Amid bipartisan outcry over a Missouri Republican’s reference to "legitimate rape," a pro-Democratic political action committee drew attention to legislation supposedly containing similar language.
"Every single member of the Texas Republican congressional delegation cosponsored the same bill supported by (U.S. Rep. Todd) Akin and Paul Ryan that attempts to distinguish between ‘forcible rape’ and other sexual assaults," said a report circulated Aug. 23, 2012, by the Lone Star Project.
PolitiFact New Jersey confirmed in an Aug. 22, 2012, item that Akin and Ryan, the Republican vice presidential nominee and Wisconsin House member, co-sponsored the No Taxpayer Funding for Abortion Act in July 2010 and again in January 2011.
Both versions were written by U.S. Rep. Christopher Smith, R-N.J., and referred to "forcible" rape; that word was removed from the 2011 bill during congressional deliberations.
In all versions of Smith’s legislation, rape or "forcible" rape was mentioned in a section defining exceptions -- that is, cases in which using federal money to pay for abortions would not be prohibited.
Lone Star Project researcher Erik Ruselowski emailed us (and we double-checked) that part of the version introduced in the House in 2011:
SEC. 309. TREATMENT OF ABORTIONS RELATED TO RAPE, INCEST, OR PRESERVING THE LIFE OF THE MOTHER.
The limitations established in sections 301, 302, 303, and 304 shall not apply to an abortion --
(1) if the pregnancy occurred because the pregnant female was the subject of an act of forcible rape or, if a minor, an act of incest; or
(2) in the case where the pregnant female suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the pregnant female in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself.
According to the text (2010’s HR 5939 and 2011’s HR 3) and numerous news stories about the act we read in the Nexis news database, the main purpose of the legislation was not redefining rape but limiting the use of federal funds to pay for abortion.
Seeking background on the term "forcible," we learned that forcible rape was and is listed as a specific crime in some states and, according to a Jan. 6, 2012, Justice Department press release, was from 1927 through 2011 a part of the definition of rape for purposes of the Uniform Crime Report data that law enforcement agencies supply to the FBI.
The "longstanding, narrow definition of forcible rape," according to the release, "is ‘the carnal knowledge of a female, forcibly and against her will’ " -- penile penetration of the vagina despite physical resistance by the victim. The new, broader definition is: "The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim."
FBI Assistant Director David Cuthbertson said in the release, "This change will give law enforcement the ability to report more complete rape offense data, as the new definition reflects the vast majority of state rape statutes."
An Aug. 23, 2012, New York Times news story about Akin’s comment said, "States have been adjusting their definitions of rape for the past 30 years, many moving away from the insistence on evidence of force because most rapes do not result in harm to the woman separate from the act itself."
So, what did the failed legislation cited by the Lone Star Project propose to do?
Since 1976, federal health appropriations acts have included a modification commonly called the Hyde Amendment, which bars the use of federal dollars to pay for abortions except in cases of rape or incest or to save the mother’s life.
Republicans said the Democratic-steered federal health care overhaul, signed into law by President Barack Obama in March 2010, did not provide enough protections against federal money being used to pay for abortions. One focus of the concerns was state-level insurance "exchanges" established by the act, in which private insurance companies could compete for the business of people not insured through employers.
A Jan. 1, 2011, Boston Globe news story quoted Smith as saying that without an additional change in law, "we are setting up a funding scheme to pay for abortions."
According to the congressional database, Smith’s 2010 bill was short-lived and his amended 2011 bill won approval in the Republican-majority House by a 251-175 vote, with all Republicans and 16 Democrats in favor, but stalled in the Democratic-majority Senate.
Notably, the description of rape in Smith’s proposal went farther than the Hyde Amendment, which did not use the word "forcible" but stated simply that abortions are exempted from the bill’s funding restrictions when the pregnancy threatens the mother’s life or is the result of incest or rape.
Soon after Smith introduced the bill Jan. 20, 2011, critics called attention to its use of the phrase "forcible rape." A Feb. 1, 2011, Washington Post news story reported that women’s groups objected to the word "forcible" in HR 3: "Critics say the modifier could distinguish it from other kinds of sexual assault that are typically recognized as rape, including statutory rape and attacks that occur because of drugs or verbal threats."
The Post quoted cosponsor Rep. Daniel Lipinski, D-Ill., as saying the bill "was not intended to change existing law regarding taxpayer funding for abortion in cases of rape, nor is it expected that it would do so."
However, Smith quickly agreed to delete the word because, the Post reported in a Feb. 3, 2011, news story, it was being "misconstrued." A CBS news story the same day quoted Smith spokesman Jeff Sagnip: "The word ‘forcible’ will be replaced with the original language from the Hyde Amendment."
House Judiciary Committee press secretary Charlotte Sellmyer told us by email, "The bill was officially amended when the amendment was voted on in committee, which was March 3, 2011."
In a phone interview, Lone Star Project founder Matt Angle told us that when he wrote the PAC’s report, he was referring to the Texas members of the U.S. House (the only group that could co-sponsor a bill with House members Akin and Ryan) cosponsoring the act when it was reintroduced Jan. 20, 2011, and afterwards before "forcible" was deleted.
"Everybody from District 1, Gohmert, to District 32, Pete Sessions, and all the Republicans in between," Angle said.
For perspective, we checked the cosponsors of both the 2010 and 2011 introductions of the bill using THOMAS, the congressional database.
The version introduced July 29, 2010, included among its eventual 186 cosponsors all 20 Texas Republicans plus two Democrats -- Solomon Ortiz of Corpus Christi and Henry Cuellar of Laredo -- from the 32-member Texas delegation.
The 20 Texas Republicans were, listed by district number, Louie Gohmert of Tyler, Ted Poe of Humble, Sam Johnson of Plano, Ralph Hall of Rockwall, Jeb Hensarling of Dallas, Joe Barton of Ennis, John Culberson of Houston, Kevin Brady of The Woodlands, Michael McCaul of Austin, Michael Conaway of Midland, Kay Granger of Fort Worth, Mac Thornberry of Clarendon, Ron Paul of Lake Jackson, Randy Neugebauer of Lubbock, Lamar Smith of San Antonio, Pete Olson of Sugar Land, Kenny Marchant of Coppell, Michael Burgess of Lewisville, John Carter of Round Rock and Pete Sessions of Dallas.
Voters in November 2010 elected three additional Republicans to the Texas delegation. And in 2011, all 23 Texas Republicans in the House but no Texas Democrats were among the 227 legislators who eventually signed on as cosponsors of Smith’s HR 3.
The Texas cosponsors were the 20 Republicans from 2010 plus GOP freshmen Bill Flores of Bryan, Francisco "Quico" Canseco of San Antonio and Blake Farenthold of Corpus Christi. Seventeen of the Texans were original cosponsors. Five joined Feb. 8, 2011.
The last one, however, got on board March 8 -- after the deletion of "forcible." The latecomer was Culberson, whose office offered no comment when we asked about his timing.
We looped back to Angle with our findings on the cosponsors and the intent of the bill. Angle told us that he believes the Texas Republicans showed by cosponsoring the bill that they supported making a legal distinction between rape and forcible rape.
Except for Culberson in 2011, all Texas Republicans in the House cosponsored versions of the legislation using the word "forcible."
But, absent from the PAC’s claim is the fact that two Texas Democrats cosponsored the 2010 proposal, which dampens the suggestion that Republicans alone were committing to placing "forcible" rape into the proposal. And though the PAC said the "bill ... attempts to distinguish between ‘forcible rape’ and other sexual assaults," redefining rape was not the proposal’s purpose. Also, its author agreed to delete the term when critics singled it out.
We rate the statement Half True.