In the last few years, the UK has been relentlessly pursuing austerity measures and drastically reducing welfare expenditure. Today, as part of this trend, the government has restricted access to child benefits. Families who have a third child after April 6 2017 will not receive child benefits (in the form of tax credits) for that child. This will have a devastating financial impact on families. The Institute for Fiscal Studies calculates that over half a million families will, on average, be £2,500 worse off. The one exception to this two-child limit is for victims of sexual violence. If a woman can prove that the third child is the result of sexual violence, she can claim child benefits for that third child. In the media this has been termed the “rape clause.” 

The restrictions on child benefits and the “rape clause” are deeply problematic and perpetuate dangerous stereotypes about victims of sexual violence. This blog posts touches upon a few of the issues raised by the rape clause. First, the law is categorizing women as deserving or undeserving of support from the state. Only women who are victims of sexual violence are deemed worthy of receiving child benefits for all of their children. The law is also sending a message: women should restrict the number of children they have. This flies in the face of gender equality and international human rights law. The Convention on the Elimination of All Forms of Discrimination Against Women, which the UK has signed and ratified, specifically recognizes the rights of women to freely decide on the number and spacing of their children (article 16(1)(e)).

Second, proving that the third child is the product of sexual assault is deeply intrusive. Private and very intimate health care information would need to be shared with the government officials to successfully make a claim for benefits for a third child. This can be very humiliating and shows a complete disregard to the privacy of women. It can also be potentially re-traumatizing to recount the experience of sexual violence to another professional third party and victims must live through a period of financial and emotional uncertainty while their claim is being processed.

Third, the law raises questions on proving a child is a result of rape. The government has provided minimal assurances that claims will be handled with sensitivity. It has provided not provided information on the standard of proof that these claims will be evaluated on. Sexual assault does not always result in bruises or physical evidence of an attack. The worry is that in requiring proof of sexual assault to access child benefits, the law will only recognize the ideal victim, the one who fights back. History has shown that stereotypes on consent are deeply ingrained. The government has publically done very little to address the real risk that claims for child benefits will fail because the law does not recognize the complex and varied responses women have to sexual violence.

Fourth, criminal conviction rates for sexual assault are notoriously low. In part, this is due to the structural biases in the criminal justice system. The evidence in Canada shows that even when the law is reformed to address gender stereotypes, lawyers and judges are willing to give weight to dangerous myths on consent and reactions to sexual violence. Hypothetically defendants in the UK, in certain cases, can now refute allegations of sexual violence arguing that the victim is only claiming sexual violence in an attempt to access child benefits. All branches of the law should be working in concert to improve obtaining criminal convictions for sexual violence, not providing tools that can be exploited.

The law in now in place and the question becomes: what to do next? Social media and political pressure needs to be kept up so Parliament repeals these pernicious provisions. There is also the possibility of tapping into international forums, such as the individual communications procedure under the Optional Protocol to CEDAW, which could shine the international spotlight on this issue. In the interim, it can only be hoped that government officials who are considering these claims do so with the utmost sensitivity and recognize the dignity and equality of women.