Another week, another opportunity for me to be enraged about something. You may have seen Nicola Sturgeon, leader of the SNP and Ruth Davidson, leader of the Scottish Tories being furious with each other over what has become known as The Rape Clause. Ms Sturgeon wants it scrapped and Ms Davidson thinks it is a good idea and has been misunderstood. Twitter has had the hashtag #scraptherapeclause doing the rounds.
As a woman, mother and solicitor, I thought that I probably ought to know more about this so I looked it up. Less-than-gorgeous George announced the government’s intention to introduce the Welfare Reform and Work Act in the 2015 Budget and it came into effect on 6 April 2017. An Act that the government claims is “incentivising work”. Previously the Child Tax Credit may have been claimed by families for children under sixteen or up to aged twenty if they are in eligible training. This is being phased out and replaced by the Universal Credit. There is a Child Element to the Universal Credit, which is now limited to a claim for two children subject to certain exceptions. I knew about the two children, I didn’t know the specifics of the exceptions and in particular the rape exception. You didn’t either? Well that might be because the government’s response to concerns over the rape exception that had been raised were published on 20 January 2017, which was the day that President Fart was inaugurated. From what I can gather, essentially the government’s response was “very interesting, we’re doing it anyway” and the legislation was quietly amended without parliamentary debate. Nothing like a good day to bury bad news.
A woman may claim the Child Element for a third or subsequent child if the child concerned was conceived “as a result of a sexual act which you didn’t or couldn’t consent to” or “at a time when you were in an abusive relationship under ongoing control or coercion by the other parent of the child.” A woman cannot claim if she lives with the co-parent. But she can “qualify” if there has been a court case or a criminal conviction. The woman concerned should send a form to the DWP that she may complete with the help of “an approved third party professional”, but no one seems to know who that is, or has trained anyone at the DWP. That is probably because there are no figures for how many women will be affected by this exception and no one knows just how many children are conceived as a result of rape, a lack of a statistic that tells its own story.
A government spokesperson has been quoted as saying that the exceptions were “consulted on widely.” Given the concerns voiced by many charities and people who work with abused women and their children, I am wondering who was consulted “widely” because it appears not to have been anyone who might have been able to assist. The Equality and Human Rights Commission has described the legislation as “regressive.” Rachel Krys, co-director of the End Violence Against Woman Coalition has said “this whole policy betrays a lack of understanding about domestic and sexual abuse.” The DWP and HMRC have justified their stance by saying that the handling of the exceptions is “sensitive” but “it is important to have an exception in place to support claimants in these circumstances.” The Child Element of the Universal Credit, which could be worth up to £7,000 per annum for a disabled child, so, yes, I can see why that money could be vital for some women. It has been clarified that neither DWP nor HMRC staff will question the claimant about the incident other than to take the claim and receive the supporting evidence from the third party professional. “We propose that the assurance required from third party professionals be based solely on evidence that the claimant has made contact with the third party and demonstrated that their circumstances are consistent with those of a person whose child has been conceived as a result of non-consensual sex.”
First, this exhibits a fundamental misunderstanding of abusive relationships and their ongoing damage. The rights and wrongs of rape cases and trials is an entire other issue that I cannot tackle here. However, research has repeatedly shown that rape victims do not report the crime because they feel that they will not be believed and rape is notoriously difficult to prove in court. Some women would never talk about it. If they have managed to get away from such a partner, it is probably all and everything that they have done to survive and go on. Those women who may feel able to talk about it, I strongly suspect don’t want to relive it in the re-telling. And the notion that they would be coaxed into doing so to a “third party professional” to get some additional money that they are entitled to and most likely desperately need is so appalling that I don’t even know where to begin; they just wouldn’t. Particularly if it meant that there was a possibility that their child would find out, or at least wonder at some point between their birth and the age of twenty why their mother gets some extra money for them, when their friend’s mother does not. I suspect that most women would rather starve than risk that damage to their child.
Secondly, what about the men involved in this? They could be named on a piece of paper and that piece of paper is sent to the DWP, processed and the exception is granted, essentially because “a third party professional” is satisfied that their former partner was raped by them. And even if they are not named, but are on the child’s birth certificate as their father, or known as the child’s father, assumptions, founded or not, can and will inevitably be made. People find things out. People talk. As I mention above, there are a number of issues with rape cases being brought to trial that are for another piece on another day. However, rape is a serious crime and it should be treated as such. It is wholly unjust that men could be labelled in this way. Everyone has a right to a fair trial, and this side-steps the entire criminal justice system.
Thirdly, I should like to bring up the child. Section 1(1) of the Children Act 1989 is unequivocal that in all of their dealings with children “the child’s welfare should be the Court’s paramount consideration.” Now the government have side-stepped the courts with this legislation and dumped it on the “third party professionals” to decide what constitutes rape. However, should not the child’s welfare be the paramount consideration to all of us full stop? In what world does the government think that a child being a risk of discovering that they were conceived as a result of non-consensual sex makes their welfare paramount?
Finally, “third party professionals” are to be the gatekeepers of the exception. This is not just a financial transaction. It is not a tick box and then the money goes into your account each month. The third party professional will need to be persuaded that the woman is telling the truth in order to tell the DWP that the claim can be processed – look at the language I have quoted above. Women need to “demonstrate” in order to “qualify” – the implication that there is a standard to be reached by providing evidence of some sort. This is asking a woman, a survivor, to come forward and say to a stranger that she was raped and that the child whom she adores was conceived as a result of that rape, and that stranger will need to be persuaded that that is the case in order to release the cash. That woman will then live everyday at risk of that child finding that out because she needed some money to survive. Now that child may already know, or their mother may plan to tell them, but that is not for the government to decide, or risk, if the child’s welfare is truly paramount. That child could have their entire world shattered by happening upon a bank statement or the realisation from a conversation with a friend. Essentially men are to be labelled rapists without the accusation being put to them and without being given any opportunity, as is their fundamental legal right, to a defence. And “third party professionals” are being asked to make that call. That is a burden that would keep me awake at night, and it is not one that I could bear.
I would like to be able to give the government the benefit of the doubt on this and to try and believe that their intentions were honourable, even if the outcome is an utter disgrace. If Ms Davidson is right and it is misunderstood then I should like her to explain it to me so I can grasp what it is she thinks that I and everyone else have missed. As it stands, there seems to be a potentially devastating effect on parents and children to be brought about by this monstrously ill-thought out legislation, and an indeterminate amount of money saved. In short, government, you have fucked up. Big time. And not for the first time. Go away and have a re-think. And when you have had your re-think, ask the people who know about the subject matter and who are likely to disagree with you for their input. Then have another think. Finally, at the end of that process you will then stand a cat in hell’s chance of having some legislation that is worth the paper it is written on.
Natalie Gist 