Can Idaho rape or incest survivors really get an abortion? Why they may face challenges

In a few rare instances, Idaho allows patients to pursue abortions and override the state’s ban on the procedure, one of the most restrictive in the country. Those exceptions include reported cases of rape and incest.

But one major barrier could make that a difficult, if not impossible, reality for survivors: denial of their own police reports.

Inquiries from the Idaho Statesman revealed that police agencies across the Treasure Valley have yet to create policies that guarantee survivors with access to their police reports within three days, a requirement of a state law passed last year. Several agencies couldn’t point to specific procedures for how they would handle such requests. And at least one local police department denied survivors copies of their own reports, raising questions about how the rape and incest exception would work if a survivor were to pursue an abortion in Idaho.

Troy Hale, an investigator with the city of Nampa’s Office of Professional Standards, told the Statesman by email that the Nampa Police Department’s procedure was “not to release reports that are part of an active investigation.” Since January 2023, the agency denied the release of a police report to someone who reported rape or incest four times. Hale said the agency discovered this fact while filling a Statesman records request for protocols to comply with the new law and police report denials to survivors.

Nampa police’s records division will institute procedures to release rape and incest reports within three days as a result of the Statesman’s inquiry, he added.

“This was an oversight on our part,” Hale said.

Ada, Canyon County don’t have abortion exception protocols

Sexual assault cases are closed at a lower rate than many other crimes. That means survivors could potentially be denied a report for a long time if agencies base their records fulfillment on whether there’s an active investigation. Idaho’s public records law allows police to deny the release of records in an open investigation.

Idaho’s abortion ban exception instructs law enforcement to make reports available quickly, but it’s not a certainty. A request for a report could still be denied if it cannot be “redacted as necessary to avoid interference with an investigation,” according to the law.

It’s also unclear what criteria different agencies use to consider a case cleared. Hale, the Nampa investigator, said cases are typically closed when there’s an arrest in the case, the prosecutor declines to take the case to court, or the survivor no longer wishes to pursue an investigation. Boise Police Department spokesperson Haley Williams said the status of a case doesn’t impact survivors’ access to records.

The Ada County Sheriff’s Office did not respond to questions about their criteria for closing rape and incest cases.

Ada and Canyon counties investigate the most rape cases in the state. Despite that, law enforcement agencies in those counties, in response to Statesman public records requests, said they don’t have specific policies in place to ensure survivors can receive a copy of their police report within 72 hours of reporting.

The Boise Police Department’s records division directed the Statesman to the department’s policy manual, which does not address how to handle survivors’ records requests. Records officials said the department also complies with Idaho public records law when distributing sexual assault reports.

Officials said Boise police don’t track records request responses “based upon a requester’s involvement,” so they don’t know how the agency responded to people asking for copies of their own reports.

Alisa Gulley, records supervisor for the Caldwell Police Department, told the Statesman in an email that the department released one redacted report to a rape or incest survivor since January 2023 and has fulfilled all requests. But Gulley said the department lacks documented policies or procedures for complying with the 72-hour report requirement.

Lauren Montague, spokesperson for the Ada County Sheriff’s Office, told the Statesman in an email that the agency abides by the state law, which supersedes its policies. Montague said agency officials “are well aware of this law, and if a victim were ever to need the report, one of them would go to our in-house legal team and get it taken care of quickly.”

Montague said since January 2023, the agency has only received one request from a survivor for a copy of their report.

“We turned it around well before the 72-hour mark,” Montague said.

No standards for rape exceptions in abortion laws

In communities across the state, law enforcement sometimes create a network with survivor advocates, prosecutor’s offices and hospitals to form sexual assault response teams, which ensure consistency and sensitivity as experts help survivors through the reporting process.

Deb Wetherelt, an Idaho State Police coordinator for sexual assault response teams around the state, told the Statesman in a phone interview that different stakeholders lead local efforts, which include meetings to discuss best practices and needs.

The Canyon County sexual assault response team is led by the Nampa Family Justice Center, a nonprofit advocacy center that helps survivors of abuse. Ada County does not have a formalized team, Wetherelt said, but survivors may have better access to hospital resources and advocates because it’s an urban area.

Wetherelt said the Idaho State Police Laboratory, which processes DNA tests for all crimes in the state, can take months to process rape testing kits if other tests are deemed a priority. She said if police are pursuing an arrest in a rape case, the lab can prioritize processing a rape kit “very quickly.”

According to the 2023 Crime in Idaho report published earlier this month by Idaho State Police, the number of reported rapes in Idaho fell 11% from the previous year. Incest reports dropped by half, from 18 to nine.

Nearly half of the total reported rapes last year occurred in Ada and Canyon counties. Of 281 reported cases in the two counties, one-third of them were cleared. Police arrested a total of 18 people.

Lisa Bostaph, a Boise State University professor of criminal justice who focuses on sexual assault and intimate partner violence, told the Statesman those numbers are likely skewed since rape is one of the most underreported crimes.

Bostaph said she’s not surprised that Idaho’s rape and incest reports haven’t increased since the state abortion ban took effect. She said victims likely prioritize getting an abortion in a neighboring state. Reports have shown significant increases in Idaho patients getting abortions in Montana and Washington since 2022.

Bostaph said she’s beginning research on officer attitudes toward rape abortion exceptions, as well as researching how policing agencies are handling sexual assault reports as exceptions to abortion bans.

“To my knowledge, there have been no created standards anywhere in the country for how this should play out,” Bostaph said.

Sen. Todd Lakey, R-Nampa, and Rep. Megan Blanksma, R-Hammett, sponsored the original ban bill and last year’s amendment to guarantee survivors access their police reports within 72 hours. Neither responded to requests for comment on how they envisioned the exception playing out when rape or incest survivors are seeking an abortion.

Blanksma told news outlets at the time that the amendment and other alterations to existing abortion law were “a step in the right direction.”

Abortion exception protocol for hospitals unclear

The law itself doesn’t spell out a process for survivors to prove, or hospitals to confirm, that an abortion is legal.

It’s also unclear how many Idaho sex crimes may have resulted in pregnancy. There’s little research on the subject, but a 1996 article published in the American Journal of Obstetrics and Gynecology estimated the number at around 5%.

Bostaph said pregnancy may make survivors even less likely to report rape.

“Reporting requires them to interact with the criminal justice system that isn’t always supportive of them, and it also means that there’s a potential for your case to become public,” Bostaph said. “You can imagine I may choose to do whatever I can to go and obtain an abortion outside of Idaho, rather than going to the police.”

Bostaph noted that the declining number of OBGYNs in Idaho, and doctors’ concerns about whether the procedure is legal, could make it harder to find a doctor willing to perform an abortion. Physicians face prison time and loss of their medical license if they’re convicted of performing an illegal abortion.

St. Luke’s Health System, which is Idaho’s largest health care organization and has pushed for exceptions to protect pregnant patients’ health, “would provide the necessary care within the bounds of the law” if patients meet the requirements of the rape and incest exception, spokesperson Christine Myron told the Statesman.

Patient and police privacy laws make it difficult to know if anyone has successfully had an abortion — or even tried to have one — under the exceptions since they took effect last July. Myron did not respond to questions about the health system’s procedures for assessing rape and incest abortion cases or whether its hospitals have treated any patients under the exception.

Bostaph said the entire process is shrouded in confusion.

“I don’t mean this to be crass, but is every single woman who reports a rape getting something that says, ‘I have reported a rape,’ so that if they find out they’re pregnant 60 days later, they can go in and get an abortion?” she said “How is this happening? That’s what nobody knows.”