Saturday, 15 October 2016

Deplorable Ched Evans Decision

Whether a woman has been raped should be a straight forward, black and white issue but the Ched Evans case could have set a dangerous precedent.
What it comes down to is did the woman give her consent to have sex. If she never then it is rape, it really should be that easy to define.
With regards to Ched Evans, the court heard independent witnesses who testified the girl involved was very drunk, had glazed eyes and was incoherent and stumbling on the night she encountered Evans.
If she was not in any fit state to give consent, and she says she never, then Ched had sex with her without he giving him permission to.
What seems to have swung it was that the woman involved was sexually promiscuous, having been with two men in the previous weeks, and due to her previous sexual behaviour she wasn't raped.
To take into account a woman's previous sexual behaviour is an abhorrent thing to base such a massive decision of whether  she was raped on.
The fear is now that the events in the case will mean more women are subjected to the kind of humiliating and intrusive dissection of their sexual behaviour which could prevent the jailing of rapists.
Did the woman give her consent for Ched Evans to have sex with her should be the only question anyone needs to ask. She never, so Ched raped her, it is that simple.


Cheezy said...

Hi Lucy. Hope you are well. I take issue with your closing paragraph.

"Did the woman give her consent for Ched Evans to have sex with her should be the only question anyone needs to ask. She never, so Ched raped her, it is that simple."

The first sentence is undoubtedly true. The second sentence, that consent was not given, was not proven. This is why Evans's conviction was quashed and the verdict not guilty in the retrial. I don't know if you recall a few years ago when he was first convicted? I read a lot about the case and predicted that if an appeal was ever heard then the conviction would never stand. That's because - like a lot of the commentary about it - the decision seemed very much a result of the socio-political controversy of the time, rather than any dispassionate analysis of the facts of the case.

Falling on a bruise said...

Hope you are well cheesy. From what I read, it came down to her word against his but the lawyers used her previous sexual promiscuity to find as she was too drunk to remember, she probably did give consent and that is where it gets into dangerous ground. She said she never and the onus shouldn't be on the woman to prove she never but on the man to prove she did otherwise it becomes if the woman doesn't specifically say no, its fine.

Falling on a bruise said...

Sorry, autocorrect changed your name and I forgot to change it until after I pushed send.

Cheezy said...

That's OK, Lucy, I answer to all forms of the name :)

Cheezy said...

It’s not quite as simple as saying it was ‘his word against hers’. Her case was not that she did not give consent, but that she was too drunk to give consent that reasonable people could interpret as being legally valid. However, consent given while drunk may still constitute legal consent. So the question becomes: Did the defendant believe that this consent was given? If the prosecution could prove that he did not honestly and reasonably believe this, then he’s guilty. Anything short of that, and he isn’t.

The truth is, there were/are many things to doubt about the complainant’s testimony, including the issue of exactly how drunk she was. Her own testimony was that she’d drunk 2 glasses of wine, 4 vodka & lemonades, and one Sambuca. Enough for most normal girls of that age to get merry enough and lower their inhibitions, but surely some way short of being annihilated to the point of amnesia. It’s not too unusual for young people to go out and drink so much that they forget a large chunk of the evening, which sometimes includes their sexual behaviour. What would be slightly unusual however, would be to drink so much that you reach that ‘blackout’ stage of inebriation and still be able to send a correctly spelled and capitalised text message to a friend just one hour before the alleged offence. This is what happened in this case. She was also seen interacting with people in a takeaway bar, paying with the correct money, spurning the advances of another male, and doing certain other things that would be difficult if you were so drunk that you were at the point of 'blackout'. None of this supports the defendant's contention that she was so drunk that anyone around her must have been aware that she was incapable of giving legal consent.

It’s important to note that the defence did not use the complainant’s previous sexual behaviour to impugn her character or credibility as a witness, or even to suggest that, because she’d been gang-banged in the past, then she’d be more likely to consent to a gang-bang in the case at hand. If either of these was the purpose of this evidence, then it would not have been admitted. Rather, the admission of this evidence - which was in effect two separate witnesses describing the details of the sex that they’d had with the complainant - was purely to show that Evans had independently spoken about events of a very similar nature, which was deemed to go beyond what could reasonably be ascribed to coincidence. Allowing this evidence was a judgment call, but it always is a judgment call when the court assesses whether the probative value of evidence outweighs its prejudicial effect.

You also mention the burden of proof. Because rape is a criminal offence, and because the key issue in rape is consent, then the prosecution has to prove that consent was not given. Any attempt to reverse this would be to do major damage to fundamental principles of English law, including ‘Ei incumbit probatio qui dicit, non qui negat” - the presumption of innocence and it being the burden of the asserter to prove, not the denier. Contrary to what many people think, the recent (2015) guidelines do not change this burden, although they do urge the courts to consider what made the defendant reasonably believe that consent was given - just as the courts should consider what made the complainant believe that consent was not given.