UPDATED: Maricopa County Attorney Rachel Mitchell’s Misleading Statement on Abortion Prosecutions

UPDATE 11/14/22: With Mitchell running about 50K votes behind Gunnigle, it seems very likely the Mitchell will be elected to a full term, so I’m bringing back this analysis of Mitchell’s misleading commitments on prosecuting abortion cases.

IMO, Maricopa residents missed a real opportunity to deeply reform the outdated and frankly racist assumptions and institutions that provide public safety for most of Arizona’s citizens. We can hope that having a conservative Democratic Attorney General and Governor will ameliorate and curb some the worst abuses and calumnies suffered by Maricopa residents due to the continuation of the failed and discredited public safety paradigms which Mitchell will surely perpetuate.

I certainly hope that another progressive reformer (or Gunnigle herself) contests the seat again, having come reasonably close to victory this cycle, and as the public conversation around public safety continues to evolve and broaden awareness of the worst outcomes of current policies.

END UPDATE

Surprise! Acting (now Elected) Maricopa County Attorney Rachel Mitchell is a LAWYER. You almost have to BE a lawyer to accurately parse her deeply misleading statement regarding abortion prosecutions. Her statement has been widely misinterpreted by journalists, leading to headlines that categorically misstate her position. Every headline about her statement that I’ve seen states categorically that she WILL NOT PROSECUTE WOMEN for seeking or having an abortion. That is NOT what she said. Listen closely:

What she actually says is that she is not prosecuting women for two reasons: she hasn’t gotten any referrals to her office, and there is no current statutory basis for prosecuting women seeking or having an abortion. That DOES NOT imply that she would not do so if she HAD a statute to base a criminal charge on, and if she got a referral for prosecution. What she ACTUALLY promises is ONLY that she will not prosecute women who have been the victim of rape or incest.

Let’s unpack that in a lawyerly manner, starting with the latter portion of her statement. Mitchell says she would not prosecute VICTIMS of rape or incest. Giving this the MOST generous interpretation one could conclude that IF a women REPORTS to law enforcement that she’s been raped or suffered incest, Mitchell would not prosecute that woman. Under AZ law, one is only legally qualified as a victim upon a report of a crime to law enforcement. No report? Then a person is not a victim under the law. One can therefore conclude that women who are not legally victims would be eligible for prosecution. That is ALL she has said.

Next, she notes carefully that she currently has no statutory basis for prosecuting women who seek or have an abortion. She is correct in this statement, but it does preclude her from prosecuting IF she had such authority, because her statement is conditional. Mitchell only says that she is not prosecuting women due to that lack: she does NOT promise that she will exercise her prosecutorial discretion to NEVER prosecute ANY women for having or seeking an abortion, only that she currently hasn’t any means to do so. One can only conclude therefore that she COULD and likely WOULD undertake such prosecutions if she were given a statutory basis and got a referral from law enforcement.

Based on Mitchell’s statement one can conclude ONLY that IF she had a statutory basis for a criminal prosecution of women who seek or have abortions, AND a woman were NOT a victim under the laws of AZ, that that Mitchell could ,and likely would, prosecute those women. Let’s be clear: if a woman had NOT at least reported a rape or incest to law enforcement, AND there were a statutory crime for her to prosecute, Mitchell COULD still prosecute a woman for seeking or having an abortion based on her statement.

And even that is being very generous, and somewhat optimistic.

If one were ungenerous regarding Mitchell’s promise regarding victims of rape or incest, there is a lot left to unpack. Let’s assume a woman is pregnant because she was raped or she was impregnated as a result of incestuous sex. IF that women did report that incident to law enforcement she MIGHT be covered by Mitchell’s statement. But she also might not.

Let’s presume that the police investigate the allegation of rape or incest, but find insufficient evidence to arrest or refer the incident for prosecution, and no one is charged with a criminal offense. Her victim status due to such a report MIGHT be a DEFENSE in a prosecution of that woman for seeking or having an abortion, but it doesn’t preclude a zealous prosecutor from bringing a charge against that woman (again, assuming there is a statutory basis for that prosecution), and making her prove that affirmative defense in court. That could include having to confront her rapist or incestuous victimizer in court. And that would almost certainly be the case if she NEVER reported the rape or incest to law enforcement prior to having or seeking an abortion, which is likely and quite common. If she didn’t make a report until after the abortion, or being charged criminally for that abortion, then it would be almost certain that she would have to prove that defense in court and have even less chance of success.

Now, let’s be really clear: I think any prosecutor would have to be an utterly heartless religious zealot to seek prosecution of a women for seeking or having an abortion, presuming there were a statutory basis. Let’s assume that a zealous prosecutor is referred such a case. Such a prosecutor might file an information or indictment against a woman for having an abortion if they concluded that a jury or judge would not sustain a woman’s affirmative defense of rape or incest. Under AZ law, a criminal defendant must PROVE a statutory defense to the trier of fact by a PREPONDERANCE of the evidence. That means, basically, it is more likely than not, that the statutory defense is true. If a prosecutor evaluated the evidence to be less that the defendant would need to prove the statutory defense in court, he or she could prosecute the case.

Now, let’s return to our victim. First, let’s be clear that MOST rapes and incidents of incest are NEVER reported to the police. That could change, of course, given the added incentive to do so in anticipation of possible criminal charges resulting from an abortion, but that is certainly not a given. It is certainly reasonable to assume that amany women will have never reported a rape or incest that resulted in pregnancy and concluded with an abortion (if she could even get one under ANY circumstance, given that providing one is now a felony offense, even so, she might have to provide some proof to a provider that a rape or incest occurred as a defense to the provider’s criminal exposure… but that might be a whole other analysis). Without a reasonably contemporaneous police report, or a possibly a doctor’s examination immediately following the rape, she only has her assertion that the crime against her ever occurred. And even if she does report that crime, if no one were charged with a crime as a result of that report, one could conclude that the investigator found that there was no probable cause to arrest anyone. Probable cause for arrest requires that a reasonable person would find that evidence existed to conclude a crime occurred and that the arrestee did it. An investigator’s lack of probable cause to charge a crime would likely be pretty good proof in court that the defendant to an abortion crime lacks preponderant evidence that the rape or incest occurred at all. A woman who never reported the crime – or did report it, but there was no arrest – would be very exposed to criminal liability for an abortion crime in court, despite the existence of a statutory defense.

What does this imply for Mitchell’s statement? That even if a woman claims that her abortion were the result of rape or incest, a prosecutor might well conclude that woman will be unable meet the standard of proof for her affirmative defense and charge her despite her claim of a defense. Even if a woman reported her rape or the incest to the police, if no one were arrested, a prosecutor – certainly including Ms. Mitchell – might well choose to proceed with a prosecution of that woman regardless of a contemporaneous report of the rape or incest. After careful analysis of what Mitchell actually says, we can reasonably conclude that what Mitchell is actually promising if VERY little at all.

In conclusion, the headlines that Mitchell got with her very careful statement are WAY too broad and categorical given careful analysis of her statement. Mitchell has left herself PLENTY of room to maneuver if she were to be give a statutory basis for prosecution of women for having an abortion. And if you think the AZGOP is not practically guaranteed to pass such a statute, I have a bridge that just came on the market that will be wildly profitable for you…

Every journalist who printed such a headline needs to read a real lawyerly analysis of Mitchell’s statement, maybe this one, and ask pointed follow-up questions before reassuring the public that women are safe from prosecution by Mitchell for having an abortion. Mitchell is clearly trying to neutralize the abortion issue in her race against Julie Gunnigle, who has made utterly categorical statements on this issue. Mitchell shouldn’t be getting the reassuring headlines she’s gotten from the press with her VERY narrow and, frankly, misleading statement.