08-05-2025
- Politics
- The Herald Scotland
The so-called rape clause is unworkable — here's the proof
The evidence is in: the so-called rape clause is unworkable.
The professionals tasked with approving the 'non-consensual conception' exemption to the two-child benefit cap lack the training, clarity and confidence required, leaving survivors to navigate a traumatising and inconsistent system with little support.
That is the conclusion of a forensic study of the UK Government's two-child cap, carried out by Dr Rebecca Hewer at the University of Edinburgh.
The stark findings will make uncomfortable reading for Labour, which is due to publish its child poverty strategy in the coming weeks.
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Reports suggest that while the party will commit to additional financial support for some of the poorest parents, there will be no rollback of the benefit cap introduced by then Tory chancellor George Osborne in his 2015 Budget.
The policy, which came into effect in 2017, prevents households claiming child tax credit or universal credit from receiving support for a third or subsequent child born after 6 April that year.
The so-called rape clause is the exemption for families in which the third child was conceived non-consensually.
To claim that exemption, mothers must demonstrate eligibility by securing certification from approved third-party professionals such as health and social care practitioners.
However, interviews conducted by Dr Hewer revealed that many of the professionals tasked with implementing the policy have not received training, do not know the rules, and in some cases are unaware that they are on the list of approved third parties.
Women—often traumatised, vulnerable and living in poverty—are left to navigate a Kafkaesque system riddled with obstacles. In many cases, they are expected to make multiple sensitive disclosures to non-clinical staff.
A core issue identified is the UK Government's failure to provide a clear standard or definition of 'non-consensual conception'.
The regulations state that a child qualifies if conceived as a result of 'sexual intercourse to which [the claimant] did not agree by choice, or did not have the freedom and capacity to agree by choice'.
But what does 'sexual intercourse to which a claimant did not agree by choice' actually mean?
Take, for instance, the removal of a condom without consent—commonly referred to as stealthing. Legally, it is classified as rape. Yet one GP told Dr Hewer: 'I would not say so.'
The report also raises concerns over cases involving impersonation, an area of law described as complex and poorly understood by practitioners.
The lack of clarity risks errors that could 'undermine a survivor's ability to access a rape clause exception'.
It also notes that disclosing sexual violence to statutory practitioners may trigger safeguarding concerns, potentially leading to invasive questions and unwanted investigations or interventions—another factor likely to deter women from making a claim.
While the number of households currently claiming the exemption is not large—around 200 in Scotland—the figure is expected to grow as more and more families become affected by the two-child limit.
The report concludes that the rape clause is unworkable and calls for its urgent repeal.
If repeal is delayed, interim recommendations include a move to a self-certification model for survivors, expanding the number and type of approved third parties, and significantly improving awareness, guidance and training for professionals and claimants alike.
Ultimately, however, the research finds that there is no fair or decent way to implement the rape clause.
As long as the two-child cap remains in place, it argues, there will continue to be an unjustifiable intrusion into the lives of vulnerable women and children.
