Comment: Texas’ Abbot can’t arrest way out of tough question

Asked about the state’s new abortion law and rape, Abbot made a promise he can’t possibly keep.

By Philip Bump / The Washington Post

During a signing ceremony for Texas’ new restrictions on voting, Gov. Greg Abbott, a Republican, was asked about the state’s strict new prohibitions against abortion.

“Why force a rape or incest victim to carry a pregnancy to term?” a reporter asked.

“It doesn’t require that at all,” Abbott said of the law, “because, obviously, it provides at least six weeks for a person to be able to get an abortion.”

This is a misleading assertion, as the 19th News reported. In most cases, women won’t know that they are pregnant until at least the fourth week of their pregnancies, based on how pregnancy durations are calculated. That would leave the woman two weeks during which she might legally obtain an abortion in the state. After that point, she would be forced to either carry the baby to term or risk a lawsuit costing her $10,000.

“That said, however, let’s make something very clear,” Abbott continued, his voice gaining emphasis. “Rape is a crime, and Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets.”

Those standing behind him applauded, but this bit of rhetoric is even less rooted in reality.

The most obvious way in which this strategy is flawed is that prosecuting a rapist does not prevent a rape, anymore than prosecuting a murderer saves his victim’s life. After-the-fact legal actions are of course important, but even a successful effort to arrest everyone who has committed rape in Texas does not prevent a new rape from occurring.

But there’s essentially no way that every person who has committed rape will be caught. In 2019, data compiled by the FBI’s Uniform Crime Reporting system indicates that about 8,000 Texans, the vast majority of them women, were victims of rape. To the point about preventing rapes before they occur, it’s worth pointing out that rapes are usually committed by acquaintances of their victims, as was the case in nearly 9 in 10 rapes reported to the FBI in Texas that year. On a per capita basis, incidentally, rape is more common in Texas than in the United States overall.

Those numbers reflect only arrests, though, and research suggests that a small fraction of rapists are actually charged; and not all rapes are reported to the police in the first place. Data from the anti-sexual violence organization RAINN indicate that about 31 percent of rapes committed nationally are reported to police and only 5 percent lead to an arrest. If that pattern holds in Texas, it suggests that the number of perpetrators in 2019 wasn’t 8,700, as reported to the FBI, but a far larger number.

Abbott seems to be pinning his strategy on the idea that rapists are often repeat offenders, which, research suggests, is often true. Texas has a three-strikes law that applies to rape, but for first- or second-time offenders, sentences range from two to 20 years. It’s not clear how many of those who commit rape or sexual assault in Texas are first-time offenders, in part because so many offenses go unreported.

Analysis from the Bureau of Justice Statistics published in 2019 looked at the incarceration of people who’d committed rape in 30 states. The median length of sentence those offenders received was five years; on average, they’d been arrested six times before their rape convictions, often for drug or property offenses. The research also indicates that, after their release from prison, many are later rearrested.

“Overall,” that research states, “67 percent of sex offenders released in 2005 were arrested at least once for any type of crime during the 9-year follow-up period.” The younger the offender at his release, the more likely he was to be rearrested.

Only 8 percent of those later arrests, though, were for rape. About 10,000 of the 12,000 rapes committed by those released from prison during the period considered in the study were committed by former felons who were incarcerated for crimes other than rape.

In other words, even locking up convicted rapists indefinitely — which the state often can’t do — wouldn’t prevent former felons from committing the offense.

It seems clear that Abbott was not so much announcing a new policy centered on an unattainable zero-rape goal so much as he was trying to pivot from an uncomfortable question about Texas’ position on abortion in the case of rape to some tough-on-crime politicking. But in doing so he made clear how difficult it would be to uproot those thousands of rapes that occur in his state each year; and how often, then, women might find themselves scrambling within that two-week window to find a provider who could help end an unwanted pregnancy.

Philip Bump is a correspondent for The Washington Post based in New York. Before joining The Post in 2014, he led politics coverage for the Atlantic Wire.

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