Solicitor questions recent fury over so-called ‘rape clause’ in reformed child tax credit legislation

The author of this article is a solicitor in private practice and due to the nature of this topic has chosen to remain anonymous. Any thoughts, views or opinions expressed in this article belong solely to the author.

The phrase “so-called” is used to describe something that is purported to be something that it is not. One such example is the so-called “rape clause” which relates to the UK government’s reforms to child tax credit legislation. Let us be crystal clear: there is no “rape clause” as such. It’s just a phrase that has been successfully concocted up by some politicians and interest groups to generate some sort of anger, uproar and fury within certain people who are unhappy with the recent changes to the child tax credit system.

Put simply, what we have is only a clause within legislation – effecting some change to the current system – which has unfortunately been dubbed as the so-called “rape clause” perhaps for reasons mentioned above.

Just before the Easter weekend, own Scottish parliamentarians were exchanging diatribes with one another about it with our own First Minister Nicola Sturgeon going so far as to call it “disgusting”. Let’s just take a step back from the hyperbolic invectives being thrown around about this so-called “rape clause” and try to have a bit of perspective here.

The UK government has changed the child tax credit system so that, as a general rule, a claim can only be made for up to two children. That seems like a reasonable enough change.

Quite understandably, some folk will be less than pleased at losing out on claiming taxpayer money to financially help towards supporting their additional children, but hey ho, that’s just the way it goes sometimes when the government is trying to reduce its benefit burden. Perhaps we should be grateful that we do have a government which extends a financial benefit to eligible families and offers support for up to two children instead of complaining it’s not enough – but that’s a conversation for another day.

So, as a general rule a claim can be made for up to two children. Reasonable enough. Understandably, the new changes account for exceptions to this general rule – that seems entirely reasonable too. One such exception – of perhaps the many exceptions which might exist – would be for mothers who have a third (or more) child who is conceived as a result of a rape. Ergo, this now results in it being dubbed the “rape clause” and what follows is a bandwagon of some politicians and interest groups up in arms about it – quite literally taking to the streets with rallying cries – and hurling hyperboles and attention-grabbing buzzwords such as “barbaric”, “vile” and “anti-women”.

Hold on just a second, did we not just establish the very basic and simple fact that a woman can –  without any shadow of a doubt –  claim taxpayer money for a third (or more) child conceived as a result of a rape? What exactly is so dreadful, barbaric, vile or anti-woman about that? I guess it has become a fashionable trend to jump on the hyperbole train when it comes to anything which might be perceived as infringing on a woman’s gender-specific rights and entitlements. Heaven forbid.

A child conceived as a result of a rape would certainly be a very exceptional circumstance. After all, rapes aren’t the norm, are they? Children aren’t usually conceived as a result of rapes, are they? Of course not and it would be wrong to try and associate it with anything other than an exceptional circumstance.

Fundamentally and reassuringly, the child tax credit will be available to claim in that exceptional situation and we ought not to detract from that most basic fact no matter what overly-exaggerated language is used to undermine it.

So what exactly is all the fuss about?

Well, it’s because if a woman is going to claim for child tax credit for an additional child which is (in an unlikely event) conceived as a result of rape then she has to disclose that exceptional circumstance in the section of the form which deals with exceptional circumstances and it runs to several pages. That’s what the fuss is really about. Having to disclose that exceptional circumstance under the exceptional circumstances section in the claim form. Doesn’t that seem reasonable enough to you? Nicola Sturgeon calls it “disgusting” and there are many others keen to launch into a barrage of criticism about it – I wonder what exactly they would be proposing in the alternative?

It would seem that what they want in the alternative is for women to be given an automatic entitlement to child tax credit and taxpayer money – without form filling or having to disclose an exceptional circumstance – when she claims that a child was conceived as a result of a rape. In other words, once a woman mentions and claims rape, she should automatically be entitled and get the taxpayer money without any checks in place at all.

We should be under no illusions – that is exactly what they seem to be suggesting in the alternative.

Those who are expressing fervent fury over the so-called “rape clause” would in the alternative, inadvertently be looking to implement a system which would inevitably (and perhaps unintentionally) incentivise claiming rape resulting in a child – because it would secure an automatic entitlement to guaranteed taxpayer money.

In the absence of being required to declare and disclose an exceptional circumstance – such as having a child as a result of a rape – and providing relevant details in the claim form, there would be absolutely nothing in place to prevent a false or fraudulent claim of rape if all a woman had to do was tick a box to state that she had a child as a result of a rape.

We’ve all heard that old pastime story about the boy who cried wolf – you know, the one about the boy who cried out “wolf!” in a seemingly real attempt to round up people to come to his aid only for them to hurry to his side and find out there was no wolf and that he had lied – made it up, fooled them and created a falsehood for his own personal gain and gratification. Gender is irrelevant when it comes to telling a lie for personal gain and we should not dismiss the very real fact that the parable of this pastime story could just as easily apply in the context of a woman claiming rape in furtherance of financial gain.

If the so-called “rape clause” was not firmly in place, any woman could quite literally claim that a child was the result of a rape and then automatically receive a guaranteed entitlement to taxpayer money.

If the so-called “rape clause” was not firmly in place, it would certainly not be inconceivable for a woman to have a third child (or more) with her husband or partner and then at a later time allege that he raped her – just to secure an automatic and guaranteed entitlement to taxpayer money. That is a very real possibility.

I should think that Nicola Sturgeon et al would find any of those scenarios “disgusting” but there does not appear to be a single word to be said about those possible scenarios.

What we seem to have is a case of Nicola Sturgeon and others feeling misplaced disgust and inadvertently calling for alternative measures in which a woman can potentially falsely claim rape and be financially rewarded for it. That is something we ought to be really disgusted about. That is something we ought to stand firmly against and raise appropriate awareness to prevent such a reality from ever becoming a possibility in our society.

There must be appropriate checks and balances in place which provide robust and adequate protection against false or fraudulent claims. Most importantly, we simply cannot allow for a system which somehow inadvertently ends up financially incentivising a claim of rape – either generally or in respect of claiming taxpayer money.

Sometimes a bit of perspective is needed instead of fiery and fervent hyperbolic fury over proposed measures which – when we really think about it – are entirely reasonable and necessary.

On a final point, I would like to mention that if Nicola Sturgeon and others in the Scottish government feel so strongly against the reform to child tax credit, then they have the devolved power and ability to do away with the two children cap altogether (and she has certainly hinted at doing just that), in which case this whole commotion becomes a total non-issue in Scotland.