage sexual assault survivors from seeking an abortion.”

And there are a number of reasons why survivors don’t report sexual assault, Hunt wrote, including fear of retaliation, fear of not believed or fear of having to face their abuser in the legal system.

Victims may not mentally process initially that what happened was an assault, Hunt wrote, or they may have safety concerns, particularly in domestic violence or intimate partner situations where they are connected to their abuser financially.

One Salt Lake City woman told The Salt Lake Tribune that she was raped three years ago while at college in California. She didn’t report it to police, she said, in part because she was in the same social circle as the person who assaulted her.

“I felt like I was just in survival mode,” she said. “I just was not in that head space. I wanted to shower immediately, even though I knew that would remove all physical evidence. I didn’t want to talk to anyone about what happened and so I didn’t want to report. I wanted to do the best I could to start moving on with my life after that.”

The Tribune generally does not identify alleged victims of sexual assault. The 25-year-old woman said she has never regretted her decision to not inform the police about what she says happened to her.

After she was assaulted, the woman said, she spent the next month in fear that she could be pregnant. She had a plan, she said, of how she could get an abortion — something she did not end up needing.

“I was not ready to have a kid. I had plans to go to graduate school and was accepted,” she said. “And I really can’t think of anything more traumatic than being tied to my assaulter for the rest of my life by having a child with him.”

She said she’s devastated at the thought that women in Utah who are sexually assaulted would not have the option for abortion if they decided, like her, to not report to police.

“What was going through my head the month after [the assault] was that that [option] was my saving grace: If I am pregnant, I have access to abortion and I can do that and that’s my choice,” she said. “And that this is my body and I have control over it. If I didn’t have access to that, I have no idea what would have happened to me. I was already in such a scary mental health space.”

“It’s unthinkable,” she added, “but it’s not unimaginable, because so many women are going to endure that following Utah’s abortion ban.”

How else could the trigger law affect sexual assault victims?

What the trigger law does, Hunt wrote, is create the type of mandatory reporting systems often aimed at protecting children or other vulnerable populations from abuse.

But women seeking abortions, she said, are competent adults. She noted that a rape survivor doesn’t need to disclose an assault to law enforcement in order to get a sexual assault exam at a hospital. Yet, if that same person discovers she is pregnant and wants an abortion, she is forced to involve the police in order to receive medical care.

“Mandatory reporting for competent adult survivors can inflict many seen and unforeseen harms,” she wrote. “Mandatory reporting can endanger survivors, retraumatize them (particularly if their disclosure is met with initial disbelief), infringe upon their autonomy, violate patient confidentiality, create barriers to care, and have effects on any potential future prosecution with which they may decide to move forward.”

She added that while a victim may not want to participate in a criminal case after reporting it to receive an abortion, nothing would stop an officer from pursuing an investigation without her consent or submitting the case for prosecution if there is other evidence beyond her own account.

Hunt also argued that the mandatory reporting law could “exacerbate the harmful myth” that people falsely report crimes.

“This undermines the credibility of every woman who is raped,” she wrote, “and make prosecutions of rapists that much more difficult.”