Utah law requires sexual assault victims to report the crime before seeking a post-viability abortion. Should they have to?

(Francisco Kjolseth | Tribune file photo) Jennifer Dailey-Provost, the Democratic representative elect in State House 24, currently lobbies for family medicine and primary care and is passionate about access to mental health care, addressing the needs of people experiencing homelessness, and the opioid epidemic.

Utah Rep. Jennifer Dailey-Provost was a vocal opponent of this year’s 18-week abortion ban legislation, arguing that tightened restrictions can lead women to risk their lives in dangerous, black-market procedures.

The bill passed with near-unanimous support from the Legislature’s Republican majority, and Dailey-Provost said she holds out little hope that lawmakers would agree to repeal it next session. So instead, she plans to suggest a smaller amendment, aimed at making a difference for women who are the victims of sexual violence.

The state’s new law, which generally bars abortions after 18 weeks, provides a carveout for cases of rape and incest — but only if a physician verifies that the pregnant woman has told police about the sexual assault. Dailey-Provost, a Salt Lake City Democrat, wants to delete that reporting requirement.

“Filing a police report doesn’t make a rape a rape. And for a myriad of reasons, a woman may not have decided to file a police report if she was raped,” Dailey-Provost said.

Mary Taylor, president of Pro-Life Utah, said doing away with the reporting requirement could undermine efforts to bring perpetrators of sexual assault to justice.

“Any time you’re talking about a woman who’s been raped, it’s a very sensitive, very heartbreaking scenario. But my concern really would be that it would protect the rapist,” she said.

Taylor also said, considering the amount of fetal development that has happened by 18 or 20 weeks, she’d hope a woman in that stage of a pregnancy could seek options outside of abortion.

About three quarters of all sexual assaults go unreported, with many victims saying they remain silent for fear of retaliation or because they doubt law enforcement would do anything, according to the Rape, Abuse and Incest National Network. Only five of every 1,000 perpetrators are ever imprisoned for their crimes, the network reports.

That’s not to suggest reporting sexual assault is unimportant, Dailey-Provost said. Only that state laws should give consideration to the complex and difficult decisions faced by victims.

Sexual assault "is a traumatic event, and opening a police report after it happens may not be emotionally or psychologically feasible, especially if a woman is dealing with a pregnancy that proceeds from it,” Dailey-Provost said.

Heather Stringfellow, vice president of public policy for the Planned Parenthood Association in Utah, said reporting a sexual assault can be cumbersome and traumatizing to victims. It often means going through a police interview and physical exam, all the while knowing that many sex crimes are never prosecuted, said Stringfellow, a former sexual crimes detective for the Salt Lake City Police Department.

Stringfellow said women should be taken at their word when they seek an abortion because of rape or incest, and mandating law enforcement involvement adds an unnecessary layer.

“Victims of rape and sexual assault have had control of their bodies taken away from them. And one of the hallmarks of helping victims of rape and incest survive and be able to overcome the trauma is giving them choices, choices about what direction their case goes and choices about their bodies,” she said.

But Utah isn’t the only state that has enacted this type of reporting requirement.

In Georgia, a woman who’s been sexually assaulted must file a police report if she’s to qualify for an exception to the state’s general ban on abortions after a physician can detect a fetal heartbeat, at around six weeks of pregnancy. Neither Utah’s 18-week ban, which is being challenged in court, nor Georgia’s heartbeat law are currently in effect.

Before this year, Utah had generally allowed abortions until a fetus became viable outside the womb, a point often pegged at about 23 or 24 weeks of pregnancy.

Rep. Cheryl Acton led this year’s effort to shorten the timeframe for a legal abortion to 18 weeks. Though the bill succeeded, it has not yet taken effect because of an ongoing lawsuit filed by the American Civil Liberties Union of Utah and the Planned Parenthood Association of Utah, organizations that argue the new law defies decades of legal precedent.

The requirement for a police report predates the new, 18-week law and originally applied if a woman who was sexually assaulted wanted an abortion after the point of viability. Acton, a West Jordan Republican, declined to comment on Dailey-Provost’s idea for eliminating the reporting language, saying she hadn’t given it enough consideration.

Including Utah, nine states have passed early abortion bans this year, in what’s seen as a conservative push to challenge the 1973 Roe v. Wade ruling. Courts in the past have struck down state laws prohibiting pre-viability abortions, and Acton has predicted her legislation will only survive if the U.S. Supreme Court upholds the bill or a similar restrictions in another state. Taylor of Pro-Life Utah said she’s hopeful that this will be the outcome.

“I’m optimistic that it will work its way to the Supreme Court and have a really good chance of ... being heard,” she said.

The abortion rate in Utah has been declining steadily over the past four decades, with fewer than 3,000 procedures happening in the state in 2017, the latest year for which data is available. More than two-thirds of those abortions were performed in the first eight weeks of pregnancy, according to the Utah Department of Health.

Seventy-three were performed after 18 weeks of pregnancy, and health department records show that therapeutic need or fetal malformation are the reasons cited for nearly all abortions after 15 weeks.