Footballer Ched Evans was today acquitted after a retrial of one count of rape. The jury at Cardiff Crown Court returned a unanimous verdict of not guilty, Mr Evans’ solicitor read out a statement on his client’s behalf to the gawping media on the court steps in the time-honoured fashion and, within seconds, social media duly exploded with more speculation, myths, distortions and unjustified fury than one might suppose 140 characters could contain.

Ched Evans was a star player at Sheffield United.

The facts, as reported, can be briefly summarised: Ched Evans was originally tried with a co-defendant, and fellow footballer, Clayton McDonald, in April 2012. On 29 May 2011, Evans and McDonald had sex with the complainant, X, in a hotel room. McDonald had met X on a night out, taken her back to the hotel room, and had alerted Evans that he had “got a girl”. Evans duly arrived, made his way to the room and, seeing McDonald and X having intercourse, joined in. X woke up the following morning, professing to have no memory at what had taken place. Both men admitted that they had had sex with X, and were charged with rape, on the basis that X was too drunk to consent, and that neither man reasonably believed that she was consenting. Both men asserted that they reasonably believed that the complainant was an enthusiastic and consenting party. At the first trial, McDonald was acquitted. Evans was convicted and sentenced to 5 years’ imprisonment, of which he served the standard half before being released on licence.

That much, most people know. The further details, very few have bothered to acquire before forming judgment, firing off angry electronic missives and, in the cases of certain activists who should know better, offering vacuous quotes to the media.

So, in an effort to extinguish at least some of the stupid, herewith 10 myths we can squash at the outset:

1. So Ched Evans has been proved innocent, right?

Wrong. You’d be forgiven for thinking this, given that it was in the prepared statement read out by his solicitor, but Ched Evans has not “demonstrated his innocence”. That is not how our criminal justice system operates. It is not a means by which the truth of a situation or event is conclusively and fully determined. Rather the jury are asked one simple question – are you sure that the prosecution has proved its case beyond reasonable doubt (or, as juries are commonly instructed, so that you are sure)? “Not guilty” means just that. The jury were not sure that he was guilty. They may have decided that he was totally, utterly innocent, but we don’t know. All we know is that they considered the evidence, and were less than sure of his guilt. As I tell juries in every closing speech – if you think the defendant probably did it, he’s still not guilty. 

2. Well at the very least, the verdict means that the complainant has lied, surely?

No. Absolutely not. A not guilty verdict in most cases is insufficient to safely infer that the jury have concluded that a complainant lied (as opposed to the jury not being sure one way or the other), but in this case the facts suggest the opposite. As the Court of Appeal made clear in its judgment allowing the appeal, X has never asserted that she was raped. She has always simply maintained that she had no memory of what happened. It was the prosecution case – the case theory of the Crown Prosecution Service – that she was raped. The defence case was based not on the “usual” he said/ she said dispute over consent, but rather he said/ she can’t remember. There is absolutely no safe basis for suggesting she has lied, or, to quell the more hysterical calls, that she should be prosecuted on the basis of Evans’ acquittal.

3. Regardless, she has trashed his reputation and must be named and shamed.

That is extremely silly. And illegal. As a complainant in a sex case, she has anonymity for life. If you publicly identify her – including on Twitter – you will be prosecuted. It has happened before to friends of Mr Evans. It will happen to you.

4. How come she gets anonymity when he doesn’t?

Because that is the law. If you want to read my views on it, for what it’s worth, they are here. You may not like the law, but you should obey it. There’s some free advice.

5.This is a victory for rape apologists. She was blind drunk, he admitted not speaking to her before, during or after, and this shows that consent does not mean consent. 

No it doesn’t. It shows simply that the jury were not sure of both of the following limbs to the prosecution case, that need to be established to prove rape:

(i) That X was not consenting (because she was incapable through intoxication);

(ii) That Evans did not reasonably believe X was consenting.

Now based on the evidence, including the fresh evidence (see below), it might be that the jury thought X was consenting. And if they did, having heard all of the evidence, they are in a far better position to make that assessment than anyone not in the courtroom. Drunk consent, as juries are reminded by judges, is still consent. But it is equally plausible that they were sure that X could not consent, but were not sure, given her described behaviour, that Evans did not reasonably believe that she was not. Even if the jury thought that X was not capable of consenting, and that Evans probably didn’t reasonably believe that she was, he would still be not guilty – not because of a flaw in the law, or inherent misogyny, but because of Question 1 above, the burden and standard of proof. 

6. X was grilled on her sexual history, in contravention of the law. We’re back in the dark ages.

This was the analysis offered immediately post-verdict to the Guardian by Women Against Rape, a charity which should really know better, and Sandra Laville, the Guardian’s crime reporter. It has since been adopted and virally transmitted throughout the media. Questions about a complainant’s previous sexual history are not allowed in sex trials, unless a very strict set of criteria (set out in section 41 of the Youth Justice and Criminal Evidence Act 1999) are met. As the Court of Appeal explained (at [44]), these provisions are designed to counter the myths that “unchaste women are more likely to consent and less worthy of belief”. Yet X was cross-examined by the defence barrister over other sexual incidents – so what happened?

Well, in short, the law was followed. This point hinges mainly on “fresh evidence” that was not available at the first trial. Leave to appeal against Evans’ conviction was refused by the Court of Appeal in 2012, and Evans thereafter approached the Criminal Cases Review Commission with “fresh evidence” which had since emerged and which he claimed undermined the safety of his conviction. We now know that the principal nature of this fresh evidence was as follows:

  1. A man, O, gave evidence that, two weeks after 29 May 2011, he had been out drinking with X, and had engaged in consensual sexual intercourse, during which she instructed him to penetrate her vaginally from behind, shouting, “Fuck me harder”. 
  2. A second man, S, gave evidence that, on 28 May 2011, X had engaged him in a night of drunken sexual activity, in which she adopted the same sexual position and used words, “Go harder”.

Evans’ case at trial was that X had acted in the same way on the 29 May 2011, encouraging him to penetrate her “doggy style” and using the words “fuck me harder”. This, it was argued, demonstrated that she was consenting, and also supported the reasonableness of his belief that she was consenting. 

One of the exceptions under section 41(3) allows for evidence of sexual history to be adduced, and questions asked of the complainant about it, where the evidence relates to the issue of consent, and is of sexual behaviour of the complainant which is “so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused…that the similarity cannot reasonably be described as a coincidence”. In short, it is beyond coincidence, the defence argued in the Court of Appeal, that X would consensually engage in this specific type of sex act using these specific words on occasions around the time of 29 May, but that she was not consenting in the same circumstances on that date. This tends to show that, drunk though she was, she was sufficiently in control of her senses to give consent, and, furthermore, to give Evans the impression that she was consenting. This, the defence argued, is relevant to the jury’s assessment of whether she was consenting, and whether Evans reasonably believed that she was. 

The Court of Appeal, having considered other case law, agreed that in these unusual circumstances the fresh evidence ought to be admitted, and that X should be questioned on what the new witnesses had to say. Now it may be (I haven’t had the time to properly apply my mind to it) that a forensic analysis of the Court of Appeal’s reasoning will reveal a flaw, or an inappropriate leap, or even a misinterpretation of previous binding authority. It may be that the Court’s application of the strict criteria for agreeing to admit fresh evidence was arguably not met. Such things are not unknown. The Court of Appeal sometimes fluffs up. But unless you’ve read the judgment, and have carried out the legal analysis and the research, you’re not able to say, are you? So, I urge you, stop spreading speculation which is not only misleading and removed from fact, but likely to deter victims from coming forward. 

UPDATE: A special mention goes to the raft of claims in the press that this case sets a new, special precedent allowing the sexual history of complainants to be admitted in evidence in any future case, solely for the purpose of shaming the complainant in a dark return to the 1970s.  Allow me to help: The precedent that has been set is none. The Court of Appeal decision sets down no new application of law or principle, and section 41 continues to operate exactly as it did before, excluding the vast majority of questions about previous sexual behaviour. The newspapers, activists and charities propagating this false message are needlessly terrifying present and future victims, and will only risk deterring them from coming forward.

BONUS 11 and 12:

11. The evidence of previous sexual history was used to attack X’s credibility.

Dangerously untrue. The purpose for which the evidence was admitted was expressly limited, as per 6 above. Section 41 explicitly forbids previous sexual history being used for the purpose of attacking a complainant’s credibility. It was not admitted so that the defence could say, “She consented to sex with other men, therefore she must have consented to sex with this man”. It was admitted because of the specific similarities identified by the court which, it was held, were relevant to the issues of whether X consented and whether Evans reasonably believed that she was consenting.

12. The acquittal of Clayton McDonald at the first trial shows that Evans’ conviction was not safe in the first place.

I have heard this view expressed several times over the weekend, including by broadcasters. The argument runs as follows: “If the jury thought that X was consenting, and capable of consenting, to intercourse with Clayton McDonald, how can it be that within a matter of minutes she was incapable of consenting to sex with Evans?” The premise and conclusion here are both flawed.

Firstly, we do not know why the jury acquitted McDonald. Nor why they convicted Evans. So speculating about verdicts and questioning the jury’s reasoning is rarely helpful. But we do know, as per 5 above, that they were considering two separate issues for each defendant: (i) Was X consenting (and capable of consenting)?; and (ii) Did the defendant reasonably believe that X was consenting? And, from this, several permutations of findings of fact arise. One of these, which may have been the jury’s reasoning, was that X was too drunk to consent with either man. However the circumstances in which the two men met X are vastly different. McDonald met X, engaged her in conversation and took her to the hotel. Evans simply arrived once McDonald and X were having sex and, putting it starkly, joined in without saying a word. Thus the jury could have concluded that, while X was too drunk to consent, she may have given McDonald a reasonable belief that she was consenting, whereas Evans, not having the benefit of having spoken to X, had not established “reasonable belief” in consent before engaging in intercourse.

This point, largely academic now but being advanced by some as holding greater significance, was in fact considered by the Court of Appeal at Evans’ first application for leave to appeal in 2012. I leave the final word to the Lord Chief Justice who heard that application [my emphasis in bold]:

“The jury [at the first trial] was directed as follows: “When you come back …. you will be asked to return separate verdicts in respect of each of the two defendants. Accordingly, when you retire you must consider the case, that is to say the evidence for and against each of the two defendants separately. Whilst there is a considerable overlap in that evidence, the evidence is not identical, and whilst your verdicts may very well be the same in the case, they might be different. The important thing for you to remember is your approach to the case for and against the defendants must be considered separately.”

Given that direction, it was open to the jury to convict both defendants, to acquit both defendants, or to convict one and not the other defendant. That was the point of a joint trial in which separate verdicts were to be returned. It was open to the jury to consider that even if the complainant did not, in fact, consent to sexual intercourse with either of the two men, that in the light of his part in what happened — the meeting in the street and so on — McDonald may reasonably have believed that the complainant had consented to sexual activity with him, and at the same time concluded that the applicant knew perfectly well that she had not consented to sexual activity with him (the applicant). The circumstances in which each of the two men came to be involved in the sexual activity was quite different; so indeed were the circumstances in which they left her. Those were matters entirely open to the jury; there was no inconsistency.”


Many thanks for all the comments on this page. Due to the volume and difficulties in moderating, comments are now closed.

thesecretbarrister Bad Law, Lawsplaining , , ,

167 Replies

  1. On a point of linguistic and logical clarity, is it a “myth” that “unchaste women are more likely to consent” as the Appeal Court say? Is that not just the definition of “unchaste” – a person who frequently consents to sex? Surely the point is that being “unchaste” should not lead anyone (either the defendant in the moment, or the jury at the trial) to infer consent was given. Just because someone frequently consents to sex doesn’t mean they did in this instance.

  2. Thanks for a the article. One question, I understand that a not guilty verdict is not a proclamation of innocence. I do have this question.
    Given (as I understand it) the law states you are presumed innocent until proven guilty. If you are found not guilty the should you not have the right to be presumed innocent?

  3. Great points, but one point that I thought was missed in the trial was why, when the room was booked by Evens for his friend to stay in comfort for the night, he left the room before Evans, so they hadn’t intended to sleep there anyway. Premeditated?

  4. I’m a retired Met Detective Sergeant, too weary to sustain anger or disbelief at the antics of many of those involved in the administration or practice of criminal law, but I would like to say, thank you.

    Thank you for publishing an article which gives me a glimmer of hope, that those involved in the administration of ‘justice’, may still include people who can articulate knowledge and balanced opinions with clarity and humour, and who may actually employ those skills professionally.

    The cynic in me realises that this does not preclude you being a cock-womble of the highest order regarding other matters, but your use of sarcasm and irony gives me hope that you may actually be the real deal. Best wishes for the future.

  5. Good article if it weren’t for point 1.
    The Secret Barrister should acknowledge the continuing presumption of innocence.
    Especially having bemoaned its loss in his/her own article on defendant anonymity which we are referred to.
    It would be slightly ridiculous if this presumption were overturned by virtue of the case having been brought to trial and failing to convict.

  6. Unbelievable that we can send a man to prison for rape, completely destroy his reputation and career based on zero evidence of any kind

    When the man serves his time and fights and ultimately quashes his conviction, bloggers such as this, instead of expressing outrage at the injustice he suffered, claim that he isn’t innocent and almost sound upset

    He is 100% innocent in the eyes of the law – imagine if you can how it must feel to be sentenced to five years in prison for a crime you didn’t commit and for which there was no evidence of any kind – a total outrage, that’s what this blogger should be writing about….

  7. As far as I understand it, and please correct me if I am wrong, the ‘complainant’ never complained. She went to the Police to report a missing handbag. When asked about her movements she mentioned the hotel, the footballers, and her lack of clear recollection – but logical assumption that she probably had sexual congress with one or both of them. The Police then hauled in the defendants, who confirmed they had had sexual liaisons with the lost handbag reportee. Later, the CPS decided to prosecute based on the fact they believed the chance of conviction 70% or higher. THAT, and all it’s implications, I find absolutely terrifying.

    I’m not going to go into the purely subjective realm of morality here, suffice to say from my enunciation all involved need to have a really good think on their attitudes, behaviours, and the consequences of them. I’n not going to comment on Evans and what exactly happened as he opened the door after receiving that text, not even the lady involved can provide clarity on this. This is of course deeply concerning, but evidence of nothing but a deeply consequential alcohol induced vacuum in her short term memory.

    Regardless, is it not the Police and CPS, and whatever directive, individual, group or policy shaped their actions, who should not be on trial?

  8. A good article, but I feel that point 1 is deceiving: “So Ched Evans has been proved innocent, right? Wrong.”

    Presumption of innocence is a pillar of our justice system and means that if somebody is found not guilty, then they ARE innocent. Nobody needs to be proven innocent, all the burden is on the prosecution to prove guilt. So Ched Evans has all the rights to claim he is innocent. He could not have been found more innocent than this. So, while formally correct, the statement above is misleading in my view.

  9. A good article, but I feel that point 1 is deceiving: “So Ched Evans has been proved innocent, right? Wrong.”

    Presumption of innocence is a pillar of our justice system and means that if somebody is found not guilty, then they ARE innocent. Nobody needs to be proven innocent, all the burden is on the prosecution to prove guilt. So Ched Evans has all the rights to claim he is innocent. He could not have been found more innocent than this. So, while formally correct, the statement above is misleading in my view.

  10. Hi Secret Barrister,

    I like this explanation which is very informative. However I’m struggling over your explanation in point 5) in which you outline the two tests to pass in order for a conviction to be obtained:

    You state: “(i) That X was not consenting (because she was incapable through intoxication);” however a few lines later also state “Drunk consent, as juries are reminded by judges, is still consent.”

    Is this a comment that judges misdirect juries? Or that being drunk is not akin to intoxication? Or a typo?

    Many thanks for clarifying.


  11. It seems to me that everybody here is failing to recognise one clear fact.
    The “victim” did not go to the police with a complaint of rape, she went to try and find her missing handbag. The defendants were traced, admitted being with the victim, and having sex with her, but it was the police and CPS who took forward the rape charge, on the basis that the victim was not in a position to consent to those acts which the defendants had admitted to.
    The victim did not remember being in the room with the defendants, did not remember travelling to the hotel, and did not remember consenting to sex with either of the defendants.
    The police were not in the room.
    The CPS were not in the room.
    The defendant did not remember being in the room before she woke up… so who can the jury believe? The ONLY evidence of what happened is the statements given by the defendants – and in this retrial, one of them was not called in court.
    My view is that if you leave your home unlocked while you are out, and you are burgled, YOU are negligent, even though burglary is against the law.
    If you go out and get drunk, and yet are still able to walk, talk and answer questions (see the taxi drivers evidence given in WalesOnline) then it is a bit much to expect the onus to be on the defence to prove consent was given beyond all doubt… and a jury of 7 women and 5 men appear to have agreed at last, while the initial jury did not.

  12. I have no legal training and find this a very helpful article. But I still find it hard to see how the evidence about the alleged victim’s previous sexual behaviour is relevant. If she requested Ched Evans to take her from behind and do it harder, as alleged, then that is consent. The previous cases aren’t relevant because it’s clearly consent. If she didn’t say this (and he is lying) then the previous instances also aren’t relevant. I don’t see how the previous sexual behaviour has any bearing because her alleged words are not at all ambiguous. If the previous instances suggested something such as when she said “stop” she meant “fuck me harder” (and she’d said stop to Ched Evans too) then it would be a different matter and the previuos behaviour would be very relevant.

    1. The point is that it suggests Ched Evan’s version of events IS authentic to what happened. It closely matches other similar scenarios she engaged in, in a manner unlikely to be coincidental.

  13. Some have already highlighted the apparent contradiction between a drunk victim being considered unable to take responsibility for giving consent, yet being held responsible to an absolute degree were they to drive. I’ve long wondered about another aspect of this: why is it that the male is considered [b]always[/b] capable of making that – often subtle – judgement as to the female’s capability to consent without the entirely comparable impairment of their judgement through alcohol being considered a similar mitigating factor?

  14. Why can’t there be a strict liability offence of rape where the victim’s BAC is tested and found to be at an extremely excessive level? It would prevent a lot of cases like this from occurring as people would be deterred from engaging in sex where it was high risk, resulting in fewer situations where the line of consent is blurred. . Who cares if people miss out on shitty drunk sex? Given the risk of HIV from unprotected sex, other STDs, unwanted pregnancies, rape, violence etc… it’s surely as much in the public interest as the prohibition of drunk driving. It does sometimes seem like there is an interest in preserving the blurred line between consent / non consent out of a fear that women will cry rape whenever they get the opportunity to.

    1. 1) Blood Alcohol Level simply does not correlate well with how alert or consenting people seem..although it may correlate with how much they remember of it afterward.

      2) You would only be able to measure the BAC when the crime was reported. That would presumably be quite some time after, rendering the BAC at that time meaningless. It may be lower (because they have started to recover) OR they may have downed a bottle of whiskey AFTER sex and so have a high BAC than they would have done during the act. This surely could not be admissable evidence therefore.

      3) If one party is allowed to claim diminished responsibility due to a raised BAC, why can’t the other party? Why couldn’t the guy claim that he was too drunk to consent himself, or too drunk to fairly assess the girl’s level of capability to consent? Surely the law would have to work both ways.

      4) If having a high BAC diminishes your legal responsibility to take the decision to consent to sex, why does it not also diminish your legal responsibility to take the decision to drive a car? i.e. Why can’t you argue that, had you been sober enough to think rationally, you would never have taken the stupid decision to drive the car while drunk, and therefore you should be exempted from any drink driving charges? Again..surely the law would have to work both ways?

  15. Did she know Evans was the person she was consenting to ? Did McDonald tell her he was being joined by his mate .Did she actually see him?
    Was her expression of implied consent aimed at Evans ?

  16. Thanks – a very interesting and enlightening post. But there is one point i take issue with – your first one. The law is binary. If he is not guilty then he is innocent. There may be a grey area in the decision making process. But the outcome is clear. He is innocent.

  17. Regarding point 6 – I thought another very key factor here was that other witnesses testified to the fact that the woman claimed amnesia after sexual intercourse while appearing capable of consent at the time?

    Perhaps more so than the sexual positions and words she used that is a directly relevant piece of information, as so much of the case that she was “too drunk to consent ” was based upon her amnesia of the events.

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