Without Consent: Vaginal examinations during labour and the law

Report by Rodante van der Waal, MPhil

phil-birth, oxford
Phil-Birth team in Oxford. From left to right: Rodante van der Waal, Sara Cohen Shabot, Elselijn Kingma and Stella Villarmea

On Friday February 8th the workshop organised by Dr Camilla Pickles ‘Without consent: Vaginal Examinations during labour and the law’ took place in Exeter College, University of Oxford. Right in the middle of this old intellectual scenery of Oxford University, there were about 20 female scholars, amongst them lawyers, philosophers and obstetricians, discussing the problem of vaginal examinations without consent during labour on the basis of four compelling testimonies of women from the activist ‘Birthrights’ organisation that fights for women’s rights.

In these testimonies, the problem at hand became instantly clear on an emotional, psychological, juridical, feminist, and cultural philosophical level. The women who experienced the traumatic event of being examined internally against their will had all repeatedly objected to the examination, but were not listened to, ignored — their opinions and wishes were proved to be irrelevant when in the debrief sessions after birth they were asked why they were complaining, for they had ‘a healthy baby, right?’ Some women described the involuntary examinations as rape, others as leaving their bodies deeply traumatised. When they tried to seek justice in the legal system, they were either not taken seriously again, or harmed even further.

These emotional, psychological and feminist cultural perspectives were all addressed by the academics later that day. Dr Sara Cohen Shabot presented in her talk Why normalfeels so bad: Violence and vaginal examinations during labor a phenomenology, a phenomenological epistemological thesis regarding vaginal examinations and the relation to sexual assault. Cohen Shabot argued that, as women, we are continuously structured by the male gaze which upholds a perspective of women’s bodies as sexual, thereby objectifying them. This creates an expectance of women’s sexual availability, disregarding their own wishes, making women ‘push through’ painful or unpleasant sexual experiences. Therefore, women are already used to the crossing of their bodily and boundaries and the (maybe) not explicitly consented penetration of their bodies. The consequence  of this cultural conditioning for vaginal examinations, is that because of the sexual connotation of vaginal examination, it is difficult to recognise them as a violent crossing of bodily integrity. Hence, exactly because of the connotation of rape and sexuality which characterise women’s experiences of vaginal examinations, the violation does not become more clear, on the opposite: in a sexualised misogynistic culture, vaginal examinations remain unrecognised as violence — this is why ‘normal’ feels so bad.

Following this presentation, one of the question raised was whether every vaginal examination can be regarded as a form of violence and whether this would be a desirable statement. Following up on a similar problematic from a juridical perspective, Professor Jonathan Herring argued that, yes, every vaginal examination can be seen as ‘prima facie’ wrong since it clearly crosses bodily boundaries. Consequently, it is the sole responsibility of the health care professional doing the examination to obtain elaborate informed consent, in the form of a rich dialogue. Although it is a routine examination, because of the prima facie wrong that vaginal examinations are, implied consent is in this case never enough. In relation to the question of the inherent violence of vaginal examinations as well, Dr Elsa Montgomery presented the results of her research into sexual abuse and the experience of maternity care. It showed that the one in five women who have a history of sexual abuse mostly do not share this with their midwives or doctors, and that vaginal examinations can trigger re-experience and re-traumatisation. It is important to provide ‘trauma informed care’ and rely completely on the woman’s cue when it comes to the necessity, desirability and practice of vaginal examinations, since healthcare professionals do not know who has a history of sexual abuse and who doesn’t. The combination of Cohen Shabot’s, Herring’s and Montgomery’s hypothesis make a case to, indeed, treat every vaginal examination as a prima facie wrong, or as a form of violence, that remains currently unrecognised. Because of this, ‘sincere’ informed consent is of vital importance in order to provide safe care that does not consciously or unconsciously (re)produce trauma.

Another dimension of the feminist cultural historical perspective was presented by Professor Stella Villarmea in her talk When a uterus enters the door, reason goes out of the window. Villarmea presented a genealogy of modern obstetrics which originated in the midst of a theoretical discussion between academics on the relation between ‘reason’ and the uterus. It was argued that the presence of a uterus must have major influence on the existence of reason, becoming known as the debate of the ‘thinking uterus’. It resulted in an equation between uterus and reason, thereby disregarding women’s reason as non-objective, non-rational, and non-autonomous from the body, refusing them, for centuries, the right to vote. One of the results of this debate about the implications of  uteruses on reason, is infamously known as the disease ‘hysteria’. Originating from this argumentation, obstetrics is a pillar of modern enlightenment patriarchy. Obstetrics then disregarded women as subjects and still does so now, which is testified to by the shocking experiences of women within obstetric care who are not taken seriously, not listened to, and or neglected. Within obstetrics there still is the same ‘old’ dichotomy at work that treats pregnancy and rational subjectivity as mutually exclusive, resulting in labouring women not being taken seriously as subjects.

This fundamental part of the problem of unauthorised vaginal examinations was also the main problematic of the juridical part of the day. In the testimonies of the women, it became clear that next to not being taken seriously during labour, they were also not taken seriously on a juridical level: not by the police, nor by the formal routes of complaint within the hospitals, not in the debriefing sessions, nor in trying to build a case since they do not fulfil the right categories such as ‘assault’, ‘battery’, or ‘rape’. Their notes went missing, and one of the women was forced to comply with all the proposed interventions during labour because she was under the ungrounded threat of losing her baby to child protection services.

Dr Claire Murray gave as an explanation that women are not being taken seriously by the law regrading issues in childbirth, because of the strict dichotomies that are made within the law between being of sound mind or not. In childbirth, because of the history that Villarmea sketched, women’s ‘sanity’ or reasonability is often doubted, exaggerated by the labour-pain they are in, resulting in their wishes and demands being overruled in court. Catarina Sjolin pointed out the difficulty of fitting obstetric violence in a category such as sexual assault. Dr Camilla Pickles followed this up by explaining why neither assault, nor battery are adequate categorisations within the law to make a case of individual’s experiences with obstetric violence, arguing that this is why obstetric violence is not taken seriously in the law, nor adequately represented.

Therefore, Pickles closed the workshop with a plea for taking the term ‘obstetric violence’ up in the law, since it would provide the legal system with a clear category, making it possible to represent the victims of obstetric violence in more effective ways. This is especially important regarding the fact that not taking women seriously and the risk of obstetric violence increases for those who are already unrepresented by legal systems, along the axes of sex, race, and class. A categorisation of obstetric violence as a specific crime would make it, at least, easier for victims to be represented and to build a case within our legal systems, because of the establishment of a clear relation between general human rights and specific litigation.

Concerning obstetric violence and unauthorised vaginal examinations in relation to the law, one of the most important points of the day was that, even though taking up ‘obstetric violence’ as a legal term will maybe not necessarily lead to more convictions — notes can still be missing, doctors can still be judged by their medical protocols’s instead of women’s experiences, and we would still live within a patriarchal system which makes it difficult for women to build a case —, the law is also effective in addressing problems in society and chasing norms and values. As such, the law can be used for persuading the medical profession of its responsibility. This perspective on the law as having moral power since it shapes our norms and values is in line with the global ‘Respectful Maternity Care’ movement which uses specific human rights in their message in order to combat disrespectful maternity care. Although it is thus highly difficult to make a case against obstetric violence based on human rights because of the reasons mentioned above, it does help to point out again and again that disrespectful care is a violation of basic human rights, and in that regard a specific categorisation of obstetric violence as a crime might be powerful.



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