Did a 10 year old rape victim from Ohio get denied an abortion? Part 2
Did a 10 year old rape victim from Ohio get denied an abortion? Part 2
An arrest has been made, but the story gets even more complicated.
On July 9th I posted an article outlining what was known about the anecdotal story of a 10 year old girl from Ohio who was reported to have been a victim of rape, in need of abortion services, and was forced to travel to Indiana for the procedure. The stated reason for travelling to Ohio was that Ohio now has a six week ban on abortions since Roe v Wade was overturned. The girl was reportedly three days over the six week limit allowed by law.
The anecdotal story was repeated widely, with very minimal details. One problem with the anecdotal story is that Ohio does not have any six week limit, such that one could miss it by three days. Reporters could not get any information to corroborate the story, and on June 11th the Attorney General in Ohio, Dave Yost, went on Fox News claiming he had heard “not a whisper” about the event.
Arrest made
On July 13th, the Columbus Dispatch reported that an arrest had been made.
Gerson Fuentes, 27, whose last known address was an apartment on Columbus' Northwest Side, was arrested Tuesday after police say he confessed to raping the child on at least two occasions. He's since been charged with rape, a felony of the first degree in Ohio.
Columbus police were made aware of the girl's pregnancy through a referral by Franklin County Children Services that was made by her mother on June 22, Det. Jeffrey Huhn testified Wednesday morning at Fuentes' arraignment. On June 30, the girl underwent a medical abortion in Indianapolis, Huhn said.
Huhn also testified that DNA from the clinic in Indianapolis is being tested against samples from Fuentes, as well as the child's siblings, to confirm contribution to the aborted fetus.
Franklin County Municipal Court Judge Cynthia Ebner said the case did not warrant Fuentes — who is believed to be undocumented — to be held without bond.
Ebner said a high bond was necessary, however, due to Fuentes being a possible flight risk and for the safety of the child involved. Before being arrested, Huhn and Det. David Phillips collected a saliva sample from Fuentes, according to a probable cause statement.
Ebner set a $2 million bond for Fuentes, who is being held in the Franklin County jail.
Ohio Attorney General Yost also claimed the heartbeat law had exceptions that the victim would fall under
“Ohio’s heartbeat law has a medical emergency exception broader than just the life of the mother. This young girl, if she exists, and if this horrible thing actually happened to her — breaks my heart to think about it — she did not have to leave Ohio to find treatment.”
This is true, maybe with an asterisk. The law, Section 2919.193 says
(B) Division (A) of this section does not apply to a physician who performs or induces the abortion if the physician believes that a medical emergency, as defined in section 2919.16 of the Revised Code, exists that prevents compliance with that division.
(C) A physician who performs or induces an abortion on a pregnant woman based on the exception in division (B) of this section shall make written notations in the pregnant woman's medical records of both of the following:
(1) The physician's belief that a medical emergency necessitating the abortion existed;
(2) The medical condition of the pregnant woman that assertedly prevented compliance with division (A) of this section.
The law in this section does have a medical emergency exception. The asterisk I attached to it, however involves the law referring you to Section 2919.16 [emphasis mine]
(F) "Medical emergency" means a condition that in the physician's good faith medical judgment, based upon the facts known to the physician at that time, so complicates the woman's pregnancy as to necessitate the immediate performance or inducement of an abortion in order to prevent the death of the pregnant woman or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman that delay in the performance or inducement of the abortion would create.
[…]
(K) "Serious risk of the substantial and irreversible impairment of a major bodily function" means any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function. A medically diagnosed condition that constitutes a "serious risk of the substantial and irreversible impairment of a major bodily function" includes pre-eclampsia, inevitable abortion, and premature rupture of the membranes, may include, but is not limited to, diabetes and multiple sclerosis, and does not include a condition related to the woman's mental health.
AG Yost claims this law, even if a heartbeat were detected, still has a medical emergency exception this girl would fall under, simply for the fact she’s 10 years old.
While it is possible his assertion is correct, it is not self-evident.
Phrases such as “physician's good faith medical judgment” allow one to interpret this law as ceding to the doctor’s judgement but the words “as to necessitate the immediate performance or inducement of an abortion in order to prevent the death of the pregnant woman” appears to require the doctor in good faith and medical judgement conclude the patient would die in the immediate future unless the procedure is performed.
“Serious risk of the substantial and irreversible impairment of a major bodily function” appears to have wording that would cover Yost’s claims. After all, the girl is 10 years old, and pregnancy could very well cause “substantial and irreversible impairment of a major bodily function.” However, the list of inclusions comes after the words “medically diagnosed condition.”
I don’t know if “being 10 years old” constitutes a medically diagnosed condition, and the inclusions, even with the words “but not limited to” do not appear give one an obvious understanding that “being 10 years old” qualifies.
Old questions remain, new questions arise
In the tweet of the Yost interview above, you see it noted that just as I wrote, Ohio does not have a six week law but a heartbeat law. Yost however was apparently completely unaware of the fact Franklin County Children Services was notified by the mother on June 22nd.
Some old questions remain
Did the Ohio doctor properly notify the authorities as is required of them as a mandated reporter?
Why did they travel to Indiana?
Did the Ohio doctor detect a fetal heartbeat such that he was prohibited from performing the procedure?
Did they decide the incorrect concept of “six week” ban prohibited them?
Did the doctor in Indiana follow all proper procedures?
Where did the doctor get the “three days over six weeks” idea?
And some new questions arise
For such a viral story, why was Attorney General Yost confident enough to claim he had heard nothing about the case, that would have been known to at least Franklin County Children Services on June 22nd?
What is the nature of the relationship between the accused and the victim?
One more huge, new question
It is reported that Franklin County Children Services [FCCS] was notified on June 22nd about this situation. Roe v Wade was overturned June 24th, two days later.
On June 22nd, despite the leak of the draft opinion by Chief Justice Samuel Alito, nobody knew June 24th would be the day the opinion would be delivered.
On June 22nd, Roe v Wade was not relevant to this story, and the heartbeat law, even being miscommunicated as a six week law, did not come into play..
What is the more refined timeline of events? Did the mother notify Franklin County Children Services and not see the Doctor until after Roe v Wade was overturned? Did the mother see the doctor and then notify FCCS, but schedule the procedure for after Roe v Wade was overturned? How did they identify the perpetrator and what caused the delay to make an arrest?
The plot is molasses
The Indiana doctor may have reported incorrect information
Fox News reported
The Guatemalan illegal immigrant charged with raping and impregnating an Ohio 10-year-old who traveled to Indiana for an abortion was listed as a minor in the report the Indiana-based abortionist sent to authorities.
Dr. Caitlin Bernard reported that the alleged rapist was approximately 17-years-old in an official filing to the Indiana Department of Health obtained Thursday by Fox News Digital. On Wednesday, Ohio authorities charged 27-year-old Gerson Fuentes, an illegal immigrant from Guatemala, with rape of a minor under 13 years old in the case.
While such a thing could be a simple error - either accidentally writing the wrong number or someone reading the wrong number - why it appears to be reported incorrectly may be important as new details develop.
Speaking of new details…
Telemundo interviewed the mother. The mother claims Gerson Fuentes is innocent.
This short interview is quite significant. The mother claims Gerson Fuentes, the man arrested on July 13th, is innocent. This revelation suggests the mother did not identify Fuentes as the perpetrator. Additionally, her defense of Fuentes leads one to infer that it’s quite possible her apparent personal familiarity with Fuentes is due to her being romantically involved with him.
While the interviewer from Telemundo is speaking Spanish for the audience of Telemundo’s benefit, the mother is clearly fluent in Spanish, and might be her primary language.
If her defense of Fuentes carries with it that she didn’t identify Fuentes earlier as being the perpetrator, it may have been her daughter who made the identification.
Finding answers
Unsatisfied with the depth of reporting elsewhere, I obtained some court records, the arraignment video, and the Indiana doctor’s state filing of the abortion.
The court records indicate the arrest was filed on July 12th. They list the date of the crime as May 12th. Bail was set for $2,000,085, instead of no bail, which is what the prosecution wanted. Fuentes was charged with violating Section 2907.02 of the Ohio Revised Code Title 29.
I have redacted more sensitive information. The crime is reported to have occurred at the same location listed as the defendant’s address, however.
During the arraignment, the arresting officer, Jeffrey Huhn, testified that he received his assignment to investigate the case on June 22nd, due to a referral from FCCS initiated by the mother.
He also testified the consultation for the abortion was on June 29th, and he believes the procedure June 30th. And the “products of conception” were picked up on July 2nd. Products of conception meaning biological material derived from the abortion (for genetic evidence).
Officer Huhn testified that on July 6th the investigators made contact with the family, and obtained DNA samples from her two brothers (one older, and one younger) as well as the victim. During this time is when the victim identified Gerson as the perpetrator.
Officer Huhn also testified that Gerson waived his rights and admitted to having vaginal intercourse on no less than two occasions.
Huhn testified that they are unable to find any documentation to verify Fuentes’ identity.
While setting the bail terms, it was ordered that he was not to have any contacted with the victim or family. The Judge then questioned the defense if the address that was provided for him was the correct address. The defense attorney said the address that was listed for him was really the victims, and that the defendant had a mother he could stay with to honor the no contact order.
It seems reasonable to infer the crime occurred at the victim’s residence and that the defendant was staying there often enough for him to consider it his.
The abortion record in Indiana was submitted on July 2nd. That document indicates that the girl’s last normal menses cycle started on May 13th, a day after the court records indicate the felony occurred.
The records also say that the doctor’s estimate for the age of gestation was six week, but that the evaluated post-feralization age of the fetus was four weeks.
The date of the termination of the pregnancy is listed as June 30th.
Known timeline
As of right now, the current timeline of events seems to be
Rape occurs on May 12th
Normal menses cycle starts May 13th
Mother reported pregnancy FCCS June 22nd
FCCS reports the rape to the police
Supreme Court overturns Roe v Wade June 24th
Victim is taken to Indiana for consultation June 29th
Pregnancy is terminated June 30th
Dr. Bernard talks about the situation in the IndyStar July 1st
Detectives visit the family, and collect DNA samples from the brothers and the victim July 6th
Victim identifies Fuentes July 6th
Search warrant for Fuentes’ DNA served July 12th
Fuentes provides DNA, waives rights, and admits to vaginal intercourse at least two times July 12th
Piecing the puzzle together
The more questions get answered the more questions are raised. But to the best that I can see, subject to change if details change, we can make some reasonable inferences.
Gerson Fuentes is in the country illegally, and may be living under an adopted identity. He is romantically involved with and stays with the mother of the victim enough of the time that he considers the mother’s residence as his own residence. Who is on the lease, who contributes majority of the rent, is unknown.
The mother’s native tongue is Spanish, and there is good reason to suspect she may not be here legally, given it appears Fuentes is not here legally.
The daughter was not “six weeks and three days” pregnant. From the date of the rape listed on the court documents, to FCCS being notified the victim was pregnant, certainly was six weeks. But given the victim’s menses cycle is on record as starting the next day, and the Indiana doctor lists the time since fertilization as 4 weeks and not six (evaluated post-procedure), it seems like may 12th was a sexual encounter but not the most recent sexual encounter. Those two data points together indicate conception near the beginning of June.
If those details are correct (the assessment of it being 4 weeks since fertilization and the victim’s menses cycle starting May 13th) then the original doctor in Ohio should have been informed before referral that the last cycle started on May 13th. This would make the estimate of “six weeks and three days” curious. Since there is no six week law such that three days over would be a factor, either the date of the last menses cycle was inferred by Dr. Caitlin Bernard by using the post-procedure evaluation and not provided by the victim or her mother, or the doctor in Ohio was both mistaken about the law and relied on the date of May 12th as being the pivotal date. [Addendum: it has been brought to my attention that the Ohio doctor also may have thought the supposed six week law applied to the gestation age, which would be counted from the start of the last menses cycle, instead of the fetal age]
Given the possibility the mother is also in the country illegally, there would be a motivation to keep a low profile. The mother, of course, needed to seek medical services to terminate the victim’s pregnancy, but calling too much attention to the situation could result in many negative consequences for her.
There is no six week law such that three days becomes a deciding factor. The post-procedure analysis reduces (but does not eliminate) the idea the doctor in Ohio who made the referral to Indiana detected a fetal heartbeat. It is conceivable that the true reason to travel to Indiana to perform the abortion was to reduce the spotlight in Ohio of the situation. Those attempting to assist the mother may have understood her immigration situation, and attempted to take steps to help her address the situation at hand and protect her (as much as they could) from winding up being deported. Since FCCS had already been made aware, her ability to avoid this scrutiny may have been near nil, but not impossible.
For example, Fox News appears to be correct that Dr. Bernard indeed listed the accused’s age as 17, and not 27.
This need not be Dr. Bernard’s misrepresentation. Given the mother’s current claims that Fuentes is innocent, she may have misrepresented the age and Dr. Bernard had no ability to isolate the victim to be told otherwise. Of course, Dr. Bernard may have knowingly misrepresented the age in order to attempt prevent the victim and her mother from having to face further scrutiny leading to deportation. It is possible this official documentation listing the age of the “father” as 17 would then exclude Fuentes from investigation, given the mother would have been also protecting him, were it not for the victim positively identifying Fuentes to the police on July 6th.
Dr. Bernard at least partially followed legal requirements
Dr. Bernard has understandably sought legal council and they have made public responses with regard to the Indiana Attorney General making public statements stating she may have not followed the law. A letter from the Attorney General of Indiana, Todd Rokita, to the Governor states
Dr. Bernard’s legal team sent the AG a cease and desist letter and made claimed she followed all requirements [emphasis mine]
Shortly after his statement was made public, Bernard's attorney provided Scrrips station WRTV with the legal documents showing that she had properly reported the abortion within the legally required time frame.
There is a very nuanced point here that I am not able to resolve at the moment. I have the documentation sent to the state reporting the abortion. I do not have, and the lawyers have not stated that I can see, and nobody that I know of seems to have, any documentation she reported anything to the Indiana Department of Child Services for suspected child abuse.
I do not know, with the victim being out of state, if the Attorney General is correct that this would be legally required, or if the declaration the “father” was 17 has any impact on that requirement. These are still large questions that we’ll have to wait to resolve.
The next hearing for Fuentes is July 22nd. I would expect the defense to try to have the confession thrown out, given their client does not speak English and therefore may not have been fully aware of his rights such that the confession is not admissible. DNA results have not yet been made public, and we’ll eventually find out what they yield.