Tuesday, March 13, 2012

Legal Satire?: Doonesbury and "Transvaginal" Rape

So often, a subject or an issue may be characterized as "political", "religious", "social" or "economic", yet they are not mutually exclusive. Something that is characterized as political may very well (and often does) have economic, social and indeed legal implications. In a series of cartoons this week, Doonesbury's writer and artist Garry Trudeau satirizes the implications of Texas' sonogram law.

The law mandates that a physician who is to perform an abortion must prior to the abortion perform a sonogram and display the image of the foetus, make audible the heart auscultation of the foetus for the woman to hear and explain the results of each procedure. A 24 hour waiting period must take place between the sonogram and abortion procedure. See Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5th Cir. 2012).

The implications of such a procedure in early first term abortions are that doctors must perform the sonogram vaginally with the use of a ten-inch sonogram "wand".

In one strip, Trudeau depicts a scene where a woman seeking an abortion who does not want to undergo the sonogram procedure is told that it is mandated by law. The content of the strip is described as follows:

In the stirrups, she is telling a nurse that she doesn’t want a transvaginal exam. Doctor says “Sorry miss, you’re first trimester. The male Republicans who run Texas require that all abortion seekers be examined with a 10″ shaming wand.” She asks “Will it hurt?” Nurse says, “Well, it’s not comfortable, honey. But Texas feels you should have thought of that.” Doctor says, “By the authority invested in me by the GOP base, I thee rape."

The cartoon sketch is not only a political statement against those who have passed and advocate this law, it is also one that projects a view of legal normativity, specifically in relation to criminal law and the offense of rape. In Trudeau's view (amongst others) the procedure amounts to state-mandated rape. He asserts:

Texas’s HB-15 [bill] isn’t hard to explain: The bill says that in order for a woman to obtain a perfectly legal medical procedure, she is first compelled by law to endure a vaginal probe with a hard, plastic 10-inch wand. The World Health Organization defines rape as “physically forced or otherwise coerced penetration — even if slight — of the vulva or anus, using a penis, other body parts or an object.” You tell me the difference.

In justifying the use of the word rape, Trudeau further explained that "[c]oercion need not be physically violent to meet the threshold."

Proponents of the law will of course naturally object to this position arguing that a woman who wants to have an abortion is not being raped during these sonographic "procedures" as the woman seeking the abortion has a choice to consent to them.

True enough, there are times where patients must consent to certain invasive or otherwise uncomfortable preliminary procedures before undergoing a major or principal treatment or procedure. However, there is a difference when these invasive preliminary procedures are necessary. The patient has to make a choice to forego the main treatment or procedure or go through through the preliminary procedures and acquire the main procedure. Where the invasive procedure is not medically necessary and is invasive as the one prescribed under the impugned law, the circumstances are not the same. The choice is not nearly an acceptable one given the procedure that they must be forced to undergo is not medically necessary.

Saturday, February 25, 2012

Songs of Freedom: Sun City and the Anti-Apartheid Movement

During the mid-1980s, artists in the music industry lent their voices, instruments, star power and time to the famine in Africa. Several songs were produced leading up to the epic Live Aid concert in July 1985. Much of this was waged toward generating money and sympathy for victims of the famine. However, in 1985 another powerful song was released - a song of protest against the inherent inequality (and crime) of apartheid in South Africa - Sun City.

Sun City is a resort located in the former bantustan of Bophuthatswana. Bantustans were constructed as "independent" or "autonomous" homelands" created by the South African state to which Black South Africans were forcibly relocated. No nation outside of South Africa recognized the independent nature of these bantustans. In these bantustans, Van Zandt saw strong parallels with the reservation system in the United States and the relegation of indigenous Americans to these reservations.

Sun City, as a resort sought to draw in tourists and vacationers - including music and performing artists. Van Zandt perceived performances by foreign artists from the Global North at Sun City as a legitimation of apartheid. As a way of attacking and throwing attention on the immorality of apartheid, and these bantustans, Van Zandt wrote Sun City. A song, album and video were produced bringing together rock, folk and rap artists - including Van Zandt, U2, Bob Dylan, Run DMC, Bruce Springsteen and many others top contemporart artists. The lyrics touch upon important themes relating to law and politics.

It focuses on the agency of international artists to boycott giving performances in South Africa during that era and specifically resorts such as Sun City. The chorus (full lyrics reproduced below) repeats the incantation: "I say, I, I, I, I ain't gonna play Sun City." While the tone of the lyrics and the manner in which they are sung are defiant, it is about defiance in furtherance of fundamental legal principles including equality. It's about the deprivation of equality through forced relocation and violence against those resisting apartheid - considered by the United Nations as a crime against humanity. The concept of equality is enshrined in numerous international treaties, including the International Covenant on Civil and Political Rights and the International Convention on the Elimination of all Forms of Racial Discrimination. The song was also in furtherance of the UN's cultural boycott of South Africa, which some prominent musical artists and cultural icons, such as Queen and Rod Stewart disobeyed.

The agency of artists is linked to the notion of freedom and responsibility of those who can deligitimize apartheid and the failure to act appropriately in light of the legal deprivations tied to apartheid. This is reflected in the following verse:


It's time to accept our responsibility
Freedom is a privilege nobody rides for free
Look around the world baby it can't be denied
Why are we always on the wrong side

Another verse powerfully ends with the following line: "We're stabbing our brothers and sisters in the back" delivered angrily by Bruce Springsteen and Bono (of U2) at different points in the song.

Tied to the notion of agency and the failure to engage in a manner to weaken and undermine the South African government, the song criticizes the Reagan administration's discredited policy of constructive engagement, which mirrored Margaret Thatcher's in England. The policy sought to avoid economic boycotts against South Africa in favour of incentives. In light of this policy, Reagan vetoed measures passed by the United States Congress with significant Republican support in the Senate rejecting President Reagan's stance. In 1986, Congress passed the Comprehensive Anti-Apartheid Act with a significant enough majority thus overriding Reagan's veto. The Act forbade any new United States trade and investment in South Africa. Similar legislation was passed in European jurisdictions as well as Japan.

Ultimately, Nelson Mandela and other anti-Apartheid leaders were released from South African detention facilities. Apartheid was formally dismantled and popular elections were held resulting in Mandela's historic election as President. A number of factors led to this result. Sun City was part of a phenomenon of endeavours to boycott and protest apartheid. However much or little Sun City played a role in its dismantling (in the United States - it purportedly received little radio airplay), songs and other forms of popular culture can play a critical role in drawing attention to a political cause against an ongoing international violation and in articulating a vision of law and justice.


Sun City

We're rockers and rappers united and strong
We're here to talk about South Africa we don't like what's going on
It's time for some justice it's time for the truth
We've realized there's only one thing we can do

I ain't gonna play Sun City

Relocation to phony homelands
Separation of families I can't understand
23 million can't vote because they're black
We're stabbing our brothers and sisters in the back

I ain't gonna play Sun City

Our government tells us we're doing all we can
Constructive Engagement is Ronald Reagan's plan
Meanwhile people are dying and giving up hope
This quiet diplomacy ain't nothing but a joke

I ain't gonna play Sun City

Boputhuswana is far away
But we know it's in South Africa no matter what they say
You can't buy me I don't care what you pay
Don't ask me Sun City because I ain't gonna play

I ain't gonna play Sun City

It's time to accept our responsibility
Freedom is a privilege nobody rides for free
Look around the world baby it can't be denied
Why are we always on the wrong side

I ain't gonna play Sun City

Relocation to phony homelands
Separation of families I can't understand
23 million can't vote because they're black
We're stabbing our brothers and sisters in the back

Lyrics courtesy of: http://www.hallandoates.de/Lyrics/Sun%20City.htm


Sources:

Michael C. Beaubien, "The Cultural Boycott of South Africa" (1982) 29 Africa Today 5.

John Harris, "The Sins of St Freddie" (14 January 2005).