Podcast Episode 06: Daisy's Law with Kate Ellis
CJ: Hello and welcome to the Feminist Law Podcast. I’m your co-host Courtney Jones.
CT: And I’m your co-host Clara Topiol. We’re both co-founders of the Feminist Law Project and final year law students who are very passionate about feminism and the law. Today’s episode will feature extensive discussion on rape and sexual violence. If you need any support after listening to the episode, we have some resources available in the show notes that you can contact.
CJ: Today on the podcast, we have Kate Ellis from the Centre for Women’s Justice (CWJ). Kate is a solicitor-advocate who represents clients in the criminal justice system and represented Daisy, a woman born as a result of rape in her efforts to seek justice on behalf of herself and her birth mother. Would you please introduce yourself?
KE: Hi, yes, I’m Kate Ellis. I’m a solicitor on the strategic litigation team at Centre for Women’s Justice and I represented Daisy.
CT: Thank you for introducing yourself. So, what made you decide to pursue a career in criminal law as a solicitor advocate?
KE: Well, I think as a young and fairly political person, I had always seen the law or the legal profession as a set of tools to help hold people in positions of power accountable for wrongdoing and to tackle injustice. With that idealistic mindset, I was very interested in pursuing a career in law, I was interested in the idea of using the law strategically to bring about social progress and I think I was also quite interested in tackling issues around policing and the criminal justice system because it is an area absolutely rife with problems and where the law can be used strategically to great effect.
CJ: Absolutely. Would you mind telling us a bit more about what the CWJ is and what it does?
KE: The CWJ is a specialist legal charity, relatively young charity, it was established in 2016 and its mission is to hold the state accountable in relation to violence against women and girls and also to hold the state accountable in relation to discrimination against women and girls in the criminal justice system. We do that by using the law, we are a legal charity first and foremost. One key thing that we do is we bring strategic legal challenges, strategic litigation, against public authorities in relation to criminal justice policy or criminal cases. So, we might represent women or women’s charities in bringing a legal case which they hope might strategically improve the landscape in relation to the state’s response in relation to violence against women and girls. We do have a work such as training and advice to frontline women’s services like rape crisis services. We have a very hands-on approach; we help them with the cases that they are dealing with, and we train them with the law. There are also times where we feel that litigating through the courts is not enough and where we feel that legislative reform is necessary. This is really what’s happened with Daisy’s law: we feel that there is a lacuna in the law that needs to be resolved and so in these circumstances, sometimes, we are able to provide our support and advice on a legislative campaign.
CT: And following on from that, how did you come to work as a solicitor for the CWJ?
KE: I initially trained in private practice in a law firm that specialised in criminal defence but also in claims against public authorities, civil claims. I gained experience in both areas. In the course of my work there, I think by around 2017, I started looking around at what brilliant strategic work lawyers were doing in the field of claims against public authorities. I became aware of Harriet Wistrich, the senior lawyer who founded CWJ. She had already built up quite a reputation by that time as a forerunner in bringing feminist legal cases that were advancing the rights of women and drawing attention to discrimination in the criminal justice system, discrimination against women. I was a big admirer of her work; we ended up tangentially working together in the sense that we were both involved in a public inquiry looking at wrongdoing by public officers who had infiltrated social and political justice groups. When I found out that she had established the CWJ and they were recruiting their first solicitor, something just clicked because I had always been a feminist, I had always wanted to work in strategic litigation, and it felt like the perfect option for me. I was very proud to become the first solicitor at CWJ working alongside Harriet, the founder.
CJ: Yes, I mean it sounds like the CWJ is doing incredible work. So, focusing a little bit more on that then, you were the solicitor who represented Daisy and advocating for Daisy’s law. Could you maybe tell us who Daisy is and a bit about her story?
KE: Absolutely. Daisy is a woman who grew up in an adoptive family, she was always aware that she was adopted but she didn’t know much about her origins until she discovered aged 18 that she had been born as a result of a rape. So, she found this written pretty much in black and white on her adoption file when she decided age 18 that she wanted to find out where she had come from. It was actually written there that her birth mother had been a child aged just 18 when she had fallen pregnant. The alleged father was named and a much older man. It was even said that Daisy’s birth mother had disclosed to services that she had not wanted to have sex with him, that he had forced himself on her. So, this was obviously a devastating shock for Daisy and over the years that followed where she grappled what to do with this information, she decided to reach out to her birth mother, knowing that this would be a very difficult relationship in the circumstances for her birth mother, but they did establish contact. She discovered that her birth mother had obviously disclosed at the time who the father was and the fact that she had been raped and it hadn’t been taken seriously. But she now felt that she didn’t want to go back and report it to the police, she didn’t feel up to that or to giving evidence at any sort of trial. So, Daisy really struggled to live with this information and the knowledge that there was a man out there who was a child abuser who was potentially still posing a threat to children and who had never faced any consequences. She sort of felt that she had some right to justice in these circumstances because his behaviour had affected and defined her whole life too. She ultimately decided, after the Jimmy Saville scandal broke really, that she would go to the police herself and report what had happened because she had all the information she needed, she had also done some more digging into her background and her birth father’s background. She obviously is in a sense a walking crime scene because her own DNA is now proof of what happened, given advances in science that weren’t available at the time she was born. So she went to the police to report the crime of her birth mother having been raped and saying I am willing to go through the criminal justice system even if my birth mother is not up to giving evidence and to her shock, the police and child services who she reported to as well just turned around and said there is nothing we can do here. Especially the police said that if her birth mother wasn’t willing to give evidence at a trial, if she was unsure about supporting a prosecution, then that was the end of the matter because Daisy herself wasn’t recognised as a victim or someone who could be a complainant in the process. she couldn’t believe it because ultimately there was this situation where all of the evidence showed pretty clearly that there was a child rapist who had never been brought to justice and her DNA was capable of providing the final piece of the jigsaw puzzle. So, to hear that nothing could be done was absurd. She took to campaigning in the media, always protecting her birth mother’s identity and obviously not naming the man who had been accused but to say that she was in this absurd vicious cycle, in this situation where despite having reported her birth father and all the evidence being there, no action was being taken against him. And as a result of this campaigning in the media, the police actually reached out to her birth mother again. Her birth mother had a change of heart really and decided perhaps that she would be able to go through with the prosecution and giving evidence to the prosecution. Ultimately, after 40 odd years, Daisy’s father was convicted. There was this extraordinary moment at his sentencing where both the prosecution barrister and the judge actually commended Daisy saying that she was much more than a witness in this case, should be regarded as a secondary victim herself and that they really recognised that all her campaigning efforts had made this possible. But Daisy wasn’t content to stop there because I think she felt that there was a wider problem here that needed to be addressed in the law and so she started campaigning for the law to be changed so that children who are conceived in rape, born as a result of rape, are recognised as secondary victims of rape and have rights as such.
CT: Thank you for sharing that and it sounds like an absolutely incredible story but also such a brave thing for Daisy to go through with the process. So, you mentioned that Daisy was a secondary victim. So why aren’t children born as a result of rape currently recognised as such and why should they be?
KE: Children born as a result of rape are not named as a category of victims within the Victims Code. There is a code of practice relating to victims called the Victims Code which defines what a victim is, i.e., who will have rights under that Code. The current definition doesn’t extend to or allow for children born of rape to be recognised as victims. To be honest, as far as I’m aware, it’s not something that’s been considered previously and then been rejected as an idea. I don’t think it’s not ever been considered that children born of rape are secondary victims and that that should be reflected in law. Daisy is really trying to raise awareness and make the case for it. She’s trying to highlight the reasons why children conceived in rape need be recognised as secondary victims. I think, initially, she did that by largely pointing to her own experience and the devastating impacts that it had on her, discovering that she had been born as a result of rape, the fact that this has really defined her life in a lot of ways, struggling with her identity in the sense of who she is, with the kind of stigma and shame, even though there shouldn’t be that stigma but it is such a taboo subject, struggling with the lack of support available, the lack of understanding… so I think for her, it’s had enormous impacts on her childhood and her adult life and she really feels like her status as a victim should be recognised, that she has been impacted differently but very significantly by the crime of rape. In addition to Daisy’s own experience, we’ve looked at the fact that there is a really alarming lack of data in terms of children born of rape and their experiences but what we do know is that there are probably a lot of people who are born as a result of rape, some of whom may know, some of whom may not, and we got some research commissioned with Daisy by academics at Durham University, a sort of review of the limited literature that does exist about children conceived in rape which arrived at some really heartbreaking conclusions about the impact that rape conception has on the children born of rape. Obviously, there may be a range of different impacts which vary on socio-economic factors and whether or not the children has been raised by the birth mother who has raped or whether they were put up for adoption and all sorts of things but there are definitely some common trends: attachment issues and attachment disorders, children feeling unloved by their birth family or children feeling that they don’t have a family and a community because they have been displaced as a result of the rape, and even impacts on things like educational outcomes in development. There was evidence, in some more extreme cases, of the neglect and hostility towards the child. In other cases, just of how the child’s mental health and confusion about their sense of self had been impacted and the way that those mental health impacts had resulted in poor educational and developmental outcomes. There is some data which suggests that unsurprisingly, being born of rape has an enormous negative impact and better support and recognition is needed.
CJ: Yes, absolutely. So, we’ve talked a lot about Daisy and her story and the impacts of being born of rape have had on her but I’m wondering if you could explain a little bit more what exactly is Daisy’s law and why that law would be so important?
KE: Yes. We are calling, in Daisy’s law, for children born of rape to be recognised explicitly within the Victims Code. In actual fact, what we’re hoping is that there will be a statutory provision which recognises children conceived in rape as victims for the first time which is then reflected in the Victims Code. Because it is based on the statutory footing, there will be no way that children conceived in rape will not be included within the definition of the Victims Code. In practice, what does this mean? We think there are three main outcomes this would have, positive outcomes, if Daisy’s law was passed: firstly, just the symbolic fact, the fact that in principle it is so important to recognise children born from rape as secondary victims because it recognises the harms that they have suffered. I think for someone like Daisy, it would feel less like she’s been gaslit and ignored by society if she was recognised as a secondary victim. I think it’s really important that we look at how rape affects mothers and children and what the dynamic is there, and it will help us to better understand and support children who are born as a result of rape. So, there is that symbolic importance which I think it will raise awareness of the issues and the harm to children born of rape. Secondly, there is a real practical impact it would have which is that if children born of rape are recognised within the Victims Code, they won’t face the issue that Daisy faced when they report to the police: that they are told that they have no rights at all to come forward as complainant and make an allegation of crime. It doesn’t mean that in every single case where a child comes forward and says “I know that I was born as a result of rape and I want to support a prosecution”, that should eb possible to prosecute the offender, we don’t expect that in every single a case a prosecution will be possible but we do believe that where a child conceived in rape makes a report to the police, that should be taken seriously and investigated, they should have all the rights that a victim normally has when they report a crime such as rights to be kept informed and notified of the outcome and referred to appropriate support services. I do believe that in some cases, it would better enable the police and the prosecution service to bring prosecutions because in a case like Daisy’s for example where the direct victim of a rape was a child, there may well be compelling evidence just arising out of the child’s DNA and the fact that they come forward. the final third thing is that we hope, if children are recognised in statute as victims, that this will in turn result in support services being established, specialist support services, for children born of rape or perhaps for families affected by rape conception so potentially mothers and children. That is really important because Daisy has really looked for years and years and found that there are no specialist services out there at the moment for children born as a result of the rape. There is very little understanding seemingly of the psychological impacts and the psychological needs that children born of rape may have. I think she is hoping that there will be specialist services for children born of rape once we take that first step of recognising them as victims.
CT: Thank you so much for that. It does sound like Daisy’s law is very important and has been instrumental in terms of affording victims’ greater protection. In terms of Daisy’s case, it sounds like there was some difficult prosecuting the man who raped Daisy’s mother because she was reticent to provide evidence. Is it therefore possible to prosecute a rapist without a statement from the primary victim? And why is this so difficult?
KE: It’s a complicated question, partly because it depends when the offence was committed. In Daisy’s case, the problem was that the rape occurred at a time when the old Sexual Offences Act was in force and under old Sexual Offences legislation, it was the case that a child between the age of 13 and 16 who had been raped, it was still necessary for the prosecution to prove that the child had not consented, which is an archaic idea that we have since distanced ourselves from, the position now is that if a child was between he ages of 13 and 15 and the perpetrator knew that they were underage, then they have committed an offence, it is strict liability. But at the time, if you wanted to prove rape against a child aged 13, you would need to prove that the child had not consented to the sexual act. It could still be prosecuted as a lesser offence but in order to prosecute the offender with rape, there was a need to prove that the child had not consented. What that meant in Daisy’s case is that because the old Sexual Offences legislation still applies where the rape is historic, the prosecution did need evidence from Daisy’s birth mother confirming that she had not consented. It is arguable that even the information that was on the written records, which showed that the birth mother had not consented at the time, that that may not have been enough because normally in a rape case, the person who has alleged they didn’t consent would be cross-examined about that and about how they had expressed the fact they weren’t consenting and so on. I do believe that if there was a case where an offence had happened under the new Sexual Offences Act, so since 2004, so if Daisy had come forward and the situation had been that her birth mother had been raped since 2004, I do think that there would potentially be a stronger case. I am very interested in the fact that if Daisy’s law was passed, I think there might be cases where children who have been raped, if they conceive a child as a result, I think there might be a stronger case to be made for prosecuting the perpetrator with or without the birth mother’s direct evidence.
CJ: Yes, absolutely. We’ve talked a lot about Daisy and her story and why her story is so important but I’m wondering, how come and is it for children to be born as a result of rape, how big of a problem is this?
KE: There is a really staggering lack of data which makes it hard to say. Again, there just seems to be an issue which has been under addressed by our society so there is limited data. The research that we commissioned, that was conducted by Durham University academics estimated that possibly between about 2000 and about 3300 children could have been conceived in rape between January 2021 and December 2021. I’m rounding the figures up but that is a considerable number, that’s the number that is considered to have been conceived in rape in England and Wales over a one-year period. We know to that, in the three-year period after the benefits rule changed so that mothers could claim the rape clause, they could rely on an application for benefits, they could apply if they had a child who had been born as a result of rape, over a three-year period, at least 900 mothers in the UK relied on that so-called rape clause, on the fact that they had a child who had been born as a result of rape to get around the two child cap rule. We know that there are a number of mothers who have come forward, 900 mothers over a three-year period, who have actually had a child born as a result of rape. We also know that in other countries, there is data suggesting for example that in the United States, as many as 32,000 pregnancies may have occurred each year would have occurred as a result of rape, approximately 12,000 of which may have been carried to term. I think we are talking about really substantial figures and although it’s difficult to extrapolate conclusions from the data, we also sadly know that rape is incredibly common, so it follows that the number of rapes resulting in pregnancy is likely to be quite high. I think we are talking about very significant numbers, and it is very poignant therefore that we have such little information about the experiences of children born as a result of rape.
CT: These are very staggering figures indeed; I am really shocked by them actually. I’m wondering, what kind of impact does this have on the women who are raped and the children born as a result, like Daisy was? KE: We focused in the research that we commissioned largely on the impact on children, just because of the particular change in the law that Daisy is hoping to bring about but inevitably, there was some data that was referred to in the report about impacts on mothers and I think it could be really heartbreaking for mothers as well, to make the decision whether or not to keep the child if that’s a decision they are able to make, to carry the child to term, whether to raise the child, the agonizing decisions they are having to make around that, the shame and also one thing that really came through were the profound difficulties in establishing a healthy relationship with the child. But that’s not the mother’s fault and it came through that there were mothers who had really grappled with and loved their children, but it remained a constant struggle throughout the child’s life to maintain a really healthy relationship because of how traumatic the birth had been, the circumstances of the birth. So I think there does seem to be some clear evidence of real attachment issues between mothers and children that evidently have a really significant impact on both.
CJ: Yes of course and the work that you and the CWJ are doing on this particular issue is just incredible and so important so thank you so much for all that you’re doing on behalf of women and all that you’ve done for Daisy. I just want to thank you so much for joining us on today’s podcast. If our listeners want to learn more about Daisy and her story and Daisy’s law, where can they go to do this?
KE: So you can follow Daisy’s own campaign page on Twitter which is @rapeconception or daisy@rapeconception, she posts a lot about the campaign and about other information that may be relevant to children born of rape. You can also follow CWJ on Twitter, you can join up to our mailing list on our website, centreforwomensjustice.org.uk. That will keep you updated on any major campaign developments. We are at the stage of hoping to put forward an amendment or persuade a group of MPs who are already supportive to put forward an amendment to the current Victims Bill which would introduce Daisy’s Law so we would also urge people to write to your MPs, raising this issue and asking them to support Daisy’s Law.
CT: Thank you for those pointers. Following on from that, if someone is interested in supporting the work of CWJ, how can they do this?
KE: Again, I would direct people to our website and mailing list because that will keep you updated on what’s going on. If you’re in a position to donate to CWJ however large or small, we are really reliant on donations from members of the public so that would be amazing. You can also donate directly to Daisy’s campaign on Crowd Justice and if you go to our website, you’ll find all the details.
CT: Great, thank you so much for joining us.
KE: Thank you very much for your time.
CJ: In today’s feminist news roundup, new data reveals huge inequalities for survivors to access domestic abuse services across England and Wales. The mapping by the Commissioner shows disparities between areas, different groups of ethnicities and groups of survivors. The domestic abuse commissioner has now challenged the government to deliver improvements for victims that would save lives and she set out 26 recommendations for change.
CT: Also in today’s news roundup, studies and data from the CPS have shown that revenge porn victims are often stalked and harassed by their ex-partners. The harassment that was reported included unwanted phone calls and messages after the relationship breakdown and some victims were even stalked at their workplace or at home.
CJ: Finally, Met Police Officer Rupert Edwards has been arrested on suspicion of rape of two different women, said to be committed whilst he was on duty. Edwards has since been suspended from duty whilst legal proceedings continue to take place. If you have any suggestions for this podcast, let us know directly via email at firstname.lastname@example.org.
CT: Please also visit our website at feministlaw.org and follow us on Instagram and LinkedIn to keep up to date with our latest articles, podcasts, newsletters, and exciting news.
CJ: The music for this podcast was sourced from pixabay.com.
CT: Thanks for listening!
Transcribed by: Clara Topiol