August 12, 2014 02:03 PM UTC

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

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• by: Jason Salzman

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

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.)