Already plunged back into the old sexist bargain – depend on a partner or watch your children suffer – the women of Britain now face another appalling prospect. They face having to beg a jobcentre adviser for the money to raise their rapists’ children.
– Laurie Penny, The Tory rape exception for tax credits is worse than you thought
The political right imagines that the intercourse that precedes conception is usually voluntary, only to urge abstinence, as if sex were up to women.
– Catharine Mackinnon, Toward a Feminist Theory of the State
.… A man hears what he wants to hear and disregards the rest.
– Simon and Garfunkel, The Boxer
The supreme irony of Michael Philpott’s long career as a violent misogynist was that it was finally ended by a woman judge. On 11th May 2012, Philpott had killed six of his children in a fire set deliberately, in order to pin the blame on Lisa Willis – the woman who dared walk out on his ménage à trois.
Sentencing Philpott, Mrs Justice Thirlwall set out to examine his history of domestic abuse: “Women were your chattels, there to look after you and your children … You bark orders and they obey … You were king-pin, no one else mattered.” Of the child victims, she said: “I am quite satisfied that for you the principal purpose of your many children is to reflect on you. Their needs, desires and aspirations were very low on your list of priorities, if indeed they featured at all.” Of Philpott’s relationship with the welfare state, the judge said nothing.
Yet Philpott was not only a convicted child killer with previous convictions for the attempted murder of a girlfriend. The Daily Mail revealed that he was also a second generation Irish migrant from a family of seven – resurrecting an old racism – whilst George Osborne opined that something must be done about large families and tax credits. A bullshit-baffles-brains calculation of what Philpott, his wife and former partner could have been claiming was hastily put together. Channel 4 News stated that Working Tax Credit (in fact this would include Child Tax Credit) would have amounted to £20,560 annually for the Philpotts, plus £17,870 for Willis; Housing Benefit for the rent on their Derby home would have been £150 a week. To point out that the women’s earned income and the presence of Willis, a non-dependant, in the household would have reduced these maxima significantly is to get in the way of the narrative. In the words of Owen Jones: “The death of these six kids is being used to justify an assault against the welfare state.”
And, in 2015’s summer budget, something was done about tax credits. Osborne announced that, for births after April 2017, Child Tax Credit would be limited to the first two children. However, anticipating the truism that “hard cases make bad law”, there would be an exception in cases of rape. Let’s unpick that one. If we posit that, out of the statistically few rape convictions in any given year – 2,300 in 2014 – a vanishingly small number of cases involve women with two children already who conceive as a result and carry that pregnancy to term, it’s a minor concession. If, however, we assume – a reasonable assumption, given what is known about rape within marriage – that at least some of Philpott’s many children were conceived in a non-consensual context, and that this is probably true of a good number of violent or coercive relationships … then we have a major issue. We have some benefit claims where the male partner is the perpetrator of a criminal act giving rise to an entitlement that is jointly his.
Dependency and the system
The present day social security system can be divided around two axes: means-tested and non-means tested, contributory and non-contributory benefits. For the main earnings replacement benefits, Jobseeker’s Allowance and Employment and Support Allowance, the “first contribution condition” requires recent work history (self-employment does not count for JSA). Each of these has a corresponding means-tested, or “income-related”, version; here entitlement is excluded by a partner having earnings in excess of that benefit plus a small “disregard” – poverty plus a pound – or working over 24 hours a week, for however little.
The paradigmatic means test was the 1795 Speenhamland system of poor relief, providing (for example, and adjusted in line with the price of bread) 3 shillings for a man, plus one and sixpence for his wife and for each child. This “bread scale” was much criticised by, amongst others, the parson and demographer Thomas Malthus, who believed that providing for the poor encouraged them to marry young and breed. A modern example is the pre-2003 Income Support/ JSA calculation: the needs of a family are equated to a “personal allowance” amount for a lone parent or couple, a “family premium” amount, and an amount for each child. (Further premiums apply for disabilities, one partner over pension age, or a carer for a disabled person.) These subsistence requirements are then compared with the income and capital resources of the claimant and partner.
Introduced in 2003, Child Tax Credit replaced the family and child amounts, raising the point at which they began to reduce far above the low level of this personal allowance. For 2015/16 this income threshold is £16,105 per annum (if Osborne forces his cuts through the Lords this will be £12,125 in 2016/17). At the same time, Working Tax Credit became the latest in a succession of top-ups from Family Income Supplement, through Family Credit and Working Families’ Tax Credit: the need to supplement low pay is nothing new. Working Tax Credit tapers off from £6,420 of (sole or joint) taxable income, the proposal being to reduce this first threshold to £3,850.
A dual system of contributory benefit, where women are less likely to have contributed timeously, together with means-tested entitlement, whereby women are often treated as the economic adjunct to a partner in employment, amounts to a systemic marginalisation of working-class woman’s central role in the reproduction of labour. (Indeed, when greater labour market participation meant that women became more likely to qualify for Incapacity Benefit, the predecessor of ESA, this increased claimant count became the driver of reforms that made it more difficult to get.) It also intrudes into private lives, solidifies casual relationships, and creates a financial weapon in the hand of the domestic abuser. Women make choices, but not in circumstances of their choosing.
At its most basic level, dependency occurs when a breadwinner’s wage eclipses a couple’s means-tested entitlement to benefit; there is enforced sharing of what may still be a very low income. The assumption behind the benefit rule takes no account of gender-based power relations within relationships. Phillpott’s partners worked and were forced to pay their income into his account; more commonly, it is the man who “owns” the money and is the arbiter of distributional fairness. When one of a couple with children signs on, it is normatively “his” dole.
Cohabitation fraud is a highly gendered crime that often reflects the desperation of the dispossessed female partner. Some “fraud” is a construct of investigators threatening a claimant into withdrawing her claim because she has a boyfriend, regardless of whether, on close analysis, the relationship could be said to be equivalent to marriage. According to Sue Kelly, the cohabitation rule “ignores or treats as collateral damage, the disadvantage which may arise where a … determination is made inappropriately, where a relationship … exists but does not involve a financial support obligation and subsequently the welfare of the other partner and any children in the household is put at risk.” Despite this, HMRC has engaged a private contractor, Concentrix, for speculative investigations rummaging through the financial affairs of single claimants – the woman accused of cohabiting with newsagent Martin McColl a case in point.
William Beveridge’s biographer acknowledges the impact of feminist reformer Eleanor Rathbone’s work The Disinherited Family in converting Beveridge to the cause of family allowances. Rathbone herself was influenced by the surveys of Joseph Rowntree and the Pilgrim Trust that laid bare a dimensional poverty of gendered intra-familial resource allocation. The retreat from the welfare state of Rathbone and Beveridge can be seen not only in defeated-for-now tax credit cuts but also in the removal of Child Benefit from higher-earning households, and below-inflation uprating of family benefits. The tax credit proposals are mirrored by cuts to child elements in Housing Benefit and Universal Credit; the latter will also taper off from a lower level of household income. Before November 2008, lone parents with a youngest child up to 16 could claim Income Support; there are now many more ways to lose your benefit with Universal Credit – job-seeking conditionality applying to parents of three-year-olds. But the harshest requirement of all, reserved for survivors of rape as if it were a special favour, will be the need to prove it if you want to claim for child number three.
Making an exception
The unedifying facts of Morgan are well known to law students and to feminist jurisprudence. The defence, to charges of rape and conspiracy to commit rape, was one of belief that the woman (the wife of Morgan) had in fact consented. In what has been described as a rapist’s charter, the House of Lords held that an unreasonable belief in consent would negate the essential element of mens rea. It’s not rape if a man’s delusional beliefs about women and sex are genuinely held. Although Morgan was eventually overruled, it remains the case that the injury of sexual assault is a uniquely subjective one. It’s as if a tree falling with no man to hear it made no sound. Catharine MacKinnon puts it thus:
… Women are also violated every day by men who have no idea of the meaning of their acts to the women. To them it is sex. Therefore, to the law it is sex. That becomes the single reality of what happened … she is not considered to have been injured at all.
Yet the nature of trauma is that often women also have an idea (but no more than that) of the meaning of those acts. Nick Ross has cited a survey finding that half of women who self-reported unwanted sex didn’t think they were raped; that this is probably true in no way supports Ross’s supremely ignorant conclusion that they couldn’t have been. Rape is a cautionary tale involving dark alleyways and strangers’ cars. Rape is a loss of control at the centre of one’s existence, to be managed and denied at all costs. It is definitionally not what you think it is; the meaning of those acts, the damage done, not reducible to a statutory instrument.
The “rape exception” has had some parallels in social security administration. The unpopular Child Support Act obliged lone parents claiming means-tested benefit to co-operate with assessment of the absent parent, or to show risk of undue harm or distress from doing so. The precedent of family legal aid restrictions shows how it will probably be drafted:
An application for civil legal services described in paragraph 12 of Part 1 of Schedule 1 to the Act must include evidence of the domestic violence or the risk of domestic violence.
It goes on to list acceptable forms of evidence, including criminal conviction; civil injunctions and findings of fact; and evidence from a health professional, social worker or domestic violence support organisation. Notably, if criminal proceedings had concluded in acquittal and without other evidence, the victim of domestic abuse that could not be proven beyond reasonable doubt could not get civil legal aid.
But adversarial family proceedings after you have left that person are very different from a tax credits claim as a couple. The rape exception raises compelling privacy issues as between joint claimants, as well as in terms of the outside world. Partners share responsibility for managing a claim and will know how many children are being paid for. When the question arose in relation to the need to establish one’s partner’s income for Child Benefit purposes, HMRC pointed out that the legal power existed for the necessary disclosure of one claimant’s information to the other. Can the exercise of that power in the context of rape ever be compatible with a woman’s rights to respect for private and family life, and not to suffer inhuman or degrading treatment? Should she be advised to claim tax credits, or apply for judicial review on human rights grounds first? (No point once the cat is out of the bag.) Will advice agencies be resourced to have trained female advisers on hand? What about other organisations that routinely want to see proof of income? Will HMRC investigate a claim by a neighbour that “I know she gets tax credits for three kids but she’s lying because my sister said …”? There’s also the open legal policy question of whether a joint claimant who is responsible for a third child via rape will be allowed the benefit of his wrongdoing, necessarily affecting his partner’s income and increasing dependence on her abuser.
Despite the unashamedly gendered nature of many of Duncan Smith’s welfare reforms, in each case that has come before the higher courts, they have decided that the rights of women and children are outweighed by the voodoo economics of “the deficit”. There is a chasm between the soi-disant magnanimity of the ruling class when it decimates the welfare state but gives us rape concessions and discretionary housing payments (clue’s in the name), and the lived experience of women in violent relationships struggling with four children and the rent. Women’s gains in the sphere of reproductive rights are thus appropriated: if you can’t afford a child there’s always abortion. As Laurie Penny implies, the choice is indignity, starvation, or dependence: the proposed rape exception is as horrific as it is unworkable. And, like so many screwed-up first drafts, in any sensible universe the two child limit belongs in the bin.
It is necessary, but not sufficient, to locate women’s oppression in the opaque sexual politics of the nuclear family. The unremunerated domestic, emotional and sexual labour of woman – the privatised reproduction of labour – militates against her, serving only to entrench Man as the default gender and Capital as god. And yet she also works.
For all the fulminating of Malthus and his flock, the poor law reform that led to the door of the workhouse was never about large families existing on the back of others’ labour. Speenhamland and similar outdoor relief systems had the effect of subsidising inefficient rural industry and holding back the Industrial Revolution. Welfare policy is an acknowledged tool of social control; reform always about consolidating the conditions under which labour is exploited. Austerity is an uncharted experiment in restoring the fictitious finance capital that was lost on a massive scale during the banking crisis of 2007/8. It is class war that demands a response in kind. The meaning of Mick Philpott is to have us looking down the wrong end of the telescope.
With thanks to Richard Atkinson
If you liked this article, please consider donating to SV to help us pay our writers and cover our operating costs.