Footballer Ched Evans found not guilty of rape in retrial

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    https://www.theguardian.com/football...-of-in-retrial

    The footballer Ched Evans, who was found guilty of rape a few years ago, who successfully appealed his conviction leading to a retrial, has now been found not guilty. It's a very sad case as Evans spent two and a half years in prison for a crime he did not commit. His name has been traduced and his reputation will likely never recover. He may struggle to get hired by another football team.

    I read the original judgment and appeal judgment, and it was my view that a rape conviction could not be sustained. The woman was not claiming that she was raped, she simply claimed that she could not remember. There are some complex issues around whether it's possible that someone's physiology means that they are capable of consenting while intoxicated (which is entirely possible; the law accepts that drunken consent is still consent) but that they also forget that they consented.

    There's also the question of whether Ched Evans had reasonable grounds to believe that the woman was consenting. However, the original verdict that found Evans guilty and the other footballer not guilty was logically impossible to sustain given the prosecution's argument was that the victim was so intoxicated that she was fundamentally incapable of giving consent; they could either both be guilty or neither but not one only on the basis of how the prosecution pleaded their case.

    Overall, I believe there was sufficient grounds for doubt to render a not guilty verdict, and the jury believed that too.

    So it's extremely concerning for me to see various news outlets claiming that this verdict has "sets us back 30 years" or that it will disincline women to report rape. The fact is that this man is innocent; if he is innocent then you cannot assert that this result is wrong because of its broader implications. What matters is whether the accused is guilty or not and he was found not guilty; the tone in a lot of the coverage almost implies that he really is guilty and he "got off scot free". That is unacceptable.

    Thoughts?
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    (Original post by AlexanderHam)
    https://www.theguardian.com/football...-of-in-retrial

    The footballer Ched Evans, who was found guilty of rape a few years ago, who successfully appealed his conviction leading to a retrial, has now been found not guilty. It's a very sad case as Evans spent two and a half years in prison for a crime he did not commit. His name has been traduced and his reputation will likely never recover. He may struggle to get hired by another football team.

    I read the original judgment and appeal judgment, and it was my view that a rape conviction could not be sustained. The woman was not claiming that she was raped, she simply claimed that she could not remember. There are some complex issues around whether it's possible that someone's physiology means that they are capable of consenting while intoxicated (which is entirely possible; the law accepts that drunken consent is still consent) but that they also forget that they consented.

    There's also the question of whether Ched Evans had reasonable grounds to believe that the woman was consenting. However, the original verdict that found Evans guilty and the other footballer not guilty was logically impossible to sustain given the prosecution's argument was that the victim was so intoxicated that she was fundamentally incapable of giving consent; they could either both be guilty or neither but not one only on the basis of how the prosecution pleaded their case.

    Overall, I believe there was sufficient grounds for doubt to render a not guilty verdict, and the jury believed that too.

    So it's extremely concerning for me to see various news outlets claiming that this verdict has "sets us back 30 years" or that it will disincline women to report rape. The fact is that this man is innocent; if he is innocent then you cannot assert that this result is wrong because of its broader implications. What matters is whether the accused is guilty or not and he was found not guilty; the tone in a lot of the coverage almost implies that he really is guilty and he "got off scot free". That is unacceptable.

    Thoughts?
    A few points:
    (1) It is entirely possible that she consented to MacDonald but not Evans. She left the club with MacDonald, was seen talking to him on the way home and carried on into the hotel. However no one heard Ched ask her anything, he arrived and left through the fire exit. She passed out shortly after and pissed herself.

    Ched claimed that she asked him to 'f*ck me harder', yet no one including his friends outside the room or MacDonald heard him ask this.
    MacDonald swore under oath that Ched did not ask her, Ched swore that he did. *One of them is lying and as another poster pointed out, MacDonald had nothing to gain by lying.

    *What was his reasonable belief based on? The fact he was a footballer? Or the fact that he assumed that because she had sex with someone else trust she would consent to him?

    (2) The original trial and two appeal courts both found him guilty so it's not exactly an open and shut case.

    (3) Do you not think it's at all strange that the magical evidence was only brought forward when a £50,000 award was offered and not during the original trial or the two subsequent appeals? How convenient that as soon as a monetary award was offered they get the evidence they want.

    (4) The reason people say this sets us back is because the judge allowed the girl
    to be questioned on her previous sexual history with other men including what her favourite positions were. As well as being uttterly humiliating and distressing for a person what relevance does that have to the case?
    The fact she had consented to having sex with different men has nothing to do with whether she consented in this case.*

    It's a dangerous precedent because it brings back the idea that if a girl is promiscuous that you are entitled to assume consent and that she is almost 'asking for it'.

    Why should her previous sexual history with different men have any relation to whether she consented in this case?

    Could you imagine if you were a rape victim and in court you were made to describe in detail your sexual encounters with other men including what your favourite positions are? Is that acceptable? Stuff like that stops women coming forward to report rape. It propels the rape myth that promiscuous women are 'asking for it'

    Whether a woman or man consented to having sex with a different person on a different occasion should have no relevance at all to whether she consented to someone else. *

    * (5) Not guilty does not mean the same as being proved innocent. There is a difference. Not guilty means that there was no sufficient evidence to prove guilt beyond all reasonable doubt. The Jury could be 70% sure he was guilty but would still have to acquit if there was reasonable doubt.
    Not guilty means not guilty, it doesn't necessarily mean innocent.*

    (6) It highlights why judging it on the defendant's reasonable belief is flawed as it means that even if the victim was not consenting it allows the accused to get away with it because they mistakenly and carelessly assumed that they were.* Surley it should matter more whether the complainant was consenting not whether the defendant thought they were? Surely the defendant should have to actively seek consent rather than assuming that she was consenting because she has sex with his friend?


    (6) The treatment of the victim on social media has been absolutely disgusting. She has received multiple death threats and been named on social media even though legally she has anonymity. She has had to change her name five times because of it. Yet you have more sympathy with a rich footballer who though he could cheat on his girlfriend and take advantage of an extremely drunk girl because he was a footballer?

    *How does the fact that a complainant receives death threats and that promiscuous women are regarded as being less likely to be raped not set us back?*
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    Bornblue

    There is no precedent. The court of appeal is bound by previous decisions and prior sexual history has been allowed in certain situations for some time now, since 1999 in fact.
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    (Original post by Kvothe the Arcane)
    Bornblue

    There is no precedent. The court of appeal is bound by previous decisions and prior sexual history has been allowed in certain situations for some time now, since 1999 in fact.
    I know.
    My point is that I fail to see at all what relevance her sexual history with other men has with whether she was consenting on this occasion?

    It doesn't matter if she's had sex with 100 men or none, it absolutely has no relevance to whether she was consenting on this occasion.

    Allowing the complainant to be questioned on her previous sexual history with other men and being asked to describe her favourite sexual positions in detail gives rise to a dangerous rape myth, that girls with a more liberal attitude towards sex are less likely to be raped on any given case.

    Please tell me what the relevance is between her previous sexual history and whether she gave consent in this case?*
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    (Original post by Bornblue)
    Please tell me what the relevance is between her previous sexual history and whether she gave consent in this case?*
    She used the exact words and position with these other men.

    As the prosecution's argument was that she was too drunk to consent, the defence argued that it's too likable for similar situations to have occur to be considered coincidental. It wasn't that they were calling her a slut, just supporting the defendant's testimony that those words were uttered. .
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    (Original post by Kvothe the Arcane)
    She used the exact words and position with these other men. * .
    What she did with other men is totally irrelevant. My girlfriend likes me to f**ck her doggy style, does that mean she would be necessarily consenting if she ever did that with someone else?

    As for the words, no one else heard those words. Not MacDonald nor his brother outside the room. MacDonald said under oath that Ched didn't ask her nor did she say that.

    Do you think it is acceptable for a girl to have her sexual history with other men be brought up in a court of law and be questioned over her favourite sex positions?

    Imagine if it was your daughter and she was questioned about her sexual history, the number of men she slept with, what sexual positions she liked and what she said and what noises she made during sex. Utterly humiliating.

    Whether or not she consented to different men on different occasions has nothing to do with whether she consented on this occasion.

    Otherwise we simply go 'ah well she consented to other men so she probably wasn't raped'.

    Also it is entirely possible that she was in a position to consent to Clayton but blacked out a few minutes later. Also Clayton had more reason to reasonably assume consent as she had left the club with him and was talking to him in the hotel unlike with Evans who's reasonable belief seems to be based on he fact that he was a footballer
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    There are at least two current threads on this already

    http://www.thestudentroom.co.uk/show....php?t=4366766 - started after the verdict in the second trial
    http://www.thestudentroom.co.uk/show....php?t=3634451 - started when his second appeal was sent off

    and at least a couple more that haven't been resurrected.

    (Original post by Bornblue)
    A few points:
    (1) It is entirely possible that she consented to MacDonald but not Evans.
    It's vastly more likely that she was too drunk to consent to sex with either McDonald or Evans but ..

    She left the club with MacDonald, was seen talking to him on the way home and carried on into the hotel. However no one heard Ched ask her anything, he arrived and left through the fire exit. She passed out shortly after and pissed herself.
    .. for the reasons you give, McDonald may have had a reasonable belief in her consent but, beyond any reasonable doubt, Evans did not.

    (Oh, she didn't leave the club with McDonald, she "literally stumbled across McDonald's path" in the street, but did indeed talk with him and go off with him.)

    Most of the rest of what you say is spot on - even if it doesn't mention that the main difference between the two trials wasn't the dodgy new evidence, but that the second jury were told that they could not see McDonald's statement, even though they asked for it, because he wasn't called as a witness. Consequently, they couldn't know that McDonald has always denied asking the victim if Evans could have sex with her, as Evans claims.

    (6) It highlights why judging it on the defendant's reasonable belief is flawed as it means that even if the victim was not consenting it allows the accused to get away with it because they mistakenly and carelessly assumed that they were.* Surley it should matter more whether the complainant was consenting not whether the defendant thought they were? Surely the defendant should have to actively seek consent rather than assuming that she was consenting because she has sex with his friend?
    With very few exceptions, before you can be convicted of a crime two things need to have been demonstrated:

    1. That you did it and
    2. That you wanted to do it or at least didn't mind doing it.

    At one point, any genuinely held belief in consent was a defence. With the Sexual Offences Act 2003 coming into force, that changed to require the belief to be reasonable. It's not difficult to have a reasonable belief, but as this case clearly demonstrates, some men who insist that they believed she was consenting can fail to have a reasonable belief.

    'When I arrived uninvited, unexpected and unwanted in the room, she was shagging my mate, therefore she'll shag me' is not the basis for a reasonable belief in consent when neither man asks...
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    (Original post by Bornblue)
    A few points:
    (1) It is entirely possible that she consented to MacDonald but not Evans
    Not on the basis of the prosecution's case. The prosecution's case was that she was too drunk to consent, period. They had to adopt that theory of the case because they actually didn't know what happened and they didn't have any actual complaint from the "victim" (she says she doesn't remember). So they can't really say "X happened, then Y happened, then Z didn't happen", they don't have sufficient information to do so. The only basis for prosecution is claiming she was too intoxicated to consent.

    With that case, Evans cannot be guilty while McDonald is not guilty. Now you might say "Well, it's possible Z happened". Anything is possible, but that's not the case that was being tried; the jury decides based on the case put to them by the prosecution, not based on speculative alternative theories. Based on the case as it was pleaded, it is not logically possible that one is guilty and the other not

    unprinted
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    This might help

    https://thesecretbarrister.com/2016/...ed-evans-case/

    fairly unbiased and factual so worth reading.
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    (Original post by AlexanderHam)
    Not on the basis of the prosecution's case. The prosecution's case was that she was too drunk to consent, period. They had to adopt that theory of the case because they actually didn't know what happened and they didn't have any actual complaint from the "victim" (she says she doesn't remember). So they can't really say "X happened, then Y happened, then Z didn't happen", they don't have sufficient information to do so. The only basis for prosecution is claiming she was too intoxicated to consent.

    With that case, Evans cannot be guilty while McDonald is not guilty. Now you might say "Well, it's possible Z happened". Anything is possible, but that's not the case that was being tried; the jury decides based on the case put to them by the prosecution, not based on speculative alternative theories. Based on the case as it was pleaded, it is not logically possible that one is guilty and the other not

    unprinted
    Your argument is flawed for a number of reasons.

    (1) In order to convict someone you need to prove (a) that the complainant was not consenting *and (b) that the defendant did not reasonably believe that they were consenting. The prosecution's case was that Evans raped the complainant.

    (2) *It is entirely, 100% possible that the complainant had capacity to consent to MacDonald but then lost capacity as she started to black out when Evans arrived. When you drink a lot of alcohol, it can just suddenly hit you.

    (3) Even if the complainant did have the capacity to consent, it does not mean she consented. *It then goes to reasonable belief in consent.

    The reality is that she probably did not have the capacity to consent to either given that she was stumbling and passed out and pissed herself.
    However the key difference is that MacDonald could argue more convincingly that he reasonably believed she was consenting as she met him on the street and agreed to go back with him and was talking to him as they entered the hotel.

    Evans on the other hand turned up uninvited and saw his friend having sex with a girl. He claims that MacDonald asked her if she wanted to have sex with Evans however MacDonald denied he asked her this under oath.*

    So what was Ched's reasonable belief based upon? He said that she asked him to 'f*ck me harder' but no one else, including his friends stood outside or MacDonald heard this.*
    His reasonable belief seemed to come from the fact that he was a footballer.


    The reason the trial sets us back is not because of the verdict but because the judge allowed the complainant to be questioned in court about her previous sexual history with other guys, asking her to detail her favourite sex positions and what noises and words she made and used during sex.

    Whether or not she consented to other guys at other times has no relevance *at all to whether she consented in this case. It propels the rape myth that girls with liberal attitudes about sex are less likely to be raped.

    Also think about how humiliating it must be. Imagine your daughter was being questioned in a court of law about her favourite sex positions and the noises she made during sex. All of which had nothing to do with whether she was consenting to Evans. You are quite progressive so why do you not have a problem with women effectively being slut shamed in a court of law?


    * And how about all the death threats she received online and how her name was released on social media even though she had legal anonymity? *
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    (Original post by AlexanderHam)
    Not on the basis of the prosecution's case. The prosecution's case was that she was too drunk to consent, period. They had to adopt that theory of the case because they actually didn't know what happened and they didn't have any actual complaint from the "victim" (she says she doesn't remember). So they can't really say "X happened, then Y happened, then Z didn't happen", they don't have sufficient information to do so. The only basis for prosecution is claiming she was too intoxicated to consent.

    With that case, Evans cannot be guilty while McDonald is not guilty. Now you might say "Well, it's possible Z happened". Anything is possible, but that's not the case that was being tried; the jury decides based on the case put to them by the prosecution, not based on speculative alternative theories. Based on the case as it was pleaded, it is not logically possible that one is guilty and the other not

    unprinted
    Quick answer.

    In the initial trial the judge made clear that it was up to the jury to convict both defendants, acquit both or convict one and acquit the other.

    That is because there are two criteria which must be met for a conviction:

    (1) The complainant was not consenting AND
    (2) The defendant did not reasonably believe they were consenting.

    Thus it is entirely possible (and far from logically impossible) that the jury felt that although she did not have the capacity to consent , that MacDonald reasonably believed she was consenting but Evans did not. Especially as both Evans and Macdonald met the victim in different circumstances.


    So please stop saying it is impossible to convict one but not the other when it very much is possible.
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    (Original post by Bornblue)
    (1) In order to convict someone you need to prove (a) that the complainant was not consenting *and (b) that the defendant did not reasonably believe that they were consenting. The prosecution's case was that Evans raped the complainant.
    The prosecution's case was that the complainant was incapable of consenting due to intoxication, period; that was the basis of their charge that he contravened s1 of the Sexual Offences. The charge stands or falls based on the case pleaded by the prosecution, and it is for them to prove it beyond a reasonable doubt, not for the defendant to prove their innocence.

    The prosecution advanced the argument that the complainant was fundamentally incapable of consenting, thus both Evans and McDonald were charged. The inconsistency of the verdicts was a core basis of appeal.

    Your argument is flawed for a number of reasons.
    You don't have a law degree and are not a law student, are you? From what you've written it seems that you don't really understand how prosecution of indictable offences occurs in this jurisdiction, and the basis on which charges are brought.

    The defendant is judged based on the case advanced by the prosecution, not by some speculative alternative possibility that you seem to think may have occurred or conjectures that can justify the guilty verdict ex post facto (conjectures that were not advanced by the prosecution). The case advanced was that the defendant was not capable of consenting and one of the core pieces of evidence they adduced was the complainant's unsteadiness on her feet and the perception of the hotel manager as she walked in (i.e. before she had sex with McDonald). If it has been found that she was capable of consenting then the whole basis of the charge falls.

    Given the CCRC and the Court of Appeal accepted the original conviction was flawed, and given he has now been acquitted, it seems very odd that you are arguing the contrary based on speculation of how in some alternative scenario Evans might have been guilty rather than analysing it based on the case the prosecution actually advanced. It seems that your position is a mix of ignorance of how the English legal system works and political prejudice that causes you to adhere to the sort of mindset that ajudges all men are guilty of rape in one way or another. Your argument does not stand the slightest scrutiny based either on fairness and natural justice, or on an analysis of the legal situation.

    If someone is convicted and it is found that they could not have committed the crime according to how the prosecution pleaded their case, the crown cannot come back and say, "Well, we think he might have done it this way instead". That is not how it works, but that is exactly the sort of reasoning you are using (and again, entirely speculative; there is no evidence whatsoever to support your assertions). In fact, the only evidence at all that he raped the complainant was her apparent physical state upon entering the hotel, that it indicated she was too intoxicated to render valid consent. Your approach seems to be that Evans has to prove his innocence

    So please stop saying it is impossible to convict one but not the other when it very much is possible.
    It is impossible to convict one and not the other based on the case that was advanced by the prosecution. You are going into all these speculations about how the jury might have justified fundamentally inconsistent verdicts. From this it is clear you have not read the relevant judgments and familiarised yourself with the case as pleaded.

    You also seem to be confused about the interaction between s1(1)(b) and s1(1)(c) under the act; considerations of c are not entered into until it has been factually established that consent was absent. You can't convict someone where consent was present but they had no reasonable belief that it was present. Thus you are chasing your own tail when you start going into speculations about the different bases on which McDonald and Evans might have possessed the requisite reasonable belief; none of that can be assessed if s1(1)(b), that is lack of consent, has not been established. The crown's case viz. s1(1)(b) re Evans falls apart if McDonald is acquitted because the facts pleaded to support the lack of consent do not establish lack of consent if McDonald is acquitted.
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    So what we have is a verdict that some people agree with and others do not.
    Whereas, before the re-trial we had a verdict that some people agreed with and others did not.
    However, as the re-trial overrules the earlier verdict, it is irrelevant who agrees with what, only that the jury made a decision based on the evidence put to them.
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    (Original post by AlexanderHam)
    The prosecution's case was that the complainant was incapable of consenting due to intoxication, period; that was the basis of their charge that he contravened s1 of the Sexual Offences. The charge stands or falls based on the case pleaded by the prosecution, and it is for them to prove it beyond a reasonable doubt, not for the defendant to prove their innocence.

    The prosecution advanced the argument that the complainant was fundamentally incapable of consenting, thus both Evans and McDonald were charged. The inconsistency of the verdicts was a core basis of appeal.



    You don't have a law degree and are not a law student, are you? From what you've written it seems that you don't really understand how prosecution of indictable offences occurs in this jurisdiction, and the basis on which charges are brought.

    The defendant is judged based on the case advanced by the prosecution, not by some speculative alternative possibility that you seem to think may have occurred or conjectures that can justify the guilty verdict ex post facto (conjectures that were not advanced by the prosecution). The case advanced was that the defendant was not capable of consenting and one of the core pieces of evidence they adduced was the complainant's unsteadiness on her feet and the perception of the hotel manager as she walked in (i.e. before she had sex with McDonald). If it has been found that she was capable of consenting then the whole basis of the charge falls.

    Given the CCRC and the Court of Appeal accepted the original conviction was flawed, and given he has now been acquitted, it seems very odd that you are arguing the contrary based on speculation of how in some alternative scenario Evans might have been guilty rather than analysing it based on the case the prosecution actually advanced. It seems that your position is a mix of ignorance of how the English legal system works and political prejudice that causes you to adhere to the sort of mindset that ajudges all men are guilty of rape in one way or another. Your argument does not stand the slightest scrutiny based either on fairness and natural justice, or on an analysis of the legal situation.

    If someone is convicted and it is found that they could not have committed the crime according to how the prosecution pleaded their case, the crown cannot come back and say, "Well, we think he might have done it this way instead". That is not how it works, but that is exactly the sort of reasoning you are using (and again, entirely speculative; there is no evidence whatsoever to support your assertions). In fact, the only evidence at all that he raped the complainant was her apparent physical state upon entering the hotel, that it indicated she was too intoxicated to render valid consent. Your approach seems to be that Evans has to prove his innocence


    For the record I do have a law degree and did my dissertation on the law of sexual offences, so yes I am well qualified to talk on this issue.*


    ** You do not understand how rape trials work. For a conviction for rape *the prosecution needs to prove TWO issues beyond reasonable doubt.

    (1) That the complainant was not consenting
    (2) That the defendant did not reasonably believe that the complainant was consenting.

    *It is ENTIRELY possible that the jury felt that she was too incapacitated to consent BUT that McDonald reasonably believed she was consenting but Evans did not.

    Proving someone did not consent or did Not have *capacity is not sufficient. You also need to show a lack of reasonable belief in consent from the defendant.

    You are quite simply wrong here. Even the judge in both the first and second trial said it was entirely possible to convict one and acquit the other. *
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    (Original post by Bornblue)
    It is ENTIRELY possible that the jury felt that she was too incapacitated to consent BUT that McDonald reasonably believed she was consenting but Evans did not.
    It's astonishing that you are so unfamiliar with how s1 of the act works.

    Consideration of s1(1)(c) can only occur once s1(1)(b) has been established. A conviction can only stand on the basis of the case pleaded by the prosecution, not some speculative alternative reasoning that you favour.

    If the factual basis on which the crown established s1(1)(b) for both men has been fundamentally undermined then considerations of reasonable belief are irrelevant. You do realise the crown has to prove beyond reasonable doubt that consent was absent, and that if it can't then considerations of reasonable belief are irrelevant? If ss75, 76 were engaged then you would have a substantive point, but given the crown's basis for asserting that the s1(1)(b) state of affairs had occurred has been fatally undermined, your speculations about reasonable beliefs are irrelevant. s1 of the act is a two-stage test and you seem to be approaching it as if both are independent clauses that can be considered separately from one another.

    The fact you didn't know this is astounding. Anyway it's entirely clear that your position is based on political prejudice and a determination to smear a man who has been established to be innocent.

    Anyway, now that Evans has been acquitted I look forward to the release of the Court of Appeal's reasoning in quashing the original conviction (which is subject to reporting restrictions). I suspect the reasoning I have adopted is a significant element in the decision
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    (Original post by AlexanderHam)
    It's astonishing that you are so unfamiliar with how s1 of the act works.

    Consideration of s1(1)(c) can only occur once s1(1)(b) has been established. A conviction can only stand on the basis of the case pleaded by the prosecution, not some speculative alternative reasoning that you favour.

    If the factual basis on which the crown established s1(1)(b) for both men has been fundamentally undermined then considerations of reasonable belief are irrelevant. You do realise the crown has to prove beyond reasonable doubt that consent was absent, and that if it can't then considerations of reasonable belief are irrelevant? If ss75, 76 were engaged then you would have a substantive point, but given the crown's basis for asserting that the s1(1)(b) state of affairs had occurred has been fatally undermined, your speculations about reasonable beliefs are irrelevant. s1 of the act is a two-stage test and you seem to be approaching it as if both are independent clauses that can be considered separately from one another.

    The fact you didn't know this is astounding. Anyway it's entirely clear that your position is based on political prejudice and a determination to smear a man who has been established to be innocent.

    Anyway, now that Evans has been acquitted I look forward to the release of the Court of Appeal's reasoning in quashing the original conviction (which is subject to reporting restrictions). I suspect the reasoning I have adopted is a significant element in the decision
    What's astonishing is your complete lack of knowledge about how our legal system works and how a rape trial takes place.
    My position is based on what the law is.

    I am not saying evans is guilty, I am saying as the judge said in both trials, that there is no inconsistency in convicting one and not the other.

    The law on rape is governed by the SOA 2003 and to convict someone of rape you need to prove *that there was no consent AND that there was no reasonable belief in consent.
    *Thus while she did not consent, McDonald may have reasonably believed she did which would acquit him, whereas the jury held that Evans did not reasonably believe she was.

    *That is the law on rape. Quite frankly you are talking utter rubbish.*
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    (Original post by AlexanderHam)
    Not on the basis of the prosecution's case. The prosecution's case was that she was too drunk to consent, period.
    It was that she was too intoxicated to consent AND that the two men did not have a reasonable belief in her consent.

    Evidence for the former unanimously convinced the first jury that she was. (It may well have convinced the second jury too, we'll never know.)

    Given that she was not able to consent, the men would have been convicted unless they had one of the statutory defences, including having had a reasonable (albeit mistaken) belief in her consent. As both men said that they did, it was up to the prosecution to prove beyond a reasonable doubt that they did not.

    Fortunately for the prosecution, both men had talked to the police...

    The only basis for prosecution is claiming she was too intoxicated to consent.

    With that case, Evans cannot be guilty while McDonald is not guilty. Now you might say "Well, it's possible Z happened". Anything is possible, but that's not the case that was being tried; the jury decides based on the case put to them by the prosecution, not based on speculative alternative theories. Based on the case as it was pleaded, it is not logically possible that one is guilty and the other not
    You're ignoring the fact that most of the prosecution case was based on what the two men said they had done and not done.

    In the first trial, McDonald was able to give evidence that he may have had a reasonable belief, but - in large part because of McDonald's evidence - Evans was not. The single Court of Appeal judge and a full panel of three, including the top judge in England confirmed that there is no inconsistency whatsoever:

    ".. 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, 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 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. These seem to us to be matters entirely open to the jury. There is no inconsistency."

    I still haven't seen the second Court of Appeal judgement, but I'd bet that they didn't say there was an inconsistency either.

    In the second trial, without McDonald saying on oath that his mate isn't telling the truth about what happened, Evans was acquitted. Again, we'll never know for sure, but I strongly believe that the inconsistency between Evans' two verdicts is down to the fact that the first jury heard McDonald's evidence and that the second one did not, despite asking for it.

    (Original post by AlexanderHam)
    The prosecution's case was that the complainant was incapable of consenting due to intoxication, period; that was the basis of their charge that he contravened s1 of the Sexual Offences. The charge stands or falls based on the case pleaded by the prosecution, and it is for them to prove it beyond a reasonable doubt, not for the defendant to prove their innocence.
    True, but once the prosecution establish - as they must have done - that she was too intoxicated and lacked capacity to consent, then they have to provide at least a reasonable doubt about their guilt based on having a reasonable belief in her consent.

    Most men would find that easy, but then most men don't stick their un-condomed penis in someone who they don't know and have never spoken to, having arrived in the room uninvited, unexpectedly and unwanted, without asking first. This is what Evans said he did!

    He doesn't regard it as rape, but the two main reasons for this claim of a reasonable belief - that McDonald asked for him and that she 'repeatedly' 'cried out' "**** me harder" - are contradicted by the four people who could see or hear into the room, one of whom is his brother, two are mates and the fourth is someone with nothing to gain from 'his' hotel being known as 'the one where Evans raped the woman'.

    The inconsistency of the verdicts was a core basis of appeal.
    And, as quoted above, that was completely dismissed.

    If it has been found that she was capable of consenting then the whole basis of the charge falls.
    Yep, that was certainly in the first judge's summing up.

    If someone is convicted and it is found that they could not have committed the crime according to how the prosecution pleaded their case, the crown cannot come back and say, "Well, we think he might have done it this way instead". That is not how it works
    You're also not allowed as a defendant to try one defence at the trial and then another at the appeal, but that's what Evans tried at least the first time. At the trial, the victim was attacked as lying about not remembering what happened, at the first appeal, Evans tried to put evidence that she wasn't: "In effect, it is now proposed that a new expert should be called to disprove the evidence given by the former defence expert" is the Court of Appeal saying '**** off' in their usual polite manner.
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    (Original post by Kvothe the Arcane)
    She used the exact words and position with these other men.

    As the prosecution's argument was that she was too drunk to consent, the defence argued that it's too likable for similar situations to have occur to be considered coincidental. It wasn't that they were calling her a slut, just supporting the defendant's testimony that those words were uttered. .
    I think most women have had sex doggy style and asked for it harder. It's not like it was an uncommon position or thing to say.
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    (Original post by Ella-keturah)
    I think most women have had sex doggy style and asked for it harder. It's not like it was an uncommon position or thing to say.
    Even I've been ****ed in doggy style and asked for it harder...
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    (Original post by AlexanderHam)
    If the factual basis on which the crown established s1(1)(b) for both men has been fundamentally undermined then considerations of reasonable belief are irrelevant.
    What's the evidence that it was? As I understand it, because the defence would have big problems in arguing that she did not lack capacity - they've previously accepted that she was indeed too drunk to remember any of it, for example - the 'gosh, is there a reward for saying this' evidence was used to try and show Evans had a reasonable belief in consent, not suggest that she wasn't pissed out of her skull.
 
 
 
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