Ched Evans cleared of rape in retrial

Original post by unprinted

It's very simple: if someone does not consent but you have a reasonable belief in their consent, you're not guilty of rape.

So everyone who did not want to stick their penis in her agreed that the victim was very drunk - she was so out of it that night that she wet herself without waking up and by the time of the first appeal, even Evans' lawyers agreed that she didn't remember a thing about what had happened. The jury in the first trial clearly believed that she lacked the capacity to consent. However McDonald - who had talked to her outside and gone with her to the room - could have had a reasonable belief in her consent and so the jury unanimously found him not guilty.

In contrast Evans' only contact with her prior to arriving in the room, uninvited, unexpected and unwanted, was to step over her as she lay literally falling down drunk in the kebab shop that she left her handbag in. Both men swore on oath in the first trial that they did not ask if she wanted to have sex with Evans. So no reasonable belief in consent meant the first jury unanimously found him guilty.

In the second trial, Evans said that McDonald had asked her if she wanted to have sex with him. The jury asked for details of McDonald's statement (which, again, denies that he did any such thing) but were told that because he was not being called as a witness, they could not have it.

So in the first trial, all support for Evans' reasonable belief in consent was erased by McDonald effectively saying that Evans was lying about him asking. In the second, that didn't happen. Presumably McDonald, being Evans' mate, said he would not give evidence if asked because he wasn't on trial himself. I suspect that is the crucial difference between the two trials.

Can you provide sources for the bold? I cannot find any confirmation of any of it online

It makes absolutely no sense to argue that McDonald's much greater contact with the complainant was likely to give him reasonable belief in consent if you are also going to argue that she was blatantly drunk from start to finish.

The turning point in the case seems to be completely different, but does not explain why McDonald was originally acquitted while Evans was convicted:

The main new evidence included was from other men who had had consensual sex with the woman, who testified that her sexual behaviour was similar to that which Evans described. Details of a complainant's sexual history are not usually admissible, but there is an exception for evidence which is "so similar [to the defense's account] that the similarity cannot reasonably be explained as a coincidence". (Wikipedia)

(edited 7 years ago)

Reply 43

Original post by Luke Kostanjsek

This is not sufficient to say that Evans could not have believed she was capable of giving consent. The fact that McDonald was having sex with her suggests that he had consent from her, and so she was capable of giving consent.

No, it doesn't. A reasonable belief in consent may be a mistaken one. No-one - except those looking for straw men arguments - says that she had capacity while having sex with McDonald and magically lost it in the seconds between McDonald stopping having sex with her and Evans starting.

She lacked capacity to consent with both men.

Evans could quite reasonably argue that there was implicit consent insofar as she gave no reaction to suggest that she didn't want him there, and that she proceeded to engage in sexual activity with him.

I don't doubt that Evans believed she was consenting, but a belief in consent has to be reasonable and his seems to have been based on being a footballer. Because he didn't ask and we - but not the jury in the second trial - know that McDonald didn't ask her either.

I'd phrase it as 'He proceeded to have sex with her.' He says he stopped because he was worried about getting a call from his girlfriend, but it's possible that he didn't enjoy having sex with someone who was semi-comatose.

how exactly is a court meant to decide how drunk is 'too' drunk.

This is why we have juries. In the first trial, they listened to everyone describe how drunk she was and decided that she was too drunk.

And perhaps more pertinently, how is some random Joe Bloggs - who likely has also had a few drinks at least - meant to make this same judgement?

All it would have taken for Evans to never be tried was to ask her before sticking his penis in her. If she could say 'yes', he'd have the basis of a reasonable belief in her consent.

Secondly, it shows that the victim's sexual history most certainly is relevant to any case of this nature. Not in the sense that if she's promiscuous then she's 'asking for it', which is obviously heinously untrue, but in that it could give the defendant reason to believe the victim is consenting. If the victim's behaviour during the alleged rape is typical for them, it would give the defendant a reason to believe they were indeed consenting.

What rape apologist crap. Just because she shagged someone else doesn't mean she consented to shagging him. How's Evans supposed to know how she may have behaved with someone else on another night?

Reply 44

justboy

Original post by HucktheForde

why do women ever regret having intercourse? ffs its over. do men ever regret ****ing a girl?

Except its not just as simple as that is it? Many wake up the next day and can't remember anything that happened the night before at all and this particular person found themselves completely naked in a random hotel.

I still think evans knew that she was completely wasted but he just didn't give a ****.

Reply 45

Luke Kostanjsek

11

Original post by unprinted

No, it doesn't. A reasonable belief in consent may be a mistaken one. No-one - except those looking for straw men arguments - says that she had capacity while having sex with McDonald and magically lost it in the seconds between McDonald stopping having sex with her and Evans starting.

She lacked capacity to consent with both men.

No, but if Evans walked into a room and saw them having sex, he may have presumed the sex was consensual. If he believed the sex was consensual, he therefore believed she had the capacity to consent to sex, and therefore could also consent to sex with him, be that consent implicit or explicit. I'm not even saying he necessarily thought in that way, merely that he could have.

Original post by unprinted

I don't doubt that Evans believed she was consenting, but a belief in consent has to be reasonable and his seems to have been based on being a footballer. Because he didn't ask and we - but not the jury in the second trial - know that McDonald didn't ask her either.

If he believes that she consented, then by what measure can it be judged to be rape? Whether or not it is 'reasonable' seems like it would be incredibly subjective; far too subjective to be in an article of law.

You're also again ignoring the fact the consent is not necessarily explicit. The fact that she never verbally agreed to have sex with him does not mean he could not have thought she was consenting.

Original post by unprinted

I'd phrase it as 'He proceeded to have sex with her.' He says he stopped because he was worried about getting a call from his girlfriend, but it's possible that he didn't enjoy having sex with someone who was semi-comatose.

That is nothing more than semantics. They proceeded to have sex, he proceeded to have sex with her, it's to the same effect. The fact that she went on with the sexual interaction implies that she did not disapprove of it, which again could suggest implicit consent.

Original post by unprinted

This is why we have juries. In the first trial, they listened to everyone describe how drunk she was and decided that she was too drunk.

As much as you talk about the second jury not having access to all the evidence, the appeal hearing did. So it really isn't as black and white as you're suggesting.

Original post by unprinted

All it would have taken for Evans to never be tried was to ask her before sticking his penis in her. If she could say 'yes', he'd have the basis of a reasonable belief in her consent.

Once again, consent can be implicit as well as explicit.

Original post by unprinted

What rape apologist crap. Just because she shagged someone else doesn't mean she consented to shagging him. How's Evans supposed to know how she may have behaved with someone else on another night?

Congratulations for putting words in my mouth. At no point did I suggest that. What I said was that if someone has a pattern of behaviour, and they display that same behaviour on the night of the incident, then that would give the defendant the belief they were under control of their actions, and hence potentially form a part of their reasonable belief of consent.

Reply 46

Original post by Fenice

Can you provide sources for the bold? I cannot find any confirmation of any of it online

See the first appeal court judgement for the best single summary of the case against him including those bits. (It will also show some of the changes to Evans' story between the trials.)

It makes absolutely no sense to argue that McDonald's much greater contact with the complainant was likely to give him reasonable belief in consent if you are also going to argue that she was blatantly drunk from start to finish.

He knew she was drunk - to the point where he asked the night porter to watch out for her as she left - but you can be drunk and still have capacity to consent. Only he knows what happened when they were in the room together, and his story was that she consented. Given no evidence to say otherwise, you're left saying that he may have had a reasonable belief.

The turning point in the case seems to be completely different, but does not explain why McDonald was originally acquitted while Evans was convicted:

Again, see the first appeal: it all comes down to reasonable belief and, given the two men's statements, it's clear that Evans belief in consent was not reasonable.

Reply 47

Ella-keturah

Screenshot_20161014-195706.jpg222.6KB

Well rape is notoriously hard to prove. He still cheated on his girlfriend regardless, which is immoral.

Reply 48

Original post by Luke Kostanjsek

No, but if Evans walked into a room and saw them having sex, he may have presumed the sex was consensual. If he believed the sex was consensual, he therefore believed she had the capacity to consent to sex, and therefore could also consent to sex with him, be that consent implicit or explicit. I'm not even saying he necessarily thought in that way, merely that he could have.

He could, but in order for even a genuine belief in consent to be a defence, it has to be reasonable.

'She's shagging my mate, so she'll shag me' is not reasonable.

(Neither is 'I'm a footballer, so she'll shag me', the implication of what he said when first questioned.)

If he believes that she consented, then by what measure can it be judged to be rape? Whether or not it is 'reasonable' seems like it would be incredibly subjective; far too subjective to be in an article of law.

There was a case in the 1970s where someone was supposed to have said to a group of men something along the lines of 'My wife will scream, shout, and try to fight you off but she wants you all to **** her, honest'. One of the men said that this meant he had a genuinely belief in her consent - despite the fact that she did indeed resist.

At the time, any genuine belief no matter how unreasonable would have been a complete defence against a charge of raping her. This was not thought to be a good thing, so the current law demands that a belief in consent be reasonable.

There clearly is a line between a reasonable and unreasonable belief and it's equally clearly impossible to set out in advance what that line is. This is why we have juries and the jury in the first trial unanimously decided that Evans had no reasonable belief.

You're also again ignoring the fact the consent is not necessarily explicit. The fact that she never verbally agreed to have sex with him does not mean he could not have thought she was consenting.

You're ignoring that - according to McDonald! - Evans lied about her being asked.

You're right that neither man had to. (Although if they had, Evans would never have been on trial!) Had she leapt on him and started tearing his clothes off, that'd be a clear basis for a reasonable belief in her consent. But she didn't.

That is nothing more than semantics. They proceeded to have sex, he proceeded to have sex with her, it's to the same effect. The fact that she went on with the sexual interaction implies that she did not disapprove of it, which again could suggest implicit consent.

She was so drunk that she remembers none of this and pissed herself while passed out without waking up. It's quite possible not to be in a position to disapprove of something but not say so.

The night porter could hear that sex was happening in the room, but not the cries of '**** me harder' that Evans says she was making. That suggests that the active approval he claims didn't happen.

As much as you talk about the second jury not having access to all the evidence, the appeal hearing did. So it really isn't as black and white as you're suggesting.

The first appeal thought it was. I haven't seen the second one yet, because it was embargoed pending the retrial.

Reply 49

Fenice

Original post by unprinted

See the first appeal court judgement for the best single summary of the case against him including those bits. (It will also show some of the changes to Evans' story between the trials.)

He knew she was drunk - to the point where he asked the night porter to watch out for her as she left - but you can be drunk and still have capacity to consent. Only he knows what happened when they were in the room together, and his story was that she consented. Given no evidence to say otherwise, you're left saying that he may have had a reasonable belief.

Again, see the first appeal: it all comes down to reasonable belief and, given the two men's statements, it's clear that Evans belief in consent was not reasonable.

I would be grateful if you could directly reference what parts of that judgement uphold what you've said or at least provide a link to it

Reply 50

Original post by Fenice

I would be grateful if you could directly reference what parts of that judgement uphold what you've said or at least provide a link to it

What you're looking for is '[2012] EWCA Crim 2559'.

So everyone who did not want to stick their penis in her agreed that the victim was very drunk

'The owner of the kebab shop described her as being drunk and unbalanced. The CCTV footage .. showed that while she was inside the kebab shop she was unsteady on her feet. At one point she fell over and landed on the floor. .. she was also seen to stumble, squat, lose her balance, and walk unsteadily. Indeed, she left her handbag in the shop. Based on this evidence, the prosecution case was that she was very drunk.'

'The night porter (Mr Burrough) described her as "extremely drunk"'.

'McDonald left the hotel via the reception. He had a brief word with the night porter, telling him that he should look out for the girl in room 14 (the room in question) because she was sick.'

However McDonald - who had talked to her outside and gone with her to the room - could have had a reasonable belief in her consent and so the jury unanimously found him not guilty

'McDonald, who was also on trial, gave evidence that the complainant approached him in Queen Street. He asked her where she was going. She replied by asking where he was going. He said that he was going to his hotel and she said that she would go with him. ... According to McDonald's evidence, in the hotel room sexual activity was initiated by the complainant. She gave every indication that she was enthusiastic and enjoying herself. He did not force her to do anything she did not wish.'

'It was open to the jury to consider, as it seems to us, 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 [Evans] knew perfectly well that she had not consented to sexual activity with him. 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. These seem to us to be matters entirely open to the jury.'

So in the first trial, all support for Evans' reasonable belief in consent was erased by McDonald effectively saying that Evans was lying about him asking.

I can't see that in the first appeal, but it is in contemporary reports of the trial, for example:

Evans: 'He said Mr McDonald asked if his friend could "get involved", to which the woman said yes.'

McDonald: 'I clocked through the window Ryan and his mate and then Ched came into the room and said, 'Can I get involved?'".

Both said that she was asked, but both denied that it was them who did so. I'm saying that they both knew that she should have been asked, but both knew that they hadn't done so.

Note the changes in Evans' story about the window through which his brother and a friend were attempting to film what was happening - without the consent of McDonald and the woman! In the first trial, only those two were at the window and the curtain was open until McDonald notices what was happening and stops having sex to close it.

In the second trial, Evans also goes to the window, but the curtain was closed. He then leaves the pair outside and goes to the room. The curtain stays closed until McDonald opens it!?! Again, McDonald's evidence was not in front of the second jury.

(edited 7 years ago)

Reply 51

caravaggio2

17

Original post by panic!intheexam

"Conviction rates for rape are far lower than other crimes, with only 5.7% of reported rape cases ending in a conviction for the perpetrator. (Kelly, Lovett and Regan, A gap or a chasm? Attrition in reported rape cases, 2005)"

http://www.telegraph.co.uk/news/uknews/crime/7442785/Rape-conviction-rate-figures-misleading.html

"Rape conviction rate figures 'misleading'Rape victims may have been put off reporting attacks because of the use of "misleading" conviction rate figures by Harriet Harman and others, a major review for the Government warns.
Once a rape case reaches the courts, almost 60 per cent of defendants are convicted – a rate higher than some other violent attacks. "

Reply 52

Scott.

2

She's probably a tsr user.

Reply 53

username878267

15

Original post by caravaggio2

http://www.telegraph.co.uk/news/uknews/crime/7442785/Rape-conviction-rate-figures-misleading.html

"Rape conviction rate figures 'misleading'Rape victims may have been put off reporting attacks because of the use of "misleading" conviction rate figures by Harriet Harman and others, a major review for the Government warns.
Once a rape case reaches the courts, almost 60 per cent of defendants are convicted – a rate higher than some other violent attacks. "

When people talk of conviction rates, they mean the total amount of convictions as a percentage of initial complaints made to the police.
The issue here is that so many cases drop out the system before they ever reach court.

Reply 54

Lollypop100

1

It's disgusting that Ched Evans was even tried. Man and woman in messy sex and man gets done for rape.

And shame on all the cultural Marxists who hated this innocent man simply because he was convinced.

It's a really disgusting phenomenon this cultural Marxism, always favouring someone for political reasons and not treating them as an individual.

Posted from TSR Mobile

Reply 55

Original post by Lollypop100

It's disgusting that Ched Evans was even tried. Man and woman in messy sex and man gets done for rape.

Messy?!?

Let's put you in his position.

You've arrived in a hotel room, uninvited, unexpected and unwanted. (You had to lie to get the door key - you've been drinking, but you're in control of your mind and your actions.) Your mate is having sex with a woman. You've never spoken to the woman before, and you do not speak to her now. You don't actually know who she is... was she the one you stepped over when she was lying drunk on the floor of that kebab shop a while ago? Either way, your mate hears your brother and a friend at the window trying to film what's happening and gets off her to close the curtains. He also doesn't ask her whether you can have sex with her, but you do anyway... without using a condom, and you don't ask about that either.

Where's your reasonable belief in her consent?

Reply 56

justboy

Original post by Lollypop100

It's disgusting that Ched Evans was even tried. Man and woman in messy sex and man gets done for rape.

And shame on all the cultural Marxists who hated this innocent man simply because he was convinced.

It's a really disgusting phenomenon this cultural Marxism, always favouring someone for political reasons and not treating them as an individual.

Posted from TSR Mobile

Marxism? What?

Incase you haven't noticed- we live under a capitalist system and not a communist one you moron.

Reply 57

DanB1991

17

Original post by unprinted

What you're looking for is '[2012] EWCA Crim 2559'.

So everyone who did not want to stick their penis in her agreed that the victim was very drunk

'The owner of the kebab shop described her as being drunk and unbalanced. The CCTV footage .. showed that while she was inside the kebab shop she was unsteady on her feet. At one point she fell over and landed on the floor. .. she was also seen to stumble, squat, lose her balance, and walk unsteadily. Indeed, she left her handbag in the shop. Based on this evidence, the prosecution case was that she was very drunk.'

'The night porter (Mr Burrough) described her as "extremely drunk"'.

'McDonald left the hotel via the reception. He had a brief word with the night porter, telling him that he should look out for the girl in room 14 (the room in question) because she was sick.'

However McDonald - who had talked to her outside and gone with her to the room - could have had a reasonable belief in her consent and so the jury unanimously found him not guilty

'McDonald, who was also on trial, gave evidence that the complainant approached him in Queen Street. He asked her where she was going. She replied by asking where he was going. He said that he was going to his hotel and she said that she would go with him. ... According to McDonald's evidence, in the hotel room sexual activity was initiated by the complainant. She gave every indication that she was enthusiastic and enjoying herself. He did not force her to do anything she did not wish.'.

The whole problem with the drunk and consent laws is brought up by this sections purely by itself.....

Being drunk does not automatically make someone a rapist, you could be absolutely rat faced and under the legal definition of rape, as long as the defendant has reasonable belief they consented it's not rape.

Also I thought it had been stipulated by previous judges.... for a fair few years, being drunk doesn't suggest a lack of consent. They have to be completely unable to provide or deny consent for them to be classed as too drunk.

The very fact she was deemed capable of consenting to one individual means than drunkenness cannot be used in this particular case.

The rest revolves around facts the accused can't even remember. Sadly being drunk can do that to people. I've apparently acted in a fairly sober state for an entire night out and can't remember a thing.

TLDR: Drunk sex =/= Rape

Reply 58

.........Jeff458

1

I think it is just people trying to make accusations and see what they can get out of it tbh. Attention seekers dare I say?

Reply 59

Fenice