Daisy’s Law – children born of rape to be recognised as victims by new law

Shekyena Marcelle-Brown considers the proposals, supported by Centre for Women’s Justice, which the government is seeking to enact in the current Victims Bill.

Daisy

Daisy was conceived when her birth mother was raped at the age of 13 by 29 year old Carvel Bennett. The crime was reported to both the police and social services at the time in 1975, yet no action was taken. Daisy was adopted by a family and later learnt of her mother’s rape at the age of 18. Daisy was eventually ‘reunited’ with her biological parents at Bennett’s trial for the rape of her mother. In August 2021, Bennett was found guilty of the historical rape and sentenced to 11 years’ imprisonment.

Daisy, now 47, was not considered a victim of rape but was fortunate enough to see her biological father be brought to justice. The coming developments in the law will allow more people like Daisy to gain access to justice as victims of rape in their own right.

The definition of rape

Under section 1 of the Sexual Offences Act 2003, a person (A) commits the offence of rape if

he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, B does not consent to the penetration, and A does not reasonably believe that B consents.

Therefore, the only person who can be a complainant for the offence of rape is B; the child of B clearly falls outside of the legal definition of rape.

In relation to sentence, the Sentencing Council’s Definitive Guideline for rape provides that pregnancy as a consequence of the offence is relevant to the level of harm caused and cases where the rape resulted in pregnancy places the starting point for sentence at 10 or 13 years’ imprisonment, depending on the level of culpability¹. In addition, the court is entitled to treat the psychological impact on both the primary victim and affected family members as an aggravating feature (R v Ul Nasir [2015] EWCA Crim 1604).

The current law

Currently, the law recognises only the person who was raped as the victim of the crime. It means that a child of rape cannot be the complainant in respect of their mother’s rape. This approach completely overlooks the child conceived from rape and the extent to which such a crime can traumatise the child.

Evidence shows that children born as a result of rape are at risk of suffering serious and long-term harm due to the distressing circumstances of their birth, from infancy well into later life². For example, women who fall pregnant as a result of rape may delay or avoid seeking pre-natal care, which in turn affects the development of the foetus, and the birth mother’s trauma can also lead to attachment issues and/or emotional neglect of the child.

An additional consideration is the fact that many people conceived by rape lose some or all of their identity. Those who know of the circumstance of their conception may feel forced to hide their paternity, often due to the shame associated with being a product of rape.

In Daisy’s case, not being recognised as a victim of rape meant that had her birth mother refused to co-operate with the prosecution of Bennett, or had her mother passed away, Daisy, being the product of rape as opposed to the person raped, would have been denied any recourse to justice. Yet Daisy’s existence in and of itself was strong evidence of the offence.

The statistics

Centre for Women’s Justice estimates between 2,080 and 3,356 children in England and Wales could have been conceived through rape during 2021³. Of those pregnancies estimated to have been conceived through sexual violence, around 30% result in termination and another 30% result in adoption⁴.

In July 2022, official government figures showed that 1,830 mothers in the UK had declared ‘non-consensual conception’ in official child benefit forms submitted to the Department for Work and Pensions⁵.

These shocking statistics make clear that thousands of women a year fall pregnant as a result of rape and accordingly a similar number of people continue to be denied support and access to justice.

The new law: Landmark legislation

On 19 January 2023, the Government announced amendments to the impending Victims Bill. The overarching principles of the Victims’ Code will be set down in legislation⁶. The amendment includes putting an obligation on criminal justice agencies to make victims aware of the Victims’ Code, and requiring standardised data to be retained in order to allow comparison across police areas.

The new law extends the definition of victim to include “individuals born of rape” as opposed to reducing their existence to an aggravating feature for sentence. It gives such individuals a statutory right to pursue a criminal complaint if they wish, and ensures they have access to criminal justice agencies, specialist care and support in the same way as any other victim of crime.

The provisions of the Victims Bill if enacted mean that England and Wales would become one of the first countries in the world to recognise and enshrine in law that individuals born in these circumstances should be treated as victims in their own right⁷.

Those opposed to the provisions have argued that some people might not want to be labelled as a ‘victim’ and although the premise of the new law is to expand the group that can bring complaints of rape, it is said that it does so in a way that pigeonholes those individuals as victims rather than empowering them. Notwithstanding this criticism, this independent status as a ‘secondary victim’ ought to achieve a number of positive outcomes for those affected, in particular by providing access to specialist support and eligibility for victims’ compensation. 

Campaigners believe this law may also improve the prospects of historic rape offences being recorded and prosecuted, which is a laudable aim given the poor track record in this country of rape prosecutions brought when compared to the number of complaints made. In practice, however, whilst the intention may be there, the continued under-funding of the criminal justice system means that there is already a shortage of RASSO (‘Rape and Serious Sexual Offence’) prosecutors, and there are unlikely to be enough available to prosecute if these provisions result in a swathe of new allegations.  

In light of the struggles that the Criminal Justice System and the Criminal Bar face, the change may be another empty government promise. Unless the government takes a realistic and holistic approach by properly funding the Criminal Justice System to achieve the aims of this legislation, then this law may be of limited practical application.

From an evidential perspective, secondary victims pursing a criminal complaint of the rape of another means that the ‘penetration’ element of the offence may be easily proven by way of their DNA as evidence. Nevertheless, the obstacle remains that without evidence given by the direct victim of rape, where capacity is not in issue, it may be difficult to satisfy the ‘consent’⁸ element of the offence by relying on DNA alone in the hopes of securing an evidence-based conviction.

Although there will be scope for prosecutions to be brought with only a secondary complainant, in practice this might fall at an even earlier hurdle as it may prove to be a difficult exercise for the CPS applying the public interest test where there is a conflict between the wishes of the primary complainant and the affected child.

On balance, ultimately, the Victims Bill demonstrates a cultural shift and overdue change in attitude towards those previously overlooked and forgotten by the law. Of note, the law will extend to the bereaved families and children who have lived with and witnessed domestic abuse to be recognised as victims as well.

The new law undoubtedly intends to change the lives of rape-conceived persons and their families, and will hopefully allow greater access to justice and greater support for these once marginalised groups.

Shekyena Marcelle-Brown

Mountford Chambers

10 February 2023

References

[1] Sentencing Council, ‘Definitive Sentencing Guideline for rape’.https://www.sentencingcouncil.org.uk/offences/crown-court/item/rape/ (Accessed on 10 February 2023)

² Dr K & Dr V Butterby, ‘Children Conceived in rape: A rapid evidence review for the Centre for Women’s Justice’ (2022). https://static1.squarespace.com/static/5aa98420f2e6b1ba0c874e42/t/62e3ac01535b560107b36d04/1659087874793/Children+conceived+in+rape_Rapid+evidence+review_Butterby_June+2022.pdf (Accessed on 10 February 2023)

³ Centre for Women’s Justice, ‘Daisy’s Law’: New Research Commissioned By Centre For Women’s Justice Demonstrates Why Children Born From Rape Should Be Recognised As ‘Victims’ In Law’ (2022). https://www.centreforwomensjustice.org.uk/news/2022/8/15/daisys-law-new-research-commissioned-by-centre-for-womens-justice-demonstrates-why-children-born-from-rape-should-be-recognised-as-victims-in-law (Accessed on 10 February 2023)

⁴ Dr K & Dr V Butterby, ‘Children Conceived in rape: A rapid evidence review for the Centre for Women’s Justice’ (2022). https://static1.squarespace.com/static/5aa98420f2e6b1ba0c874e42/t/62e3ac01535b560107b36d04/1659087874793/Children+conceived+in+rape_Rapid+evidence+review_Butterby_June+2022.pdf (Accessed on 10 February 2023)

⁵ Department of Work and Pensions and HM Revenue and Customs, ‘Universal Credit and Child Tax Credit claimants: statistics related to the policy to provide support for a maximum of 2 children, April 2022’ (2022). https://www.gov.uk/government/statistics/universal-credit-and-child-tax-credit-claimants-statistics-related-to-the-policy-to-provide-support-for-a-maximum-of-2-children-april-2022/universal-credit-and-child-tax-credit-claimants-statistics-related-to-the-policy-to-provide-support-for-a-maximum-of-2-children-april-2022 (Accessed on 10 February 2023)

⁶ House of Commons Justice Committee, ‘Pre-legislative scrutiny of the draft Victims Bill: Government Response to the Committee’s Second Report’ (2023). https://committees.parliament.uk/publications/33610/documents/183133/default/ (Accessed on 10 February 2023)

⁷ Ministry of Justice and The Rt Hon Dominic Raab MP, ‘Law to recognise children born as a result of rape as victims for the first time’ (2023). https://www.gov.uk/government/news/law-to-recognise-children-born-as-a-result-of-rape-as-victims-for-the-first-time (Accessed on 10 February 2023)

⁸ Section 74 of the Sexual Offences Act 2003 provides the definition of consent as “a person consents if he agrees by choice, and has the freedom and capacity to make that choice”.