The 'rape clause' - understandable opposition

4 Aug 2017 Ryan Miller    Last updated: 4 Aug 2017

Welfare Reform comes to NI next month. Opposition to the two-child limit on tax credits in general - and the 'rape clause' in particular - has grown more voluble. Scope looks at women's groups' objections.

The end of summer brings with it Welfare Reform.

In September sweeping changes will be made to the social security system locally, starting in the Limavady area and then rolling out across Northern Ireland.

These changes have been legislated for in incremental fashion. One of the stated objectives was simplification but the route to get there has itself been complicated.

And the replacement of disability allowances, jobseeker support, and so on – including child tax credits – with Universal Credit.

Universal Credit has thrown up myriad controversies. The latest one to get a public hearing in NI regards child tax credits. This has received some publicity but the more you delve into it, and particularly the “rape clause” exemption from the two-child limit on qualification for child tax credits, the worse it looks. So, let’s look.

The two-child limit is this: only the first two children (born after April 6, 2017) will be eligible for child tax credits, and for any subsequent children parents/guardians will only be able to claim tax credits for children under certain, exceptional circumstances.

Among these circumstances is where a woman can “prove” to a third-party assessor that her third (or subsequent) child has been conceived as a result of a non-consensual act.

This has been met with stern opposition, on two fronts. The Women’s Policy Group Northern Ireland is comprised of several organisations concerned with women’s issues and women’s rights, including the Women’s Resource and Development Agency, Women’s Aid, and the Committee on the Administration of Justice.

The policy group is opposed to the two-cap limit fundamentally. Outwith of this objection, it is also opposed to the exemption in the case of rape.

Often the most callous parts of public policy and service occur when lawmakers put all their focus on those who might manipulate systems and so forget about those primary purpose of those systems, and the people they are constructed to serve legitimately.

And so it is with the ‘rape clause’. Seemingly aghast at the idea that some people might make false claims, the needs of victims of the most serious sexual assaults are apparently on the backburner.

This echoes social security changes in the UK generally over this decade. Sometimes this has even been explicit, such as when these reforms were continually framed as an “incentive to work”.

‘Rape Clause’

Of course, any effective policy has to be balanced properly and feasibly.

However, in this case the government sees that balance as requiring to “prove” that they have been the victim of rape in order for their 3rd (or subsequent) child will be exempt from the two-child ceiling for tax credits. This leads to many problems for victims:

  • Many take years before they are ready to open up about rape; some never do. For this, they now face financial penalty.
  • Women’s groups have been quick to highlight that accusations of rape are often treated with incredulity. Any culture of disbelief will be exacerbated by these tax credit changes – which, of course, only adds to the pain of the situation. It won’t be long before part of the defence in a criminal trial for rape will be that the alleged victim wants a benefits premium.
  • The clause’s requirement that a woman no longer lives with the perpetrator immediately discounts much of the sexual violence that occurs within domestic relationships and the extremely complicated and difficult circumstances that surround these scenarios. It should also be noted that women may be prevented from using contraception or placed in a recurring pattern of acquiescing to sex in order to prevent or de-escalate violence.
  • Northern Ireland also has an extremely limited level of access to abortion that does not cover these situations. Travelling to England to obtain a legal abortion can be very costly. The people who are most in need of child tax credits are those least likely to be able to afford a trip like this.
  • In general, disclosing that a partner has raped you – and having to leave that abuser – could place some women in danger. Indeed, the most perilous time for a woman is when she attempts to leave an abusive relationship.
  • Because in Northern Ireland, unlike the rest of the UK, it is a crime not to report a serious offence if you hear about it, all of this becomes more pressurised. Indeed, fears have been raised not just around the victims themselves, but that even people assisting with their claims could be liable to prosecution if they do not go to the police (regardless of whether that is the women’s wish).

This policy cannot be seen to be balanced properly and feasibly because the women it is supposed to protect are liable to be dragged through the mire.

It has been constructed in a way that makes no real consideration for victims of rape, other than in a token sense, and seems fixated on the idea that someone, somewhere, sometime might make a false claim.

This is supposed to be a positive exemption but it is devoid of any and all sympathy. As such, it does not fulfil its basic purpose – and that is notwithstanding any discussions about the value of this purpose, and the two-child limit more generally.

Other issues

The Women’s Policy Group is opposed to the two-child tax credit cap for a number of reasons.

They raise a number of valid arguments including that women are not always in control of their own reproductive destiny and further that removal of these child tax credits will leave some women stranded, and unable to break away from terrible relationships.

The groups also says this legislation goes against the grain of several aspects of existing human rights and equality laws (such as the absence of any Section 75 screening of this policy). This is unsurprising given that those laws were drawn up to protect against circumstances just like this.

Again, this is unsurprising. As per the above, lawmakers’ obsession over individuals who might cheat the system for financial gain can undermine the primary purpose of social security.

Some women in the most difficult circumstances will suffer because of these changes. That is dreadful, but it is also worth observing that women are not the primary consideration of the child tax credits scheme - children are.

No-one likes the idea that someone would have children simply as some form of income generation. But child tax credits are supposed to support children and the two-child cap will, quite obviously, remove support from some of the most needy. Women’s Aid estimates that 200,000 more kids could fall below the poverty line.

As with everything else in Northern Ireland right now, there is also the question of accountability and competence.

Universal Credit has not had a smooth roll out elsewhere in the UK. At first glance, this should mean a smoother transition in Northern Ireland. But there are reasons why this might not be the case.

Firstly, and as discussed in part above, NI does not have all the same laws as Great Britain so welfare reform might work in a different way.

Secondly, the Department for Communities – which is responsible for the administration of welfare changes – has not had to deal with Universal Credit before. Teething problems, at the very least, would not be a shock.

So, if the execution is shambolic there is no minister in place to claim ultimate responsibility.

This all begins next month. It is difficult to see a soft landing for Universal Credit.

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