The “Rape Shield” Bill is well-intentioned, meaningless and dangerous

Like the tide or the relentless ignorance of Iain Duncan Smith, the rhythm of certain recurring natural phenomena offers a comfort of certainty in an otherwise torrid and unpredictable world. One such inevitability was the reignition of the “Ched Evans row“, as media fiat demands it be termed. After several heady weeks in which almost all concerned abandoned calm and reason to soak in a pool of righteous, misinformed anger over cross examination of complainants on their sexual history and the meaning of the Court of Appeal ruling in Evans, there was a period after we all got out and dried off when tempers cooled and a serendipitous peace descended.

Ched Evans was a star player at Sheffield United.

It could never last. It was never intended to. That much was known when the government announced a review into the operation of section 41 of YJCEA – the legal provision setting out the limited circumstances in which evidence may be adduced or questions may be asked relating to previous sexual behaviour of a complainant in a sex case. We do not yet have the review, but yesterday nevertheless brought a pre-emptive legislative response, in the form of a Private Members’ Bill introduced by Plaid Cymru MP Liz Saville-Roberts.

The Bill, dubbed as a “Rape Shield”, has gathered attention since the weekend, as Ms Saville-Roberts trailed it across various media platforms. Explaining her premise, Ms Saville-Roberts wrote in The Times yesterday:

“So what’s the problem? It seems that rather than being invoked occasionally as originally intended section 41 is being over-ridden in courts to the degree that its effectiveness as a rape shield is weakening. This was thrown into sharp definition by the Ched Evans retrial. What was previously presumed to be a legal resort for extraordinary circumstances was presented as a successful defence strategy across the popular press and social media, which begs the question: from now on will every man charged with rape seize on this case as a get-out-of-jail-free card, and instruct his lawyers accordingly?”

Counting slowly to ten and fighting the urge to scream “THE ONLY PEOPLE PRESENTING THE CHED EVANS RULING “AS A SUCCESSFUL DEFENCE STRATEGY ACROSS THE POPULAR PRESS AND SOCIAL MEDIA” AND SUGGESTING THAT DEFENDANTS WILL UNIVERSALLY ADOPT IT AS A FORM OF PRECEDENT WERE NOT DEFENDANTS OR DEFENCE LAWYERS BUT YOU, THE HYSTERICAL MOB RESISTANT TO THE STRONG LEGAL CONSENSUS THAT EVANS SET NO MEANINGFUL PRECEDENT”, I shall accept, for the sake of argument, the premise that section 41 is being too loosely interpreted by Crown Courts, and that judges are permitting lines of questioning that they shouldn’t. I will respectfully observe that Ms Saville-Roberts’ reliance upon an anecdotal “dossier of victims’ harrowing experiences” collected by charity Voice4Victims, as evidence for her proposition that section 41 is insufficiently restrictive, is a little unscientific – a complainant, who is not legally trained, was not present during the judge’s ruling on the section 41 application and has a personal stake in the case, is not best placed to impartially assess the objective lawfulness, relevance or propriety of the questions on sexual history – but let’s not refight old battles about what precedent Evans sets or whether section 41 is or is not being correctly applied. Let’s assume that Ms Saville-Roberts is right, and consider the Bill presented yesterday.

As a Private Members’ Bill at a first reading, we must allow for this being very much a first draft. But even so, it is of a standard, it has to be said, which my pupil supervisor would have merrily set alight with his cigarette lighter had I presented it to him as an example of my drafting. The first clause of the Sexual Offences (Amendment) Bill deals with the proposed “Rape Shield”, and reads as follows:

1. Restriction on evidence or questions about complainant’s sexual history

(NONE)In section 41 of the Youth Justice and Criminal Evidence Act 1999 after
subsection (1) there shall be inserted the following subsection―

(2) A Court in making a determination in respect of subsection (1) may
require that the cross examination of a complainant shall not involve
any matter appertaining to their appearance, behaviour or their sexual
history with any unrelated third parties regardless of the nature of the
complainant‘s alleged behaviour either before or subsequent to the
current proceedings nor should such matters be admissible as evidence
if the purpose is to undermine the credibility of the complainant unless
it would be manifestly unjust to treat them as inadmissible.”

That’s quite a mouthful. Let’s break it down. Subsection (1) of section 41 YJCEA 1999, as a brief reminder, provides the general rule that:

(1)If at a trial a person is charged with a sexual offence, then, except with the leave of the court—

(a)no evidence may be adduced, and

(b)no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant. 

The remainder of section 41 sets out the limited exceptions under which leave may be granted, namely the circumstances set out in subsections (3) and (5).

So the new subsection (2) presumably seeks to add a further compulsory qualification to the general circumstances in which the judge can give leave under (1). I say presumably, because it is in fact entirely unclear what the subsection is supposed to achieve. Having read it repeatedly, the only way to begin to analyse its intended effect is to look at it line by line. In so doing,  I shall refer to the proposed new subsection (2) as subsection (1A) (as it ought properly be), to avoid confusion with the existing subsection (2).

(1A) A Court in making a determination in respect of subsection (1) may require that the cross examination of a complainant shall not involve…”

Right from the off, we see that this isn’t a mandatory restriction at all. It simply affords the judge a discretion as to whether to apply the qualifications that follow. Which, if your complaint is that judges are presently not exercising their discretion in this area correctly, appears an odd solution.

As to exactly what type of questions the judge may prohibit, we’ll turn to the substance momentarily, but it assists to skip to the end to get an overview of the purpose. Doing so gives us:

(1A) A Court in making a determination in respect of subsection (1) may require that the cross examination of a complainant shall not involve [various matters] if the purpose is to undermine the credibility of the complainant.”

This gets to the nub of the (entirely proper) objection that Ms Saville-Roberts has to evidence of sexual behaviour being used to discredit complainants, this being one of the “twin myths” – (i) “promiscuous” women are less likely of belief, and (ii) are more likely to have consented to sexual intercourse – that section 41 was designed to combat. Firstly, given that this Bill is presented as the panacea to the “Ched Evans problem”, it bears constant repetition that the reason for the admission of the sexual history evidence in Evans had nothing whatsoever to do with attacking the complainant’s credibility. Secondly, the authors seem unaware that section 41 already has that exact prohibition in place:

(4)For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.

Which rather makes (1A) otiose.

But what are the restrictions that the judge may apply? Well, s/he:

may require that the cross examination of a complainant shall not involve
any matter appertaining to their appearance, behaviour or their sexual
history with any unrelated third parties regardless of the nature of the
complainant‘s alleged behaviour either before or subsequent to the
current proceedings”

This is so broad as to defy definition. It covers quite literally “any matter appertaining to behaviour” – not just sexual behaviour. Quite what is meant by  “sexual history with any unrelated third parties” remains to be seen, no definition being offered, and a literal reading suggesting that evidence of incest would be admissible. The last line really tops it off – regardless of the nature of the complainant’s alleged behaviour either before or subsequent to the current proceedings – reading as an attempt to ban any question in any context. The incoherence is staggering.

Then we reach the final qualification:

“unless it would be manifestly unjust to treat [those matters] as inadmissible.”

The discretionary nature of this provision renders an “unless” clause utterly pointless, but in any event, it again adds nothing. Because there is already built into the existing subsection (2) of s.41, a requirement that leave should not be given under section 41 unless the court is satisfied “that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.” Much as the Court of Appeal enjoys a spot of sophistry, identifying a meaningful distinction between a decision that is “manifestly unjust” and one that merely “renders unsafe” the verdict would be a head-scratcher even for them.

The only conclusion one can draw, for this to have any meaning, is that the word “may” is an error, and that the author intended this provision as an imperative. In which case what you get is a mandatory restriction on asking the complainant any question on any aspect of behaviour – including lies, evasiveness or inconsistency – which may be designed to undermine their credibility. Faced with a false allegation, you would be prevented from challenging the credibility of your accuser in any way.

Put simply, the drafting of this Bill shows that no understanding of the law, or the principles behind section 41, has been attempted by its creators. It is knee-jerk to the point of hyperextension. Other comments by Ms Saville-Roberts, in which she mangles the reasoning of the Evans ruling, and even goes as far to suggest that section 41 as presently drafted is intended to exclude evidence of a complainant’s mental health, suggest that she, like many before her, has not taken the time to properly study the basics of her subject before rushing to legislate.

And I go into this tortuous detail because it exposes a deeper ignorance of our basic principles of justice, as demonstrated even more starkly in the next clause of the Bill, which seeks to impose a general ban on the police and CPS telling a defendant the name of their accuser, or other witnesses, in cases involving sex or violence, without the leave of a Crown Court judge (a proposal demolished by Nick Diable here). This is not a considered rebalancing of a finely-tuned and delicate ecosystem – it is an aggressive demolition of our common basic rights in the name of Doing Something to correct a problem which the architects don’t even understand.

I have no doubt that Ms Saville-Roberts and her sponsors are motivated by a genuine and noble desire to correct what they perceive to be cruel humiliation visited upon vulnerable complainants. But in so acting, they subscribe to a philosophy in which the court process is reimagined as a way of simply navigating our way smoothly to a conviction, safe in the certainty that if the defendant stands accused, it follows that he is guilty. In this model, it is of course rational that the minimisation of the complainant’s distress is the guiding principle, with the presumed guilty defendant’s interests an afterthought; worse, an inconvenience. A precondition of any reform of section 41 is sober analysis of the competing interests – defendant, complainant and state – and root principles of justice, before so much as a word of a new Bill is committed to paper. Otherwise we end up with Bills like this – well-intentioned, meaningless and potentially very dangerous indeed.

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10 myths busted about the Ched Evans case

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, 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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