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.”


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thesecretbarrister Bad Law, Lawsplaining , , ,

167 Replies

  1. I’m interested. How is “drunk consent” counted as consent? isn’t that like “drunk driving” just driving?

    1. Difference being the law says you can’t drive when you are drunk, but no law to say you can’t have sex when you are drunk!

    2. Not at all. That’s like saying if they were drunk when driving then they cannot be charged, as they cant be held accountable because they made the decision to drive the car when were too drunk!!

    3. Well how on earth did you come to that comparison?
      People have drunk sex all the time. The issue is the consent bit.

    4. Yes, that’s why people always get let off when they say “I didn’t know I was supposed to drive, I was drunk”.

    5. Of course, the crucial question is “how drunk”? Drunk people have consensual sex all the time.

      The problem to me is this: any rapist can say he “believed” the woman was consenting, even if she wasn’t. A woman who is very drunk, or has had her drink spiked, is the easiest prey in the world. And if he says he genuinely believed she was consenting, how can anyone prove that he didn’t? By interpreting the law in this way, we more or less give carte blanche to men to rape women who are incapacitated through drink.

      1. I agree! That’s why I think we need to scrap the legal defence of the perpetrator ‘reasonably believed’ the woman was consenting. Because even in circumstances where the perpetrator believed the woman consented (which is almost impossible to judge objectively and leads to all sorts of problems due to the prevalence of rape myths) he still committed sexual assault, and should be held accountable for that.

      2. @kimethomas

        You can equally argue that any woman who had consensual sex while drunk can just say “I don’t remember” or “I didn’t consent”, and we are giving carte blanche for innocent men to be sent to prison when a woman regrets sex.

        What is your proposal for a law that would work?

        That is why in my view this law is a godawful mess in trying to draw thick black lines through grey areas, for which we have (I think) Harriet Harman and friends to thank. But feminist campiagners don’t do subtlety very often.

        If I have it right various superior court desicisons have refined the crude law, but it is still imo problematical.

        We have seen similar problems of simplistic law where young couples having sex at +/- 16, and the outraged parents make their daughter complain to the police, followed by the bf accepting a Police Caution to “clear it up quickly”, which stops any subsequent career in any profession requiring Vetting as such cautions stayed on the record permanently.

        That was partly addressed by the “filtering” process introduced in 2013.

        I think this “consent” law still needs to be cleaned up some more.

      3. “By interpreting the law in this way, we more or less give carte blanche to men to rape women who are incapacitated through drink.”

        I doubt it. A claim of sincere belief would probably need to be weighed against the circumstances. If the woman was comatose, a claim that the assailant “sincerely believed” she consented would not hold water unless the court was prepared to tolerate ‘/sincere beliefs’ which bear absolutely no relation to reality.

      4. You are right in that anyone can *say* they reasonably believed there was consent, but this subjective kind of threshold is common in the criminal law; this is the very nature of mens rea. With the exception of some offences where there is strict liability, most offences require the tribunal of fact to assess, on some level, what was going through the defendant’s mind at the time of the offence. Think of offences surrounding knowledge or recklessness.

        Let’s look at a similarly serious example of subjective mens rea: A defendant asserts self-defence to a charge of Murder or Manslaughter (the latter in the alternative; both even more serious crimes, I dare say), where it is claimed that he mistook an innocent object in the hand of the deceased (then alive) for a dangerous weapon. Providing the defendant’s actions against the deceased were (on an objective level in the eyes of the jury) a reasonable, proportionate response to the harm the defendant *perceived* would be inflicted against him with the item that he mistakenly thought was a dangerous weapon, then the question of his guilt would rest upon whether he believed the innocent object was said dangerous weapon and that his actions (resulting in death) were necessary to protect himself. The question would *not* be whether the defendant’s mistaken belief was a reasonable one (in the eyes of the jury on an objective standard), but whether the defendant was actually labouring under this belief at the time. Of course, the more unreasonable the belief (i.e. that the innocent object was a dangerous weapon), the less likely it is that the defendant really did believe this was the case.

        “The problem to me is this: any rapist can say he ‘believed’ the woman was consenting, even if she wasn’t”. It remains the case that any defendant to any number of charges can claim that he lacked mens rea. Offence against the person: D might claim self-defence resulting from a mistaken belief. Possession of a Class A Drug: D might claim he did not *know* he had a Class A drug in his possession. Theft: D might claim he had a reasonable belief the item had been abandoned. The list goes on and on. Some defendants will inevitably be telling the truth.

        We must look not just at the actions of the defendant, but the circumstances in which they acted (before, during and often after the offence). We can look at the surrounding evidence to help us form a conclusion of guilt of which we can be sure. In many cases, a defendant’s explanation may be laughable, and there will be evidence to support the prosecution’s case that he did not believe X (e.g. if D did not know he had cocaine in his rucksack that he bought second hand and which he claims must have been in there the whole time, why did he send a text message to his friend talking about snorting cocaine the day before he was arrested?… and so on). We cannot *know* whether the defendant believed X, but we can assess how likely it was that he held that belief. Sex cases are admittedly more complicated, but that complexity should not necessitate substituting standards that we consider sufficient (and indeed vital to the protection of the innocent) throughout the criminal law for lesser thresholds under which we can more easily convict rape defendants in order to raise the conviction rate.

        Rachel, reasonable belief is not a defence to sexual offences. It is instead incumbent upon the prosecution to prove the *absence* of a reasonable belief in consent. If a complainant to a sexual offence was too intoxicated to give his or her consent, but it happened that in the circumstances the defendant never realised the complainant’s level of intoxication, and did believe he/she was capable of consent, we would be punishing the defendant for something that might not have been obvious to him/her and for conduct that he/she might well have ceased immediately had they realised the complainant’s level of intoxication. This is at odds with the fundamental concept of moral blameworthiness that underpins the criminal law.

        If the complainant was so obviously intoxicated beyond the point at which they could consent, then it ought not to be difficult for the prosecution to convince the jury of this. CCTV footage, witness statements, and various other evidence can help build a picture of what occurred.

        Undoubtedly, there are rape myths that circulate in society and may impact on how juries interpret evidence and reach their verdicts. Such views have no place in deliberations and may serve to effect injustice, but we don’t combat social prejudices by reducing burdens and pushing for legal mechanisms designed to more easily convict defendants who do not intentionally (or indeed recklessly) harm others.

        Rachel, I am not sure you have entirely thought through your desire to do away with the requirement to show an absence of reasonable belief in consent. This would mean convicting defendants of rape regardless of mens rea, and solely on the basis of whether there was objective consent. To give just one example, what if a complainant was under age and unable to give consent, but the defendant nevertheless reasonably believed he/she was above the age of consent? Even if that reasonable belief came about as a result of the complainant telling the defendant she was over age, the defendant would still be guilty.

      5. Rachel. I am confused. In your scenario, how can anyone actually have sex with someone else without running the risk of it being deemed sexual assault.

    6. Because although you are drunk it is still YOU who has put yourself in that position… you may not make the best decisions when you are drunk but YOU STILL MADE THAT CHOICE and can not blame anyone else for that.

      1. Not if your drinks have been tampered with. Does no responsibility lie with the other party who must see that you are too drunk to be judging properly?

      2. If the a person is drunk, it is on the onus on other people around him/her NOT to initiate sex with someone whilst they are drunk, and not the responsibility of the drunk person to defend him/herself from violations of bodily integrity. If a person is merely a bit tipsy (e.g. they aren’t swaying, don’t have slurred speech, still retain conscious awareness of their surroundings) then obviously he/she’s not drunk enough to be completely incapacitated from decision making and thus it would be ok to ask for consent from the other person. However, even if the perpetrator is drunk this doesn’t absolve him/her from criminal actions they committed whilst intoxicated e.g. whether they assaulted/punched someone whilst drunk, or committed sexual assault.

    7. Following that logic nobody who is drunk is capable of consent and so all drunken sex is rape. I think the problem is that sneaking in the back door looks like the behaviour of a rapist and shouting “fuck me harder” implies consent.

      1. I think I will clarify my point. Firstly, it is virtually impossible to accidentally have sex with someone. So if one person is too intoxicated to lack control of their actions or be aware of their situation/surroundings I highly doubt they would deliberately intend to engage in sexual intercourse with anyone. If two people are somewhat intoxicated, but still are able to be aware of their surroundings/other people and have reasonable control over their actions, and mutually agree to a one night stand or something like that, then that is not sexual assault. If a person who is intoxicated (who is not drunk enough to lack control over his/her actions) preys on a person who is too intoxicated to be aware of their surroundings or situation, and knowingly engages in sexual intercourse with that person (who is unable to give consent) then that is sexual assault.

      2. Ched and Carlton’s statement (that wasn’t really challenged by the prosecution) that all three parties involved were as drunk as each other suggests this section would apply then?

        “If two people are somewhat intoxicated, but still are able to be aware of their surroundings/other people and have reasonable control over their actions, and mutually agree to a one night stand or something like that, then that is not sexual assault”

    8. Before I get into the “law” you need to first appreciate something about uk law, its that rape is an offence committed solely by men (against men or women as you need to have a penis to perpetrate it), we don’t have protection in uk law under it if we have sex with women, so the courts have had to protect men in some realms so that the situation didnt become “you had sex with me (a woman) whilst i had been drinking thus its rape” if she gets up the next morning and thinks “why the hell”. to put it simply it wasnt parliaments intention to criminalise sex after drinking and doing so is exceptionally dangerous.

      anyway onto the “law” as it were, under uk law, consent is defined (in the 2003 act) as “a person conesnt if he agrees by choice and has the freedom and capacity to make the choice”, drinking doesnt automatically remove that capacity. only if you spike their drink with alcohol or any other thing would you automatically remove the consent, and the same applies if they are asleep/unconscious (its assumed they arent consenting).
      in the case of a local authority v H [2012] EWHC 1544, Hedley J stated that to consent the individual would need to be able to weigh up, the physical task, that it may lead to pregnancy (if vaginal), some grasp of sexual health, and that they have a choice (they can refuse).

      R v Bree however gets right into it (well worth the read if you want to understand the topic), anyway the judge says how people seem to have misunderstood what that the phrase “drunk consent is still consent” meant (even though it was lacking in delicacy) noting how it parrellels to the whole drunk intention situation uk law holds (it doesnt matter).

      Following this he says that the case of Dougal (as far as I know Dougal established the principle of drunk consent being consent) didn’t say a drunk woman whom couldn’t consent was consenting none the less because shed been drinking, or that being deprives her of the right to choose (stating such as “offensive”) as some “critical” writings had claimed, what Dougal established was “that when someone who has had a lot to drink is in fact consenting to intercourse, then that is what she is doing consenting, equally, if after taking drink she is not consenting then by definition intercourse is taking place without her consent” following that, he said legislation aimed at protecting women from rape, would in the end simply prevent automous adults making personal choices they are entitled to make.
      You can drink as much as you like, you only have to be capable of understanding what you are doing… and to that length you can be both heavily drunk and capable…

      im curious though, when does it change from “protecting women” by saying you cant take advantage of a drunk women (which i would assume you support) to making it illegal for drunk women to have sex except by whom the criminal liability is on? to put it another way lets say you have a women who goes out gets drunk, says she will have sex (aka consents), agrees etc, the next say she regrets having sex.

      when does her consent become incitement for a crime under the inchoate offences, because either under the serious crime act 2007 it could be said that they encouraged a crime to be committed and that they either intended for it to occur (they wanted him to have sex with them… either they were capable of consent and thus no crime occurred, or there wasn’t any consent to the sex but them saying they did encourages it and thus they meet the requirements), or under conspiracy which requires an agreement (to have sex here), it must pursue a course of conduct that will involve the commission of a crime (having sex) and the parties must intend to do the act required for the offence and know that they are circumstances which fulfil the actus reus for the crime. that said i dont think itd ever occur, the prosecution wouldnt ever take it forwards, its just an interesting way of looking at it imo.

      PLEASE dont rely on anything i say for anything important, i am only a training lawyer, if you need actual legal advice speak to a fully trained lawyer.

  2. Thank you for your fine contribution! I saw a friend post the Guardian story on Facebook and my immediate thought was “hmm. I wonder if Secret Barrister will weigh in on this at some point.” Little did I know!

    From a moral standpoint, I always love these court steps statements. “My client has been completely vindicated.” squawks the beak. “Yes, he double-ended this young woman in a skeezy hotel in a skeezy town (and I should know, being from that part of the world), with his mate, while cheating on his girlfriend, who has nevertheless stood by him against all common sense. But there was nothing illegal about it!”

  3. I’m a Scottish lawyer, more than happy to admit ignorance of how the law operates in this area (and all others) in England and Wales. Found this useful and admirably even-handed. Thanks.

  4. Could the case be re-tried in a civil court? What would be the implications of this if it were?

  5. If the purpose of the provisions that allow complainants’ sexual history to be admissable is to counter the myths that “unchaste women are more likely to consent and less worthy of belief”, then surely allowing sexual history evidence “where the evidence relates to the issue of consent…” is rather self-defeating? That should be the one time you never admit history evidence.

    Could that be where the women’s groups’ comments are coming from? Whatever the reason for allowing the evidence, it will still have had the effect of planting the idea of X’s “unchasteness” in the minds of the jury, and therefore potentially denying a fair trial.

    On the question of whether he believed X was consenting, her behaviour on other occasions at which he was not present is irrelevant.

    On both questions, difficult to argue non-consent given the behaviour described, even without the “new evidence”. One therefore assumes there must have been cast-iron proof (in addition to the ‘new evidence’ relating to other occasions) that she said and did what he claimed on the night in question (in which case, why was the ‘new evidence’ even necessary?) – otherwise, one can only surmise that the jury succumbed to the very rape myths we are supposed to be countering.

    1. “On the question of whether he believed X was consenting, her behaviour on other occasions at which he was not present is irrelevant.”

      On the contrary. In a case like this, once the defendant’s evidence is given unchallenged, it is difficult to see how a jury could possibly convict. The actions/words alleged clearly consitute reasonable grounds for belief in consent.

      The only possible challenges to his evidence are (i) that she *didn’t* say/do that; or (ii) she *wouldn’t* say/do that. The victim has said she can’t remember anything, so (i) is out. The evidence of what she did on other occasions – particularly when the defendant wasn’t present – must be relevant to (ii) – whether she would do/say that.

      The issue for the Court under s41 is whether the behaviour is so similar as not to be explicable as a coincidence.

      1. Is it not possible that this just shows a pattern of her saying that in sed. She could have been on auto pilot just repeating the words she always says. Doesn’t mean she consented

    2. More the case that on at least two other occasions – in close proximity to the incident in question – X behaved in essentially the same way as she did with Evans to a degree that two other men believed she was enthusiastically consenting to sex in the same way that he did.

  6. Re point 6: Firstly did Evans say she asked him to penetrate her harder etc and thus implying consent in the original trial? If not seems suspicious to throw in this at second trial. Secondly regardless of legal basis unfair to allow as permissible evidence incidents with other men where consent was given. Does not shed any light on Ched Evans incident.

    1. Could not Evans side have got to these two men and told them what she said. And also if her previous sexual history made a difference. What about his?

    2. Yes he did state she said that in the first trial.

      Not only that but apparently most of the hotel heard her.

  7. If the court of appeal has not ensured that strict criteria has been met in allowing evidence to be heard or has interpreted previous case law incorrectly – could this ‘fluff up’ lead to this case being used by defence to argue for similar evidence to be heard in future cases?

    I would be interested to know if complainant supported the re-trial, If she was given a choice by CPS, I know you can’t answer that.

  8. I think the onus of proof should be on the defendant to prove that he/she took reasonable steps to ensure that a) the victim was capable of giving consent and that b) he/she took steps to ensure ask for consent and that it was not withdrawn at any stage. I also think it should not be relevant whether or not the defendant reasonably believed the victim was consenting or whether the sexual behaviour of the victim in that case was similar to others in the past. Even if the defendant genuinely believed the victim was consenting, as long as it the facts show that the victim did not give full informed consent then the defendant should be found guilty of sexual assault. (because even if defendant was ignorant of the fact that the victim didn’t give consent, the perpetrator still sexually assaulted him/her. Of course, I believe such defendants should be treated with a bit of leniency when determining punishment due to their lack of intent to sexually assault a person) I also think the law should change the way it treats consent by intoxicated people. The standard for consent should be that the person who is giving consent must have full capacity to make a fully informed decision to say yes or no and withdraw within a reasonable amount of time if they wish to. (anything less would be horrendously insufficient in protecting a victim’s right to bodily integrity) If a person is intoxicated they do not have this capacity, therefore the law should treat any verbal assent by intoxicated people to have sex with another person as irrelevant and not proof that the victim consented to sex.

    1. “…I also think it should not be relevant whether or not the defendant reasonably believed the victim was consenting…”

      How far are you going to take that? The defendant can never *know* whether the victim actually consented.

    2. 1) Reversing the burden of proof would mean that every sexual encounter would be prima facie rape / sexual assault, unless proof could be adduced otherwise. Each participant would in practice therefore need to keep detailed logs (or perhaps recordings?) of every sexual encounter they ever had, presumably signed by the other participant to confirm their agreement. Not terribly practicable or conducive to free consensual sexual interactions between adults, I suspect.

      2) A reasonable belief in consent is relevant precisely because consent is an internal personal decision, and people can only base their interaction on external manifestations. A person can give an enthusiastic “Yes” and not consent (or likewise, say “Pickle” and consent), but the other party is only able to base their actions on the words and actions available to them. Making a reasonable belief in consent would mean it would be impossible for any person ever to be sure that they were not committing rape / sexual assault in any sexual act. Not terribly practicable, or conducive to free consensual sexual interactions between adults, I suspect.

      3) The standard for consent is already broadly that people must have the capacity to make an informed decision as to whether to agree to an act. Intoxication only prevents a person from giving consent where it is at such a level that they no longer have that capacity. The question when someone has been drinking is do they still have that capacity. If you are suggesting that the fact that a person has had a drink should in itself mean they are not permitted to consent, despite maintaining capacity to consent, then that would be a draconian restriction to place on the freedom of people to determine their own sexual conduct. And would, of course, apply to both participants, so that two people enthusiastically having made a decision to participate in sexual intercourse to which both are choosing to consent to would both be guilty of rape / sexual assault of the other. Not terribly practicable or conducive to free sexual interactions between people, I suspect.

      Consent is complex and important. Seeking to impose superficially easy ‘solutions’ to difficult problems without considering the detailed consequence is rarely helpful or useful. It serves only to make it harder to implement carefully thought through reforms to help the victims of sexual assault.

      1. My comment on reasonable belief was that it should be scrapped as a defence to sexual assault and should instead be a mitigating factor in sentencing. Because if in reality the victim did not consent then the perpetrator still committed sexual assault, regardless of their intent.

    3. Surely, “fuck me harder” is consent enough isn’t it? As for the point that reasonable belief should be irrelevant, doesn’t that makes it virtually impossible for anyone to have sex? You cannot possibly know what is in the mind of someone unless you believe in psychic powers. You can only infer that they consent based on their actions. Finally, surely both parties must give consent when they have sex, are you seriously saying that people who have drunken sex are raping/sexually assaulting each other?

    4. ‘I think the onus of proof should be on the defendant to….’ which would violate the basic principles of our legal system going back centuries. This is a dangerous road to go down. It infringes on the presumption of innocence and the burden of proof which are the probably the most important legal principles in a criminal trial. A defendant’s life can be ended, effectively and their most basic human needs are deprived if he is found guilty. That is why the burden must rest on the prosecution in all criminal cases.
      Secondly, ‘the standard of consent should be that the person who is giving consent must have full capacity’. 1) Don’t both parties have to consent? 2) ‘Full capacity?’ so if your partner came back from a night out with the lads or ladies and is a bit tipsy you have committed a sex crime? 3) You think having a few drinks invalidates any notion of verbal consent? 4) 5 pints for one person could have same effects as 1 for another. You don’t allow any leeway for this.

      We’re lucky you don’t make our laws.

      1. No because the prosecution would still have to prove that there was no consent given or that the defendant did not ask for consent and/or the victim was incapable of giving consent. The burden of proof doesn’t change, my opinion on the onus of proof would be relevant if the defendant wanted to prove that sex was consensual. It is not all that unusual in criminal law. In murder cases, for example, the prosecution still has to prove that the defendant beyond reasonable doubt committed murder but if the defendant wanted to raise a defence it is their onus to prove that the murder was done in duress, for example. And also yes, it doesn’t matter how many drinks you’ve had, if you’re drunk, you can’t give consent because you don’t have full capacity to be in control of the decisions you make. I never said getting drunk in itself was a crime. (if that’s what your second question was asking)

      2. Rachel, duress is not a defence for murder. There is a burden on the defendant when making a statutory defence e.g. self-defense, duress, automatism, insanity, etc. and it’s to prove on the balance of probabilities. Your comment and views are dangerously flawed and without any knowledge of the legal system and laws. Your idea is to make two people who have had a few drinks guilty of mutually raping each other at the same time. The overwhelming majority of men and probably the majority of women in the UK, who’ve had sex, are rapists in your eyes.
        Secondly, the statutory rape offence is a 3 part offence where the prosecution must prove all elements beyond a reasonable doubt ‘1-(1) A person (A) commits an offence if—
        (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis
        (b) B does not consent to the penetration, and
        (c) A does not reasonably believe that B consents.
        (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

        Part (2) already covers your point. It does matter if he/she takes steps to ensure consent.

      3. Firstly, it is virtually impossible to accidentally have sex with someone. So if one person is too intoxicated to lack control of their actions or be aware of their situation/surroundings I highly doubt they would deliberately intend to engage in sexual intercourse with anyone. If two people are somewhat intoxicated, but still are able to be aware of their surroundings/other people and have reasonable control over their actions, and mutually agree to a one night stand or something like that, then that is not sexual assault. If a person who is intoxicated (who is not drunk enough to lack control over his/her actions) preys on a person who is too intoxicated to be aware of their surroundings or situation, and knowingly engages in sexual intercourse with that person (who is unable to give consent) then that is sexual assault.

      4. Also yes, the statute says that what steps the defendant took to ensure the victim consent is relevant. And obviously, the prosecution has to prove that the defendant did not take steps to ensure that the victim consented, which is relevant in proving that the victim did not, in fact, consent to sexual intercourse. The defence, of course, should have the onus of proving otherwise if he/she wants to convince the court that there was no sexual assault. What I am a bit worried about is how the court and jury understands the issue of what constitutes consent (which is why the issue of intoxication was raised) and the fact that defendant Ched Evans can argue that there was reasonable belief that there was consent in that instance because of her past sexual behaviour

      5. I think that though the woman did seem to give verbal consent, the issue is whether she was intoxicated enough to not have the capacity to give consent. If she did have the capacity to give consent, and she verbally said yes to sexual intercourse, then there is no sexual assault. However I still believe that the crucial issue is whether consent was GIVEN, not whether the perpetrator reasonably believed the victim was consenting. Hence I don’t believe Evans and other people accused of rape should be able to use the defence of they had reasonable belief that the victim was consenting as a way to exonerate them.

      6. Rachel:

        “The burden of proof doesn’t change, my opinion on the onus of proof would be relevant if the defendant wanted to prove that sex was consensual. It is not all that unusual in criminal law. In murder cases, for example, the prosecution still has to prove that the defendant beyond reasonable doubt committed murder but if the defendant wanted to raise a defence it is their onus to prove that the murder was done in duress, for example.”

        Forget duress; if the defendant honestly believed on reasonable grounds (ie reasonably believed) he was acting in self-defence, he is not guilty of murder or masnlaughter. That is the direct equivalent. It is your idea that an honest belief reasonably held should not provide a defence that is unusual in criminal law.

      7. Rachel, for the umpteenth time you have moved the goal posts. We can all see how you said that drunken consent isn’t consent because you do not have the capacity to consent and now you are saying that it is possible to have consensual sex if you have consumed alcohol.
        You never make any qualification on your statements hence the countless replies on your posts, many of which say the same things about what you have said.

      8. I haven’t changed my position, merely clarifying what I meant when I said you cant give consent if you’re drunk. It is merely an issue of language/words used, nothing more. I don’t see your point in claiming that I moved the goal post. And R, putting aside your claim that my belief that we should scrap using reasonable grounds is unusual, the rationale behind is that potentially the jury, who decides whether or not the defendant had reasonable grounds to believe that the victim consented, may be affected by their own mistaken belief in rape myths and decide that the defendant had reasonable grounds that the victim consented when in fact the victim’s behaviour/actions/words do not at all imply consent in any way. Unless, of course, the law is very clear about what constitutes consent

    5. Surly the first couple of lines of your reply would change forever the very basis of the British legal system (call it what you will) ‘innocent until..’

    6. And which party would punish in the event both were intoxicated at the time each apparently gave the other consent?

    7. Perhaps one should be breathalysed and sign some sort of contract. With a 30 day cooling-off period. Your method would at least have the advantage of solving the problem of global overpopulation.

    8. It’s is always for the Prosecution to prove whether he raped her not for the Defendant to prove anything. The defendant is there to create a ‘reasonable doubt and there obviously was.

    9. You need to be very careful with a statement like “onus of proof should be on the defendant”.
      It take away the founding pillar of the UK judicial system – that of innocent until proven guilty.

  9. Thanks for this.

    “Nothing good about our society”

    I think it’s good that the Court of Apppeal gave Chedwyn a chance to crear his name and that the second jury weren’t influenced by Guardian-think

  10. I think it should be on the onus of the defendant to prove that a) the victim had capacity to consent and that b) he/she took steps to ensure that the victim consented and did not withdraw consent at any stage. Of course, the burden of proof is on the prosecution to prove otherwise, but if the defendant wants to prove his/her innocence I think these are the only two elements that are relevant (other than the fact that he/she didn’t actually engage in sexual intercourse with the victim). Also I don’t believe that it is relevant whether or not the defendant actually reasonably believed the victim was consenting, as if the victim in fact did not actually consent then the defendant still sexually assaulted the victim. I believe however, that in such instances the defendant should be treated with some leniency due to a lack of intent to sexually assault the victim. Moreover, I think the law should be changed in regards to how intoxicated consent is treated. I think that there needs to be a high standard for consent, in that the person who is giving consent must be fully informed/aware as to what they are consenting to and have good capacity to make an autonomous decision. If a person is intoxicated I don’t think a person is fully aware of what they are doing nor would he/she the capacity to make a completely autonomous decision. Hence a court, I think, should not treat ‘drunken consent’ as consent that would be sufficient to establish that the victim was not sexually assaulted. Anything less would be horrendously insufficient in protecting people’s right to bodily integrity.

    1. People go out and get drunk. Go on to nightclubs. Some go on to have sex with strangers. Youre saying just drunk is not consensual?!. My god then thats every sexual encounter! Thats why it was about intoxication / passed out.

    2. Thank you Rachel, for your very clear comments.

      With regards to all these men, who always turn up in the situations, talking about contracts before having sex and as if consent is the most excruciatingly impossible thing to achieve let us remember that this only comes up when someone makes a complaint of rape or sexual assault. Loving partners who have sex sober ever, are not going to find themselves in that situation.🙄 This is about Rules for Drunken Fumblings with Strangers in Skevey Hotel Rooms. A relatively small percentage of all instances of sexual activity.

      I’m in Canada and I could be completely out to lunch on how the law works here. But my understanding is that you cannot legally have sex with someone who is very very drunk. In other words you’re supposed to just not do that. Also that there was an intention to take advantage of the victim’s drunkenness would be implied by the presence of another guy there. But I could be very mistaken about how the law works here. I’ve never heard the phrase “drunk consent” before, though. If it is the case that a drunk person under the law cannot consent in Canada and the US (we’re usually the same as them) then we can certainly see that that is not leading to some barrage of rape false convictions in North America.

    3. Sexual Offences Act: “Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.”
      What steps do we suppose Evans took?

      As for the OP, fair enough – if I thought there was a strong possibility that both Ched Evans and his two witnesses were telling the truth, I’d probably think the right verdict was reached. That’s not to say I agree on the reading of s41 – I don’t see anything at all unusual in the behaviour described, let alone thinking it so unusual that it had to be admitted; not only is it a selection of things lots of people actually do, the combination conforms perfectly to a porn-star fantasy version of sex.

    4. My difficulty with Rachel’s thought process, is that it leaves no room for a defendant who has had fully consensual sex, then for some reason the “victim” changes their mind and claims that they did not consent.
      This is not uncommon when a “victim” realises in the cold light of day that their regular partner may find out that they were unfaithful and tries to mitigate the act by claiming they were raped.
      In the ched Evans case, the woman did not go to police to say she was raped – she went because her handbag had gone missing.
      The police and CPS made the decision to investigate then prosecute the case as a rape.
      Secret Barrister makes this point in his blog:
      ►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.◄

  11. Succinct, expert and really a thoroughly good summary. Thank you. I’m going to have to direct other people this way 😉

  12. Whatever the rights and wrongs are regarding today’s verdict, Ched Evans does not hold any moral high ground in this matter. I expect any woman I know would dump their partner, husband, etc. in this situation regardless of any rape accusation. He and his supporters should reflect upon the mistakes which Evans says he acknowledges and the fact he is very lucky to have such a forgiving fiancée, when he has given her a big reason not to forgive him.

    1. Well, he holds the moral high ground that he and his family have been the victim of a huge abuse campaign on the basis of “You are a rapist. The law says you are rapist. Accept the verdict and accept your fate”, and how now been found Not Guilty.

      Following that the campaigners have shifted their rhetoric to “The law is wrong. How can we change it so that he is still guilty.”

      That’s a lot of moral high ground, albeit mainly by activists camping out on the moral low ground.

  13. For sexual history of the combination to be used, the legal team should place the request to the court six weeks prior to the trial. This should have been mentioned as a procedural point.

  14. What about the question of compensation ?

    If the fresh evidence convinced the jury that Evans is not guilty of rape, then surely it is a miscarriage of justice that he served 2 years in jail, and ruined his career ?

    1. My (unqualified) understanding is that, people are only entitled to compensation under the Criminal Justice Act ‘if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence’.

      Based on the original trial, the facts of the case, and the nature of evidence presented leading to the acquittal, I think Mr Evans would have trouble arguing he was found innocent, beyond reasonable doubt.

      Anyone qualified, please feel free to correct me 🙂

  15. Thanks, very informative argument.

    To split hairs, he hadn’t quite served his full five year sentence when the appeal threw out the original conviction. If somebody were convicted a second time in those circumstances, what would be the likely sentence?

  16. Thanks for the legal (and as it happens common) sense – not that it will satisfy the mob!

  17. I’m not sure I accept your reasoning for why no precedent has been set. Surely any defendant in a similar position could attempt to replicate this approach to getting sexual history into evidence? That’s not the same as suggesting the approach involves a change in the law.

    1. No precedent has been set because the avenue the defence team took was already available to anyone else. It doesn’t now give carte blanche to bring past sexual history up in any trial – it will still be assessed on a case to case basis.

    2. The explanation was that the legal process already existed for the admittance of such evidence –
      “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”.
      At any point since the 1999 act the same process could have been followed in attempts to have such evidence heard. Nothing changes as a result of the case, the status quo of the 1999 act remains.

      It may well be the first example of the existing laws being used in such a way (I have no idea if this is the case) but rather than setting an example/guide for future cases (a precedent) it is simply following the pre-existing legal framework.

      At worst it could described as having raised public awareness of a potential approach as opposed to actually creating a new one.

    3. There was some research done on memory blackouts after drinking by Jellinek back in the 1940s. In one experiment he gave a group of students alcohol until they got so drunk they passed out. In the morning for those how had memory blackout he went back over his audio tapes and identified the last time point they remembered. He found that some were constructing, and competently refuting, sophisticated philosophical arguments as mush as two hours beyond their last memory. Also the memory blackout often extended back into the time when they were not drunk and were still functioning entirely normally.

      To impose the standard that consent not remembered is consent not given would be unjust. To convict a man of rape because he had consensual sex with a woman, who then went on to get very drunk and as a result could remember nothing of her earlier consent would not be right.

  18. Interesting post thank you. Given that the victim had no memory though I wonder what evidence (other than video) could ever prove rape beyond reasonable doubt in this situation? It seems that unless the standard for too drunk is the point at which memories are not laid down then it would be impossible to show?

    Also I wondered if you can clarify what the point is where drunken consent is no longer consent? Or is it only when a victim is literally incapable of consent

    1. If you make an unwise decision whilst drunk – even a decision that you would not have made whilst sober – you own it; so consent given whilst drunk is still consent. If you were so drunk you were incapable of making a decision, then you can’t give consent.

      This is not peculiar to the law relating to rape.

      1. OK but how is this state “so drunk you were incapable of making a decision, then you can’t give consent” determined? ‘Make a decision’? What does that mean? Are you held to be unable to consent only when you’re in a state such that you’re completely immobile? I don’t mean to be snarky, but this is awfully vague.

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

    Because that is the law.

    The law also states that you are innocent until you are proven guilty you absolute hypocritical arse end of a biased prick!!!

    1. Anonymity is meant to act as a protective cloak, to encourage other victims to come forward; hence the vast numbers who came forward about Saville and the others. Naming ‘suspects’ or ‘defendants’ is meant to act as a deterrent to those who may wish to carry out such acts. It is not useful to insuLtd anyone, by the way.

    2. Defendants were granted anonymity between 1976 and 1988. The law was changed because the vast majority of rapists are repeat rapists and anonymity was helping to shield them from justice. It is not usual for defendants to be given anonymity in criminal cases and there is nothing inherently unfair here.

      The reason rape victims are granted anonymity for life is amply demonstrated by the harassment they continue to receive from both perpetrators and random frustrated young men who seem unable to build an identity for themselves without devoting a quite extraordinary amount of energy into demonstrating just how much they despise women.

      One day we might live in a world where no one needs anonymity. We don’t live in that world yet.

      1. I mangled that first sentence. The vast majority of rapes are committed by repeat rapists. Whether a majority of rapists are repeat rapists is still an open question but it is probably not a “vast” majority, estimates vary from 1/3 to 2/3, although an important caveat is that research into undetected rapists is usually conducted with young men so we only have data on how many rapes they are responsible for by their mid-twenties, on average. This is a useful reference which combines 4 studies and references others:

      2. You should read The Secret Barrister’s article on anonymity for defendants. He is in favour of anonymity, but he’s right, it is the law however wrong that may be.

        There is a problem with the “encouraging more victims to come forward” thing. Yes, it may encourage genuine victims, but it also encourages copycat complainants. There’s a reason why one loch in Scotland has more sightings of sea serpents than other lochs in Scotland and it’s to do with publicity. So the very fact that would-be false accusers are being told who to accuse puts suspicions on all further allegations made against the publicized name.

      3. This is very interesting information.

        On the harassment of rape victims, it really struck me in this case, how weird that is. All the strangers who are not personally involved are willing to devote all this time to harassing this one little person. You know, not a famous person who did some publicly vile thing (Trump, say) but just a random member of the public. And I think we all know why. Yes, misogyny. But step back from that a moment and think about the fact that in our society this is normal. Some crime victims are threatened, insulted and exposed. This is truly bizarre. And yet excites virtually no comment in the news media. I hope it gains greater attention in the social sciences.

      4. “The law was changed because the vast majority of rapists are repeat rapists and anonymity was helping to shield them from justice.”

        Presumably you have some statistics to back that claim up?

  20. Hang on a second. Every single statement in that article could be swung the other way. It has been written with an agenda. Turn the verdicts around.
    If he’d been found not guilty and then after a retrial found guilty we would all be saying justice was served and hooray for the legal system, and rightly so.
    But because he was found guilty and now not guilty, he is STILL GUILTY? What? By suspicion? No! That is wrong. The prosecution cannot have it both ways. It’s bad enough that “shit sticks” without the “Secret Barrister” proclaiming it. This article should be wiped off the Internet. F@cking disgrace.

  21. Well said… ‘Social Justice’ from both sides of the screaming argument, should leave cases like this alone. Unless they are in possession of all the facts. But who needs facts when righteous indignation and opinion are king, eh?

  22. More Marxist crap like Milliband who wanted him to never play again. “I wouldn’t employ him etc” (Then Labour Leader) as if the guy hadn’t already paid a high enough price.

  23. Innocent until proven guilty, I thought that was the case? Or is that just a media hoax?

    I wanted some balance.

  24. I don’t quite get point 5, could you explain?

    I understand that a not guilty verdict only means that the jury weren’t sure that he was guilty. But I don’t see why it’s unreasonable to bemoan that decision on the evidence which was presented without suggesting bad faith from the jury. Reasonable people can disagree on the evidence, and I think saying that based on the known evidence you would have found differently (and think the jury found as they did for unfortunate reasons) doesn’t seem a myth which needs busting to me. What have I missed?

  25. Helpful blog. I am a) not a lawyer; b) not read the judgment:

    Firstly, I agree with the ‘proved innocence’ point and important to make in context that she has been accused of lying but worth reiterating (as one other person pointed out) the law does say that someone is innocent until proven guilty and must be treated as such. I thought one other legal commentator put it beautifully: it is perfectly possible in a rape case that both parties are telling the truth.

    But, secondly…Is it only me who thinks that the description of her behaviour is so common that it is setting the threshold for ‘similarity’ very low in terms of when such evidence is admissible? While I am absolutely not saying that he did this: if you were going to make up what a consenting woman would look like, this is it (it is not something unique to her). And it is hardly surprising then that similar partners can be found who said she did / said exactly this. If this is true then the only question that is relevant (surely??) is then: is it true that she said this (and so giving CE reasonable grounds for believing she was consenting)? While it is fair to bring that up at the trial, her sexual history is irrelevant to this question and there should not be a need to question her on it because (I would think ?!) most women have said this at some point, many regularly.

    IF it is agreed that this is setting the threshold low, then surely it DOES suggest such evidence could be used more often?

  26. ‘Innocent until proven guilt!’.. He was found NOT GUILTY based on all the evidence at our disposal by a jury of his peers, therefore he is legally innocent by definition!
    That is a fact now! Deal with it people!!!

  27. Thank you for this very informative article. One question. The result seems to suggest that there is/can be a sort of personal style – particular words – to giving consent. The women was consistent in her words and thus could be presumed to be giving consent. Is this really what the law intends?

  28. My only issue with this is that my understanding is that Ched Evans description of what happened that night has been on the internet in full detail via his own website. Therefore I struggle with the “new evidence” since there is every chance it is tainted. Particularly as these two new witnesses will presumably pocket 25k each.

    1. From the court of appeal judgment, which allowed the retrial, the judges considered what information was in the public domain. They were then notified, by the Criminal Cases Review Commission, that further info as to the Evans/X incident was available on the internet earlier than the judges thought. My understanding is the appeal judges considered whether the new witnesses’ evidence had been tainted could be tested at the second trial. As regards the payment I believe at least one of the witnesses told the jury he wasn’t seeking the money and couldn’t accept it as he would lose his job.

    2. One (if not both) witnesses were interviewed by police before the original trial, but not called to testify.
      One claimed he was not asked to provide the details he went on to give to the defence team… something I have experience of.

  29. Its a strange one.
    An intoxicated female saying “F me harder”. Ched may have taken this as consent……but it was midway through the sexual act. Was he just Crossing his fingers in the run up.

    Also, the female had sex before and since, has consistent mannerisms and preferences. She was able to speak. What does this prove?
    That she wasn’t blind drunk? I think not.

    As recent political event ps show, the British public doesnt always get it right. And ched gets the best justice miney can buy.

    1. I disagree that he got the best justice that money can buy, as the CPS have a bottomless pit of tax payers money to call upon and frequently do so to try and ensure their case sticks.
      Despite this, and despite the original verdict, they have now been shown to be wrong in the eyes of the most recent jury.

      Only Ched and Clayton were able to remember what went on in the room, the victim could not remember events before or during the time, despite other witnesses claiming she was able to follow instructions – in the taxi.

  30. Fundamentally I don’t get it. It does seem to boil down to the fact that if you’re a woman a) you mustn’t get drunk and b) you mustn’t have had consensual sex with people. Because when drunk up to a point that your ability to give consent has gone, it is conceibable that you might use words similar to those you used in consensual sex. And the person you are with might then argue, ‘Gosh I genuinely had absolutely no idea that his person was very drunk and I really really did think that they were capable of making a judgement about whether they wanted to have sex. (So unless you are sober and a virgin be very afraid about going to the police to report sexual assualt and rape.)

    1. Hmmm.

      The woman was capable of giving consent to sex with Evans’ friend (who was found not guilty of rape in the original trial).

      For that reason the claim (on which basis Evans was found guilty if I am right) that she was too drunk to be capable of giving consent to sex with Evans has always been questionable.

  31. This is all very sensible save for the last comment with which I disagree profoundly. Its says lots of good things about our scoiety:

    – men and women can still have lively drunken sex when young without being assumed to be rapists or lieing sluts
    – but men can no longer expect a free ride if they do rape or newrly rape women
    – and victims and possible victims of sex crimes will be protected, even at public expense
    – that when juries or legal process does make mistakes our system remains flexible enough to continue to allow potential miscarriages of justice to be rectified and dispassionately assess evidence in the face of media hysteria

    I agree it also says some bad things about some people and how our media and special interest groups operate. But overall I think it says some good things about how our legal system operates and this reflects well on our liberal broad minded society

  32. A really interesting and informative comment. I had understood that where intoxication was shown it was down to the accused to prove that they obtained consent, otherwise the default verdict would be rape. Have I got that one wrong?
    An area that concerns me is a scenario where a woman has drunken sex and is deemed to have been raped because she is incapable of giving consent, but then drives away and is deemed culpable of drunk driving. She is thus victim and offender in the eyes of the law whilst in exactly the same state of mind.

  33. At tthe first trial when found guilty,he was found guilty the other chap went free for doing the same thing, either both guilty or both not guilty, verdict not guilty.

  34. Thank you for this very useful summary. I have one comment and some questions.

    Regarding whether or not this sets a precedent, while it technically does not because it exploits a loophole in existing law, surely it does set a precedent for how that loophole may be exploited?

    It also seems to me that allowing this evidence to be given but then not allowing the jury to be told about the £50k reward on offer – before these men came forward with this new information and after Evans’ original testimony was available online – is extraordinarily unfair. This woman was viciously revictimised by the court in a way that is only allowed under exceptional circumstances but relevant evidence about the behaviour of the witnesses and the defendant were excluded. It doesn’t matter what the law currently says or how it routinely operates, this is manifestly unfair.

    Now I’d like to ask why McDonald was not called. He contradicted Evans’ testimony on one key point which seems to be highly significant. A key question is whether McDonald’s text message was an invite or a brag. Doubt is cast on the idea that it was an invite by Evans’ use of subterfuge to gain entry to the room and McDonald’s leaving shortly after Evans arrived. Further doubt is cast by the difference in their testimony. Evans claims that McDonald asked her if he could join in. McDonald claims that Evans asked.

    Furthermore, McDonald spoke to the receptionist before leaving to ask them to look out for her because she was in a bad way. Evans snuck out via a fire exit. The reasons for McDonald’s concern for her are important. I cannot see any justification for McDonald not being called to give testimony in the retrial. He was the only other person present, omitting his testimony seems inexplicable.

    I would also like to know why charges of voyeurism were not brought against Evans and the two filming from outside. Arguably Evans has a defence against voyeurism if he can claim that McDonald’s text was an invite. But if it was, McDonald would have to defend himself against a charge under s4 of SOA 2003, given the original jury’s view on her state of intoxication at the time.

    I know that these things can be difficult to comment on but I would appreciate any insights.

  35. Hi tsb, two questions:

    You say: “There was a case for Evans to answer” – any chance you could extrapolate on this point as I don’t see why the case was brought to begin with. As you say, the girl made no complaint and so where was the evidence that a crime had been committed? They seem to leap to the conclusion she was raped merely because she could not remember events of the night before. Black outs with alcohol are common. As one of the witnesses attested to, this girl had them before and had not recalled having sex the night before.

    Which brings me to my second question. This man, one of her exes, said that he went to the Police on the day Chad was originally found guilty and imprisoned. Should something more not have been done then? It perhaps would have stopped him spending two and half years in prison.


    1. I’m not lsb but I’ll reply.

      She woke up alone, having pissed the bed, her handbag missing and no memory of what had happened. She contacted the police about her handbag and mentioned a concern that she might have been spiked. She remembered everything up until being in the kebab shop and knew she had not had that much to drink compared to her typical drinking on a night out (she had only been out for a fairly short time after finishing work). There is no suggestion that either McDonald or Evans spiked her but that does not mean someone else didn’t.

      Charges were brought because there was evidence that she was too drunk to give valid consent and that the defendants knew this; McDonald asked the receptionist to keep an eye on her before he left. There was further evidence that Evans was an uninvited participant because he lied his way into the room and snuck out of a fire escape, despite the room being booked under his own name. Further evidence of criminal conduct is Evans leaving two men outside to film through the window, an offence under s67 & s68 of the Sexual Offences Act 2003, as was his entering the room uninvited.

      1. There was – just about – a case to answer. Although how on earth any jury could think that rape had been proved beyond reasonable doubt remains beyond me.

        Looking at the likelihood of a conviction (even with the now well known suite of unpleasant and unfortunate circumstantial evidence) – and how this has impacted the victim – who never even alleged rape – I would seriously question the public interest in bringing this particular case.

        It seems to me it was brought for political reasons – to prove that law around drunken consent had changed beyond the recognition of most people. And to be seen to be pursuing even flimsy rape cases. And as a result a number of young people have had their lives needlessly ruined. And it seems that we have now also undermined efforts to get more rape victimes to come forward because the hysteria has obscured the exceptional circumstances of the case.

        The first jury made a perverse decision (mainly because the nature of the case – with two defendants – allowed the the option of a ‘compromise’ decision – always dangerous). As a result I cant help but feel the CoA has stretched the rules to allow the case to be looked at again. This too could have adverse consequences in other cases where victims prior behaviour is now more likely to be put before the court.

        All in all it seems now to have been an unfortunate and counterproductive case to have brought forward. I dont think this was particularly unforseeable.

      2. IIRC she was tested and there were no evidence of anything other than alcohol, cannabis, and cocaine in her bloodstream. Saying that she was “too drunk to give valid consent” and yet there is no evidence that she drank less than she said she normally would is a contradiction.

  36. I’m no legal expert on rape but isn’t there a requirement for consent to sexual intercourse to be ‘recent and ongoing’? How was the complainant considered incapable of giving consent to Evans seconds after giving ‘recent and ongoing’ consent to McDonald? Surely, the judge in the original trial should have directed the jury on this? Either they were both guilty or both not guilty.

    1. I wasn’t on the jury, but I suspect the difference of opinion at the original trial came down to ‘reasonable belief in consent’. MacDonald had spent a considerable amount of time with her in a taxi to the hotel where he could have come to the conclusion she wanted to have sex with him – but Ched Evans began having sex mere moments after meeting her for the first time. Their circumstances were the same during the act, but not before it.

      1. I take your point but consent has to be ongoing. If she was adjudged to be capable of giving consent whilst having sex with McDonald then she must have been capable of giving consent, seconds later, to Evans. If not, then se wasn’t capable of giving ongoing consent to McDonald.

    2. The jury had to answer two questions: was consent given and, if not, did the defendant have a reasonable belief that consent was given.

      The jury concluded that neither had consent but that McDonald alone had a reasonable belief. Their reasoning presumably rests in part on her willingly accompanying him in the taxi. Evans bursting in the room uninvited when she was already in an extremely vulnerable position and by his own testimony not speaking a word to her before, during or after, seems likely to also have influenced their verdict.

      McDonald’s testimony states that Evans asked her if he could join in. Evans denies this. It is impossible to know who is telling the truth but Evans continues to deny that he personally asked for consent.

      1. I think that misses the mark by some margin. In the original trial, the complainant was adjudged to be incapable of giving consent to Evans. Given that consent must be ongoing, how could she have been adjudged capable of giving McDonald ongoing consent if, seconds later, she was deemed incapable of giving consent to Evans?

      2. David:

        “If she was adjudged to be capable of giving consent whilst having sex with McDonald…”

        She wasn’t necessarily. McDonald could have had a reasonable belief that she was capable of giving, and had given, consent to sex with him. That gives him a defence *even if* in fact she was incapable of giving consent.

    3. You’re confusing consent as a matter of fact (which you’re right is very problematic if applied differently to the two defendants) and their subjective belief in consent, which can be based on any number of circumstances whether historical or otherwise.

  37. Excellent summary. As usual the press are leading folk up the garden path. A few observations:

    Evans told the police that he and his friends “could have any girl in that club” and yet left empty handed!

    The complainant insisted on following Macdonald from the kebab shop to his hotel.

    What kind of charachters watch and try to film through a window while people they know are having sex?

    If Evans and Macdonald had not left the girl to wake up alone and naked the following morning might things have been different?

    I note that she initially claimed her drinks had been spiked but I don’t think that claim was made in court.

  38. It’s the scientific myth at the centre of this case that really needs busting. Plenty of research has been carried out that shows that some people are prone to memory loss after relatively moderate drinking and that others simply don’t suffer memory loss even after much larger quantities of alcohol. A loss of memory does not imply that the person was incapacitated at the time, nor does a decline in a persons sense of balance, which was another false metric used by the prosecution.

    We need a better understanding of the effects of alcohol – it reduces reaction time, makes people clumsy and unsteady on their feet, and makes people engage in riskier activities than they would undertake sober. It doesn’t diminish capacity unless the person is actually unconscious, which is very rare. If alcohol did incapacitate with such frequency then our cities would be full of people unable to find their way home at the end of a night out. There may be one or two people like that of a weekend night in a city centre but the percentage of drunk people who are incapacitated is probably less than one in a thousand.

  39. A question; the defendants ( for there were two) are the only ones who claim that she said ‘fuck me harder’ on this occasion of the alleged crime. I am curious as to how do a jury determine this to be true and not a lie?
    After all one took a young woman described by the male hotel receptionist as being ” out of it” to his hotel room where he had sex with her after texting the second defendant “I got a girl” implying their intent.
    Their own drunkenness can not be offered as a defence here. You commit a crime whilst drunk, it’s still a crime. If a crime is committed on you when your drunk it is still a crime.
    The second defendant came into the room without knocking and proceeded to have sex with the complainant without speaking one word to her to establish consent. He conveniently claims his co-defendant asked.
    He later allowed(?) his girlfriend who he was cheating on, to contact the receptionist to ask him to change his statement, and public ally posted a reward for *help in his exoneration of a crime .
    How could any jury believe this man or his ‘girl-getting’ friend?
    How can they also believe that a witness who allowed his first statement to be published on Chads’ website could not have known about the 50K reward for help offered there?
    Why was the attempted bribe to change witness testimony not admissible? Surely it shows form in the method with which the ‘new evidence’ for a retrial was procured?
    Also can and will the girlfriend be prosecuted for trying to interfere with a witness?

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