The acquittal last week of footballer Ched Evans at his retrial for rape has, if media reports and trigger-happy talking heads are to be believed, set a dangerous new precedent in cases of sexual violence.

“A disturbing precedent that could deter women from reporting attacks”, reported the Daily Mail. “A throwback to the 1980s” thundered the Guardian. Similar sentiments were expressed by former solicitor-general Vera Baird Q.C., who solemnly advised BBC Radio 4’s Today programme, “This has set us back 30 years”.

Ched Evans was a star player at Sheffield United.

The source of concern was the ruling, which lay at the heart of the Court of Appeal’s decision to quash Evans’ original conviction, that the complainant, X, could be cross-examined, and evidence could be called, about previous sexual activity that was alleged to have occurred with two separate males in the period before and after the alleged rape.

The bare facts of the case are well-rehearsed, and set out in more detail in the Court of Appeal’s judgment In short, on 29 May 2011, Evans and his co-accused, Clayton McDonald, had sex with X, in a hotel room. McDonald had met X on a night out, taken her back to the room, and had texted Evans, who promptly 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 five years’ imprisonment.

So how on earth does a complainant’s previous sexual behaviour come into it? In general, the answer is that it does not. Section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits questioning a complainant in a sex case about their sex life. The purpose, sensibly, is to destroy the myth that “unchaste women are more likely to consent to intercourse and are in any event less worth of belief”.

Section 41 then sets out limited exceptions to this rule, which may be engaged where “a refusal [to allow the questions or evidence] might render unsafe a conclusion of the jury on any relevant issue in the case”. Section 41(3) provides that, where a relevant issue is consent, one of the limited exceptions for allowing evidence of sexual history is where the previous sexual behavior is relevant and “so similar” to the complainant’s behaviour during the event, that “the similarity cannot reasonably be explained as coincidence.” This, the Court has said, presents a “high hurdle of relevance and similarity” for the defence to clear in order to succeed in an application. There is a further condition that no evidence can be admitted where the purpose of so doing is to impugn the credibility of the complainant.  Put loosely, the section is designed to prevent sexual history being used to embarrass, discredit or plant nasty seeds in the minds of the jury to evoke ugly, olden day mores about sexual promiscuity.

In Evans’ case, it was said that the exception in section 41(3) was met, due to the emergence of fresh evidence. This came primarily in the form of two witnesses, S and O, each of whom said that he had slept with X around May 2011, and that she had instructed him to have sex with her “doggie style” and had urged him to have sex with her “harder”. Relevance? Well, when interviewed by police in 2011, Evans told them that X had performed oral sex on him, before adopting a position on all fours and instructing him to “fuck me harder”. This, the defence said, was relevant to the issue of consent – if Evans was right, it would support his assertion that X was a capable and consenting participant. If would further bolster the reasonableness of his belief that she was consenting. The fact that X had used this similar behavior – the sexual position and the words — on two other occasions made it more likely that Evans was truthful when he said it happened with him, and was therefore relevant to supporting this aspect of his defence. It is important to understand this reasoning – it is not to suggest that “X slept with S and O consensually, therefore she consented with Evans”. That is not the reasoning at play, and the jury at the retrial would have been directed as such.

What qualifies as “similar behaviour”? Well, the test for “similarity” has been established by earlier case law as not requiring that the conduct be “rare” or “bizarre”, merely that it “go beyond the realm of what could reasonably be explained as a coincidence”. The combined effect of X’s words and actions were said by the defence to clear that bar.

When this was argued in the Court of Appeal, the prosecution disagreed with the defence analysis, submitting that, even if the new witnesses were to be believed, there was insufficient “similarity”. What X said and did was fairly unremarkable.

This, to me, is an arguable point. To borrow from legal colleague’s tweet, the sexual position adopted and words used are almost a modern “porn trope”, and are far more common nowadays perhaps than in the youth of the Court of Appeal judiciary. Beyond coincidence, or verging on the threshold? I don’t think it’s easy to assert either way. However, even if the Court of Appeal’s finely-balanced judgment was wrong in this case – and it is always a difficult exercise balancing the rights of complainants against the rights of the accused – it is, in my view, a leap to suggest that this has established a precedent, or loosened the strictures of section 41.

In accepting the defence argument “with a considerable degree of hesitation”, the Court of Appeal emphasised that this was an unusual case, and that it would be rare for it to be “appropriate to indulge in this kind of forensic examination of sexual behavior with others”. This explodes the “dangerous precedent” narrative. Prosecution advocates in Crown Courts across the land will draw judges’ attentions to these remarks should defence advocates try to rely upon Evans as establishing any new point of principle. Section 41 will continue to be applied strictly, and the real danger, to me, is the deterrent effect of media misreporting and scare stories on present and future victims. This decision does not herald open season on complainants in sex cases. Indeed, comfort for those seeking it can be found in the margins of the Court of Appeal judgment: O initially gave a statement for Evans’ first appeal in 2013, in which O said that he had had sex with X, and that he “couldn’t understand why X would sleep with someone so soon after a rape”. “S” gave a statement to the defence designed to show that X had slept with him just after meeting him. This evidence was wisely not relied upon by the defence, as it would have been exactly the type of nudge and wink to inadmissible, myth-reinforcing irrelevance that section 41 was designed to prohibit.

Certainly, there are other elements to the case that to an outsider could appear unsavoury, particularly relating to how these new witnesses emerged, and what they already knew about the case at the time they gave their statements. The £50,000 “reward” put up by Evans for fresh evidence is troubling. Questions to be asked, certainly, but questions that were asked, in the Court of Appeal and before the jury. All the “what-ifs” advanced by commentators who were not in court for the full trial were almost certainly litigated in front of the jury. They were certainly not litigated in front of Twitter.

My personal preference would be that little more is said about this case in the media. It is an unpleasant affair on a number of levels, with little to be usefully learned by reheating online. If it must be examined, I would plead that this be the take-home: a decision to allow evidence of sexual behaviour is rare. That is the message that we should be repeating, loud and clear. Whatever happened in this unusual case is unlikely to have any wider application; certainly there is nothing that suggests the Court intends to widen the scope of section 41. Victims should not be scared to come forward on the basis of what is being said, loudly and inaccurately, by those who should know better.

This article originally appeared in the New Statesman, available here:

For anyone interested in reading my previous post on a fancier, mainstream news website, it can be found reproduced here:

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thesecretbarrister Bad Law, Judiciary, Lawsplaining, Politics

31 Replies

  1. I’m not sure if this is relevant; isn’t it the case that when a person is tried for murder, “you take your victim as you find them”. The original, IIRC, comes from a failed defence where the victim had an unusually thin skull.

    1. Perhaps I’m not explaining myself very well. If the ‘state’ of a murder victim is irrelevant, why is the ‘state’ of a rape complainant different? By ‘state’ in the latter case I’m thinking of susceptibilities, antecedents, proclivities etc.

      Inversely; as I understand it, a defendant’s previous criminal history – or tendency – is not admissible, as it might prejudice a jury into thinking, “He’s just the sort of man who would”. Yet here the complainant’s history is admissible; do the jury think that, “She’s just the sort of slut who would”. Why is this not prejudicial?

      Is there some sort of double standard at work here, some sort of fall back to middle class Victorian values?

  2. I do not agree with your position that there is no ‘dangerous precedent’ set by leading coincidence evidence of the kind used in this case. I cannot agree that yours should be the final word on the matter either.

    My very firm position is that the evidence should have been excluded as it is so prejudicial and so salacious that it has caused a substantial miscarriage of justice. In my view, the Court’s decision stems from a logical fallacy. It relies on a fiction that drunk people can provide informed consent. From that fiction flows the flawed logic that ‘enthusiasm’ and commands for how to do things by X means that the men involved formed a ‘reasonable belief’ that she was consenting DESPITE the fact that Ched, at least, knew that X was drunk.

    I wonder if we would apply this same fiction and logic to the signing of a mortgage, the declaration of a will, the ordering of another round of tequila slammers from a licensee, or enthusiastically choosing a tattoo. Drunk people commit crimes and are not exonerated but the Law recognises diminished culpability. If I brief you when I am drunk, you will not be obliged to act on my instructions. Being drunk matters.

    We have rules around what informed consent is and we know that drunk people cannot give it. If people have sex with drunk women, they should NOT be able to adduce evidence that other people have had sex with drunk women (who like it on all fours and say ‘harder’ as though that has never happened in a vanilla heterosexual one night stand before) – and that evidence meet the threshold – not just of relevance – but of sufficient similarity as to make the evidence of significant probative value.

    This is a terrible decision, and your consistent public defence of it is fanciful and based on shaky logical foundations. The rule should be ‘have sex with drunk people at your peril; for they may not remember it and you may be charged with rape – certainly be careful not to text your mates to come and join in unless the person you’re having sex with is sober and expressly up for a threesome: You may get prosecuted’. Instead, this case has sent a message to the Brock Turners of the world that in some circumstances having sex with drunk women (and maybe even passed out ones behind dumpsters) is legal and culturally acceptable – and most dangerously – that if she wants to take you to court, her previous sexual history may be led in evidence, turning back the hands of time to the 1950’s where only the chaste could prosecute rape cases.

    Yes the decision is a dangerous precedent, and yes it will affect women coming forward. This decision reinforces rape culture. This decision says that women have less right to personal agency, bodily integrity and safety than men. A man’s right to have sex with a woman is held above her right to safety. It puts the onus squarely back on her to not put herself in a position where a man may misinterpret her demeanour or her clothing as consent. Men do not have to change their attitudes or behaviour. As a woman and a legal practitioner, I am goddamned horrified.

    1. Patients who have a general anaesthetic are specifically warned about the effects of it even when they have woken up. They should not, for example, sign important documents or operate machinery. ‘Operate machinery’ includes boiling a kettle. The after effects last 24-48 hours.

      It is illegal to be drunk in charge of a motor vehicle. The law clearly recognises that drunk people are not wholly responsible for their actions.

      1. No that is plain wrong. It is illegal to be drunk in charge of a motor vehicle and by law you are entirely responsible for you actions, in this case your choice to drive. If you do so and are caught you will be fined docked points and/or sent to prison. Likewise you are warned not to drive under anaesthetic. If you disregard this advice you are considered responsible for your actions and can be prosecuted if caught.

      1. No. I was trying to highlight the inconsistencies.

        As for the ‘complainant’; you are quite right here. I just didn’t know what term would be more appropriate.

      2. Yes. If he is not certain of consent and there is a complaint he should risk a sentence of imprisonment. Conversely are you saying that if a man has sex with me when I am drunk and I do not remember it, I do not have the right to say that he got into my body whilst I was the worse for drink and that I am traumatised and hurt? It is my body. Should it not be a crime? Which right is more important here? His right to get laid or my right to bodily integrity?

      3. There is a notion that I find archaic and one that seems ingrained in discussions on topics such as this: that men want sex all the time and women only ever “give consent”. In my limited experience this is nonsense. A perfect example is the comment by cindimindyohsopindy “Which right is more important here? His right to get laid or my right to bodily integrity?” A huge assumption and a sexist one at that. What about his bodily integrity? Take the situation described where you have sex whilst drunk and your recollections are hazy. You immediately assume that the man is the initiator. You might have been the initiator, you cannot remember after all and you were drunk. Did you seek consent? Perhaps you took advantage of his drunken state. How would you feel about being locked up for sexual assault? Men can have an erection whilst asleep or blind drunk. Men can also have sex under duress from a drunk partner – I know I have and I’m sure it’s not uncommon. In the Ched Evans case, the situation was different but the idea that a man should go to prison for something he didn’t do, just to protect the feelings of the woman involved, who didn’t even claim she was raped is utterly abhorrent. At the same time, I do feel genuine sympathy for that woman, who showed immense bravery for being prepared to tell the truth.

  3. One point which I think hasn’t been discussed in detail, and on reflection I think is very significant, is this.

    The “victims” identity is protected, anonymity assured, this being the case how did the defence find these two “witnesses” who recounted the “doggystyle harder” narrative (for a fee) without her name being used?

    There is something I find very disturbing about this as its basically impossible to find such witnesses without identifying the victim, so how exactly were they found? Posters on lampposts? …. there are elements here that beggar belief from a common sense perspective.

    Obviously I wasn’t in court, but there seems a significant element here that the media has ignored, and that element must surely involve the defence team having broken the law, so how is that ok as it infers that you can buy “justice” ?

    1. I’m just speculating, but presumably the defendant knows who the woman is, as he had sex with her (consensual or not).

      1. I read he didn’t speak to her, it was his friend who had “pulled”, presumably he (Ched) didn’t know her. So I still don’t understand how these witnesses were found without her identity being disclosed, which is surely illegal, something doesn’t add up here??

      2. The victim’s name etc were spread on social media; even when her particulars were changed, she was still ‘outed’. I can only guess that this might be how the new witnesses heard of her.

    2. Seems strange how you are more concerned with the woman’s anonymity than with a man being sentenced to 5 years in prison for something he didn’t do based on zero evidence

      1. Well there was evidence, his, he admitted having sex with someone he had never exchanged a word with, who was blind drunk, who wanted it “harder” (his defence in a word), maybe it’s just me, but I think when one steps back and looks at the circumstances it’s rape in my book.

        If someone texted me and said “I’ve got a bird” I wouldn’t hot foot it over thinking that’s an invitation to have sex with a drunken stranger…I prefer to actually know my partner, to meet them myself and not via a friends endeavours, each to their own I guess but on any level the girl was badly treated, both by the system and those two assholes.

        I still remain totally bemused how these paid witnesses were found without disclosing the girls identity.

      2. Personally yes I am more concerned with the woman in this scenario, and I am willing to say so. Zero evidence? Didn’t do? – The girl was young and the girl was drunk. One of the men texted the other to say, I’ve got one. It stinks of predatory behaviour and lack of respect for women as fully agent, human beings. This concerns me and I believe that the men in this case transgressed. I do not see anyone on here advocating for either man to be sentenced to 5 years’ imprisonment (sentencing is a formula not an absolute). I would have been happy with a large fine payable to a sexual assault support charity, community service and some training in basic manners and bodily autonomy – but with a conviction, at least.

    3. How can the expression “fuck me harder” be interpreted in any other way than as consent. That you prefer to “actually know your partner, to meet them yourself and not via a friends endeavours” is just your particular preference. Who are you to say that group sex or sex with strangers is wrong? It is certainly not against the law and that’s what counts. The law is there to protect society. How would you feel if you you were sent to prison for something you didn’t do? Is it better that the innocent should be locked up or that we should know the truth?

      1. Obviously I have no opinion on “consensual” group sex, or “consensual” sex with strangers, it’s all fine with me. I do have a problem with exploitation of people who are not capable of informed consent.

        Lets takes “Russ” who likes group sex/sex with strangers, Russ gets blind drunk/dosed with Rohypnol, wakes up having had several strangers penetrate him anally, is that OK?

        Where do you draw the line, alcohol/drugs…?

        He had never spoken to her, I assume she didn’t know who he was, we have “paid” witnesses corroborating one element of his story, he clearly recollects that part, but not his taxi conversation with his colleague, it’s all very “convenient” is it not?

        If he was Joe Blow without the means to pay witnesses would he still be in jail…probably.

        Should he be in jail, probably as that’s what the first trial decided.

        So should the law be changed, to remove any semblance of protection to people who get drunk/taken advantage off ?

        Because that’s what this case seems to say, if you have means to unearth/pay witnesses you can “get out of jail” but when you “can’t remember” a contemporaneous
        conversation that’s fine also.

        The lady made an ill-judged choice when under the influence, we have all done that at one time or another. The police/prosecutors thought a crime had been committed (so do I) so they pressed for and obtained a conviction.

        The second retrial allowed “bought evidence” to be introduced that allowed one part of his testimony to be verified and which also (further) trashed the lady concerned, to me it reeks of (even if indirect) undermining victim rights in general, especially if there is big money involved, in the Owen Oyston case new evidence adduced was ruled inadmissible, whereas here it was allowed.

  4. I am concerned that despite the best efforts of the police, the complainant has been repeatedly, fund, named and subjected to on-line harassment.
    What is going wrong here?

  5. Should we not be more concerned about the fact that in 2016 a man can be sentenced to five years in prison based on no evidence whatsoever?

  6. This anonymity of the alleged victim, how does it work?
    Those involved in the case – accused, judge, lawyers, court staff etc – must know the identity. Do they commit a crime if they mention the name to anybody whatsoever? So the accused could not tell his wife? The judge could not tell another judge? A barrister could not mention it to a colleague in his chambers?

  7. I’ve been scratching my head about the Court of Appeal decision. I thought the decision was very well argued in the transcript but I was still left with a feeling that something was wrong. Firstly, the emphasis on the fact that the new evidence was so similar that it couldn’t reasonably be explained by coincidence. People do fall into particular behaviour patterns when drunk. We all know that from our own experiences. The new evidence in the transcript make it clear that there is a relationship between this position / these words being used and her being either drunk or very drunk, and I think that has more to say about her ability to give valid consent than anything else. The sober witnesses on the night state she was very drunk, so to me there’s no coincidence this position / these words were used. I think the law was interpreted in such a way as to make this coincidence seem as if it had been discovered that the sky was blue.
    As far as belief in consent is concerned, it would be very easy for someone who has taken advantage to be able to say the next day, once sober, well she was asking for this and that. But how did she ask for it, slurry and sluggishly? Can we compare the evidence of three men and say how it was on that particular night? Were the other two men there? Do they have anything to say on it? So, I’m struggling with relevance.
    The next thing is that allowing these other two men to appear as witnesses was only ever going to stack the odds against the woman: it was 3 against 1 in the courtroom, and this is a girl who can’t remember on each occasion, so she can’t rebut anything. The transcript talks about the difficulty Ched had in having his defence believed. But this decision threw it the other way. It made it difficult for her evidence to be believed. There needed to be a solution that ensured balance. I think it would have been OK to have put some arguments to the complainant, e.g. asking her if this was the first time she had woken up after a night out and forgotten the later events of that evening, but not about previous sexual history, unless that history had been with Ched himself. The decision taken left everything open to carnage and in my view did exactly what the law sets out to prevent, which is why campaigners are crying foul.
    The new evidence was very clever as it seemed to satisfy relevance but at the same time it discredited the complainant (did Evans have any other option?) which the law is meant to prevent, but it happened here, at least in practice. “I think she’s lying,” said one. Another guy saying he was shocked that she was able to have sex after allegedly being raped. How is a statement like that going to make the girl look in the eyes of other people? There was never any violence alleged in this case, no physical harm done, and she doesn’t remember the night, so I can see why she was able to have sex afterwards, and anyway, people respond differently, so it was also very unfair to allow this comment to be used (though I’m not sure it was used in the retrial, I read it only in the transcript).
    In short, I would argue that the aspect of similarity was seen from a strange angle, that the interpretation of the law on similarity should have been tighter, e.g. relating only to similarity of previous sexual behavior, if any, with Ched, but that the pattern of her drunken behaviour may have been put to the complainant.
    If you accept that the similarity aspect was either overplayed and wrongly handled, then the new evidence should have been rejected on the grounds of (I think) section 4, which prevents evidence being used whose main focus is on discrediting the complainant.
    I would be very interested to know whether the Court of Appeal reviews its judgements, or if anyone does.
    My final point: I’d like to know what was said in the telephone conversation between Ched and Clayton McDonald in the taxi, the conversation Ched says he can’t remember.

    1. “The new evidence was very clever as it seemed to satisfy relevance but at the same time it discredited the complainant (did Evans have any other option?) which the law is meant to prevent, but it happened here, at least in practice. “I think she’s lying,” said one. Another guy saying he was shocked that she was able to have sex after allegedly being raped. How is a statement like that going to make the girl look in the eyes of other people?”

      These details may have been mentioned in the judgement, but they weren’t used as evidence in the trial.

      IMO the comments you quote make the witnesses look bad, not the young woman.

  8. Another reason why I think the new evidence was irrelevant: for the purpose of determining reasonable belief in consent for myself, I’ve been asking myself lots of questions like, ‘Could Ched have had reasonable belief in consent?’ (Even going to the time earlier before the hotel room, to the text sent by MacDonald, which he may taken as his mate having bagged a seemingly willing girl for the both of them) Alternatively, ‘Could Ched really have had reasonable belief in consent? (Given how drunk the girl was) ‘Did he actually think about consent or merely assume it?’ ‘Had he ever needed to think about consent before?’ ‘Did he think of himself as beyond consent?’ ‘Did drunken opportunity override any thoughts of consent?`Essentially, I was trying to think about what was going on in Ched’s mind at the time (as everyone tried to do in the Oscar Pistorius case), and interestingly in none of these considerations was I thinking about later sexual activity, namely the girl’s positions and words (mainly because someone can take advantage of another person’s drunken frolics and that doesn’t amount to belief in consent; it’s more taking advantage of a situation that presents itself, but of course the situation itself gives you everything you need to claim belief in consent). Anyway, I was trying to work out what may have been going on in Ched’s mind from the time he received the text to the point where he “joined in”. This for me is the crucial period and with or without the new evidence I would have reached this same crossroads. My conclusion is that there is insufficient evidence, based on everything I have read so far, to determine that he didn’t have a reasonable belief in consent beyond all reasonable doubt and that would have been the same in both trials, i.e. regardless of the new evidence. The only thing that may have swayed me, had I sat in on the trials and heard everything, is whether there was information that suggested he couldn’t possibly have had a reasonable belief in consent.

  9. In order to sift through what is relevant and what is not relevant to a particular rape case, how about if the law read (and here I added in the words “in similar circumstances” at various points):

    (3) This subsection applies if the evidence or question relates to a relevant issue in the case and either –
    (a) that issue is not an issue of consent; or
    (b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused, in similar circumstances; or
    (c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar –
    (i) 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, and in similar circumstances, or
    (ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event, in similar circumstances, that the similarity cannot reasonably be explained as a coincidence.

    This wouldn’t change my comments above. I think the complainant vs. Ched circumstances weren’t similar to the previous circumstances given in the new evidence because she had contacted those other men in advance and there had been dialogue. In this situation, Ched turned up while she was already having sex with a man (McDonald). You could argue she had met McDonald in circumstances that were similar to the new evidence put forward, but not Ched, hence the new evidence wasn’t relevant imho. Nonetheless, I think there was in any case insufficient evidence to be in any way sure of Ched’s lack of belief in consent so it wouldn’t have made any difference anyway.

    The usual caveat: I know nothing about law. I’m just commenting based on what I have read, learned and considered in this case.

    1. I read the summary and I was struck by two things.

      1) the seeming ineptitude/happy coincidence (no notes) factor of the solicitor who previously spoke to one of the witnesses, in essence it allowed a door to be opened that was previously closed.
      2) the review overlooked one key fact, none of the witnesses spoke of group sex, obviously “x” got drunk/sought company/sex (just as her partners were). But there is no suggestion she was exploring group sexual possibilities.

      So in that respect the testimony of these new witnesses was completely irrelevant to the case and shouldn’t have been admitted. So I think it sets an appalling precedent.

      Drunk people have sex all the time, but very rarely with people filming through the window and extra participants turning up who are invited by only one party. The evidence suggests, even the new evidence tends to reinforce, that she did not give consent to multiple partners, so it seems to me that a crime was committed.

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