Under Gardner’s abortion bill, doctor could have faced more jail time than rapist

(Collateral damage in the "War on Women" – Promoted by Colorado Pols)

Cory Gardner.

Cory Gardner.

It's been widely reported that Colorado Senate candidate Cory Gardner sponsored a bill in 2007 that would have outlawed all abortion in Colorado, including for rape and incest.

But there's a detail about the ramifications of Gardner's legislation that's gone unreported, and it's important because it illuminates, in a tangible way, just how serious his bill was about banning abortion.

Let's say a woman was raped, became pregnant, and wanted to have an abortion.

Under the Gardner's proposed law, a doctor who performed her abortion would face Class 3 felony charges.

If the raped woman found a doctor willing to break the law and perform an illegal abortion, and if both the rapist and the doctor got caught by police, what would have been the potential charges and punishments against the rapist and the doctor?

I put that question to Mark Silverstein, Legal Director of the ACLU of Colorado.

"A class 3 felony is punishable by 4-12 years in the penitentiary," Silverstein told me via email. "Sexual assault is at 18-3-402 of the criminal code. It is a class 4 felony (18-3-402(2)), except when it is a class 3 felony (18-3-402(3.5)), or when it is a class 2 felony (18-3-402 (5)).

"When sexual assault is a class 4 felony, it is punishable by 2 to 6 years in the penitentiary.

"A class 2 felony is 8 – 24 years in prison. These penalties can be found at 18-1.3-401 (1)(a)(III)(V)(A).

"It looks like to get sexual assault into the class 2 category, there has to be serious bodily injury to the victim or the crime has to be carried out with use of a deadly weapon, or the assaulter made the victim believe there was a deadly weapon (even if there was not one)."

So, as I read Silverstein's answer, it looked to me like a doctor who performed an abortion on a raped woman could actually have gotten in more serious legal trouble than a rapist.

To make sure I had this right, I asked Silverstein if he agreed with me that under Gardner's bill, the doctor could have faced a more serious charge than the rapist, though this would not always be the case.

"Yes," replied Silverstein, "the least aggravated category of sexual assault is a lesser category of felony."

(An early version of this story stated that the hypothetical rape was also incest.)

7 Community Comments, Facebook Comments

  1. emarquez says:

    I don't like Cory much and I do like Mark, but Mark is a civil attorney, not a criminal defense attorney. In 2002, the Colorado legislature enacted the Lifetime Supervision of Sex Offenders Act.

    It reads in small part:

    1)(a) Except as otherwise provided in this subsection (1) and in subsection (2) of this section, the district court having jurisdiction shall sentence a sex offender to the custody of the department for an indeterminate term of at least the minimum of the presumptive range specified in section 18-1.3-401 for the level of offense committed and a maximum of the sex offender's natural life.

    § 18-1.3-1004, C.R.S.


    Very few sex offender are getting out once they are sentenced to DOC, and even then, they are looking at a lifetime of parole supervision.


    Under Cory's law, the doctor would certainly receive an unjustifiable sentence, but the sex offender would undoubtedly do more time. This is assuming no plea bargains, no mitigation argument, etc.

    • bullshit!bullshit! says:

      I read about pretty damn light sentences for rape all the time.

    • Jason Salzman says:

      I asked Silverstein about rape, not incest. So his answer adressed only a rapist.

      • emarquez says:

        What is commonly thought of as "rape" is covered by the criminal statutes dealing with "Unlawful Sexual Offenses" found at 18-3-401 et.seq. People convicted of forcibly having intercourse with an unwilling person (your scenario) face a penalty of what is essentially a life sentence. There are people in Colorado who had sex with an intoxicated person one time doing 10 years to life.

        I am not sure why you bring up incest. I certainly wasn't talking about it.

        I have tremendous respect for Mark Silverstein. I know him and I have worked with him, but he is not a criminal defense attorney. If you want information about a legal issue dealing with criminal statutes, talk to a criminal defense attorney or a prosecutor.

  2. Andrew Carnegie says:

    Under Jason Saltzman's headline, there could have been a story that made sense.  But again, there wasn't.

    As Jason, non-attorney, reads an answer from an ACLU attorney who does not practice criminal law (ie he does not know what he is talking about) about sentencing in criminal cases, something could happen.

    Thanks for sharing.

    I look forward to the next the media should cover something that even they consider beating a dead horse.

    • DavieDavie says:

      So I take it we'll see an announcement tomorrow from the Gardner campaign acknowledging their heartfelt belief that women who choose to end their pregnancy from rape and the doctor that helps them belong in prison with the rapist, right?

      It's a principled stand you and Cory are proud to share, right AChole?


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