Critically Interrogating the ‘Rape Clause’
Rebecca Hewer summarizes her important new report exploring UK health and social care professionals’ thoughts about assessing and certifying eligibility for the two-child limit’s ‘non-consensual conception’ exception, colloquially known as the ‘rape clause’.
Since the moment of its enactment in April 2017, the two-child limit has provoked considerable political controversy. Enacted by the UK’s recently departed Conservative government, this policy restricts the number of children for whom a low-income families can claim a subsistence-level, means-tested benefit, to two. In turn, it alters the conditions under which poor and socially marginalised women make decisions about their reproductive lives – forcing them to choose between future pregnancies and poverty. In recent months this policy has received renewed attention: the incoming Labour government have been encouraged to repeal it, but have (at the time of writing) refused to do so.
Equally controversial, at least in 2017, was the two-child limit’s ‘non-consensual conception’ exception. This exception - colloquially known as the ‘rape clause’ - exempts households from the two-child limit if they can evidence that their third or subsequent child was conceived ‘non-consensually’. In effect, the rape clause forces women to disclose a potentially traumatic sexual experience to the state, and to explicitly identify their infant child as a product of violence, at pain of poverty. Writing to the government prior to the introduction of this exception, the Equality and Human Rights Commission expressed concern about the potential impact of the rape clause, specifically “the potentially traumatic process for having eligibility assessed and the risk of re-traumatisation upon survivors of rape”.
In recent years, the prima facie cruelty of the rape clause has somewhat faded from view, at least insofar as media and public discourses are concerned. Few (if any) vocal rape clause dissenters support the use of the two-child limit and conversations I have had with campaigners indicate anxiety about critiques which could be interpreted as tacit acceptance of the limit per se. If we focus on the specific cruelties of the rape clause, do we risk suggesting that the two-child limit would be morally permissible without it? Second, we know next to nothing about how the rape clause operates. Government data published last year indicates that only 3,100 women were granted a rape clause exception between 2017 and 2024. However, these figures provide little insight into the human interactions and experiences that shape and are shaped by eligibility assessment.
In order to claim a rape clause exception, survivors must provide evidence that their third or subsequent child was born non-consensually. This evidence can take three forms: a criminal conviction, a criminal injuries compensation award, or an ‘NCC1 form’ completed by an ‘approved third party’. Such third parties are given approval at the discretion of the Secretary of State. In practice, this role has been foisted upon health and social care professionals. These professionals are tasked with confirming that a survivor’s report of sexual violence is ‘consistent’ with non-consensual conception – though they have been provided with very little guidance regarding how, precisely, they should ascertain this. How, then, are these professionals going about this process? What questions do they ask? How are they evaluating ‘consistency’ and are they doing so in an equitable manner? These questions have haunted me for some time, not least because the scope for mishandling cases seems significant. If the criminal justice system provides any indication, the UK has a long way to go before it can claim an appropriate level of care and sensitivity towards survivors.
This month, I published a report that addresses these issues. It is based on qualitative interviews with 13 health and social care professionals who hold approved third party status. Frustratingly, due to the low number of rape clause exceptions granted and the comparatively high number of ‘approved third parties’ (who likely number in the hundreds of thousands) it was not possible to identify individuals who had already assessed eligibility for the two-child limit. Instead, I asked a cross-section of approved third parties to draw on their vocational training and practice-based experiences to ‘think through’ how they would assess and certify eligibility, if asked, and if at all.
My findings range from the pedestrian (it can be remarkably difficult to get a timely appointment with a health and social care professional, particularly if you are unwilling to discuss your case with a receptionist) to the somewhat more shocking (not one of the participants I spoke to had been notified that they were an approved third party and most had no sense of what that role entailed).
Perhaps the finding that is most troubling, however, is that many health and social care professionals do not feel qualified to decide whether or not a sexual encounter is ‘consistent’ with non-consensual conception. Nor, arguably, should they. The state has failed to provide a comprehensive definition of non-consensual conception for the purposes of rape clause administration, and health and social care professionals do not work with a common understanding of the same. This is largely because they do not need to. Rather, their job is to treat distress and injury when it is reported to them, and to secure emotional and physical safety in the here and now.
In this vein, the majority of health and social care professionals anticipated adopting a victim centred approach if they were asked to assess eligibility for the rape clause. This positions survivors of sexual violence as the experts in the meaning and significance of their own experience. As one participant said:
“If they’re asking me to fill the form in… they meet the criteria for the form to be completed”
This finding is positive, suggesting that survivors who seek support to claim the rape clause may well be believed, valued, and empowered vis-à-vis their benefit entitlement. It does, however, call into question the necessity of a third-party evidence model. Health and social care professionals are credentialing disclosures, not verifying them. The fact that rape clause eligible survivors cannot self-certify therefore reflects their (gendered and classed) social status.
There were, however, a handful of participants who could anticipate feeling pushed into a corner if asked to complete an official state document certifying the ‘consistency’ of a sexual encounter with non-consensual conception. In these situations, participants tried their best to draw a line between the non-consensual and not, but felt trepidation when doing so. This trepidation was arguably warranted, insofar as some professionals mobilised contested understandings of sexual violence, that contradicted the law, and even drew on common ‘rape myths.’ That this could undermine the fair and equitable administration of the rape clause, whilst causing significant distress to survivors, is clear.
Ultimately, my report raises serious questions about the practicability, workability, and ethical permissibility of the rape clause. It indicates that the non-consensual conception exception has been poorly designed and rolled out, and that the scope for harm is significant. There is little doubt that we should repeal the two-child limit: it is a major determinant in child poverty rates, it stratifies reproductive opportunities, and mitigating its worst excesses seems to necessitate an unacceptable level of scrutiny into the sexual and reproductive lives of marginalised women. What my research adds, then, is a greater understanding of the multiplicity of harms visited upon low-income families by regressive welfare reform, and the very significant reservations we should have about making access to any life necessary service (including abortion) contingent on a ‘rape clause’.
Rebecca Hewer is a Lecturer and Chancellor’s Fellow in the School of Social and Political Science, the University of Edinburgh. Her work sits at the intersection of gender and sexuality studies, socio-legal studies, and critical epistemologies. Her current research explores welfare reform as a form of sexual and reproductive governance, as well as feminist utopias.