When ‘Battery’ is not Enough: Exposing the Gaps in Unauthorised Vaginal Examinations During Labour as a Crime of Battery

Vaginal Examinations During Childbirth: Consent, Coercion and COVID-19

“…There are also concerns that people are still expected to consent to certain procedures during birth and face coercion from staff if they attempt to refuse (Hill 2019 ). Further, as will be demonstrated in the next section, healthcare professionals are fairly immune from any legal liability where unconsented/inadequately consented examinations do occur (Pickles and Herring 2020 ).…”

“…That it is known that unconsented VEs continue to be performed and yet those involved routinely avoid any form of liability exposes wider, institutional problems in relation to both accountability, 6 and the way that women—particularly birthing women—are viewed and devalued within the medical system. 7 It clearly demonstrates that the frameworks which allowed unconsented VEs to occur so regularly have yet to be fully dismantled (Pickles 2020 , 141), and in doing so it underscores the credibility of the threat posed by the CAPs to the autonomy of birthing people.…”

“…A medical professional can also be charged with battery under the criminal law where they “intentionally or recklessly touch the patient without consent” (Herring 2002 , 153). However, despite the fact that “there seems to be little reason to question the applicability of the crime of battery to unauthorised vaginal examinations during labour”, this clear applicability “does not translate into this crime being applied within the maternity care context” (Pickles 2020 , 138). This might, in part, be due to judicial reticence to reprimand doctors under the criminal law, save in circumstances where “the professional was acting maliciously” (Herring 2002 , 153).…”

“…The fact that not only does the practice of performing VEs absent appropriate consent continue, but also that policies which actually increase the likelihood of these occurring are able to be implemented, demonstrates the ineffectiveness of the law as a tool to tackle this issue (Pickles 2020 , 138). This is disempowering and invalidating for those who experience harm as a result of these policies and practices, and it also reflects on a broader problem of accountability that pervades the medical institution (Erdman 2015 , 48).…”

“…This is disempowering and invalidating for those who experience harm as a result of these policies and practices, and it also reflects on a broader problem of accountability that pervades the medical institution (Erdman 2015 , 48). In the maternity setting, this issue is further compounded both by the fact that there continues to be gendered devaluing of women in society (Pickles 2020 , 141) and the tendency to see the birth of a ‘healthy baby’ as the central focus of maternity care, regardless of the way the birthing person experiences that birth.…”