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A jury for Ched Evans was better than nothing

The Ched Evans case demonstrates the importance of rape trials. He was acquitted at a retrial of rape. The result has reignited debate about criminal justice for women. The well known allegations are that he was a footballer who went to hotel room he had booked after receiving a message that a colleague had “got a bird”. He arrived to find said colleague having sexual intercourse with a young woman he did not know. He joined in by penetrating her vagina from behind then left. She woke up later and complained to the police. She could not remember events but did not believe she was capable of consenting due to her alcohol use that night.

Both men were arrested and prosecuted for rape on the basis that she did not have the freedom & capacity to consent due to her alcohol intake. MacDonald was acquitted at trial. Evans was convicted. His defence was that he reasonably believed she was consenting despite not knowing her and not talking to her. On that issue the law requires the jury to consider what steps he took to ensure she was consenting. It appears he took no steps at all. After an offer of reward was made, other men came forward to say that they had sexual intercourse with the same woman in the same way. The Court of Appeal took the view that this was fresh evidence that a new jury ought to consider. The issue effectively was no longer her capacity but whether it was a coincidence that three men could describe having sexual intercourse with her in the same way – from behind. They quashed Evans’ conviction and sent him back for a retrial.

This time the prosecution case was the same – she lacked the capacity to consent. There was a case to answer. The evidence of the other men was called by the defence. It was suggested by the defence that she regularly had sexual intercourse in the same way. It was suggested by the prosecution that the other men had been paid to lie or chosen to lie for reward. The jury were directed to consider whether they could be sure that she had freedom and capacity to consent on the occasion with Evans. It seems he still admitted he took no steps to check. The jury decided that in the light of the alleged pattern of behaviour by the woman they could not be sure she did not consent and Evans was acquitted. Evidence of a pattern of behaviour is admissible if it goes to the issues rather than merely to credibility. She had no memory but was cross questioned about her lifestyle. He had memory and was cross questioned about his behaviour. It is a revolting set of circumstances. Similar cases occur on a regular basis although it is very rare now for a woman to be cross questioned about her previous sexual behaviour. Generally it is irrelevant as consent is determined on each occasion that penetration occurs not on whether someone has had sex before. Sometimes evidence is admitted of a defendant’s pattern of sexual behaviour, particularly if they have similar criminal convictions, but that was not the case here. The woman has the protection of legal anonymity. This is necessary to encourage rape complainants to give evidence. She has been the subject of threats and online cruelty. Until such behaviour towards women stops, anonymity is necessary.

He is not anonymous. Until defendants learn to take steps to ensure someone is consenting, public trial is an important part of public education. No one comes out of this case well. That this woman was allegedly promiscuous does not make Evans’ behaviour acceptable. It made one jury conclude they could not be sure it was sexual intercourse without consent. The current law on rape is relatively recent. Other jurisdictions have old fashioned tests on recklessness and mistake of fact rather than reasonable belief. Acquittals are more common than conviction but unless people give evidence, cases of rape cannot be tried.

I’m slightly bored with writing about why we must continue to have trials on how people behave sexually. It allows the State to punish those convicted and on acquittal for all to reflect on their own conduct. Evans has indicated he will not apologise. In the movie High Society when Grace Kelly asks Frank Sinatra ‘did we?’ He says something like ‘no – there are rules about these things’. Evans is clearly from a different society than portrayed by Sinatra in the movie but the rules are the same. Whether there was a breach of rules of etiquette or rules of law is what the Evans retrial had to determine.

The outcome has divided public opinion but the verdict was unanimous. For future cases women must continue to give evidence even if that may include answering questioning on any relevant pattern of behaviour. It’s not pleasant but there is no system other than jury trial to consider these issues. Readers may or may not agree with the decision of 12 members of the public just as thousands have agreed or disagreed on social media but it’s a lot better than nothing which is what we would have if people don’t complain. In the meantime Evans has offered to educate young footballers not to behave as he did. If wealthy young footballer behaviour can be improved by his offer that is a positive outcome. It will be interesting to see how he presents such training & whether the word “bird” can at least be consigned to history.

For those who are victims of false complaints the jury trial process is equally valuable in exposing lies. Statistically false allegations are rare. It is far more common for a jury to be unsure on conflicting accounts. Prosecuting or defending or trying these cases is never easy but that is what we do & should continue to do regardless of the outcome of one case.

By Felicity Gerry QC

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