To be totally baffled (Ched Evans related)

[soapboxqueen]

Just reading in the guardian that Ched Evans has applied to the Criminal Cases Review Commission to review his case. That's fine because it is part of our due process and legal system.

However, in the article it points out that his girlfriend's father is paying for appeal barristers, private detectives and even offering a reward for information in order to help his appeal. Why would you do that? Why would you put up so much money to protect a person who at best (from their perspective at least) cheated on your daughter in a rather deplorable fashion and at worst a rapist? Why would got want your daughter to be with such a person?

I really don't understand.

I'll see if I can get the link to work.

His direction was the exact opposite. He said they had to consider them separately:

www.crimeline.info/uploads/cases/2012ewcacrim2559.pdf

""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."

What did the judge say during sentencing that would lead you to believe he expected the same verdict for both?

According to the BBC, the judge said, "The complainant was 19 years of age and was extremely intoxicated. CCTV footage shows, in my view, the extent of her intoxication when she stumbled into your friend. As the jury have found, she was in no condition to have sexual intercourse. When you arrived at the hotel, you must have realised that."

That sounds to me like the judge saying the victim was in no condition to have sex when she stumbled into McDonald. If that was true McDonald would also be guilty of rape unless he could show that he reasonably believed she consented and was not too intoxicated. It may just be poor wording on the part of the judge but to me it sounds like he was expecting the same verdict for both. I am, of course, assuming that the BBC's report is correct and complete.

I'm not sure I understand the nitpicking

I'm sorry it appears to be nitpicking to you but in legal terms there is a significant difference between a ruling and a comment by the judge during sentencing.

A ruling is a finding of fact or determination of a point of law which is binding unless overturned by a higher court. The jury is not allowed to disagree with any ruling made by the judge.

The judge's comments are simply the judge's view of the evidence and carry no legal force whatsoever. If the jury interpreted the evidence differently (which there is no way of knowing) their view trumps the judge's view. The judge's comments during sentencing are no more authoritative than the view of anyone other than the jury who has reviewed the evidence presented in court. Indeed, sometimes the judge's comments during sentencing aren't even a reflection of the judge's view. If the judge thinks the defendant is not guilty but the jury finds them guilty the judge still has to come up with some kind of lecture to the defendant about how awful he/she is and justifying the sentence. There are a number of cases where I know for a fact that the judge didn't believe a single word they said during sentencing. That's why I am not keen on people using sentencing comments as if they prove a point.

I said this earlier but I have been told by someone with contacts with people who were in the court, that the other footballer was 'more believable' because he was 'more articulate' in court.

Sadly - sometimes a jury can decide on a case purely on how the defendant presents themselves. if he came across as more trustworthy then maybe that is why. They believed what he said and how he said it, but did not believe what CE said.

The appeal decision supports your interpretation PRH:

"We also note that in his sentencing remarks the judge was satisfied that the complainant lacked the capacity to consent to sexual activity. That was simply his view; he would not know how the jury had reached its own decision, but we must respect his analysis. But however it is examined, and assuming that he was wrong about the basis on which the jury reached its conclusion, we find nothing illogical or inconsistent about the verdicts."

PRH has also speculated on the jury's reasoning

I confess I have to a degree. I was trying to point out that the assumption repeated frequently on this thread that the jury found that the victim was too intoxicated to consent is not necessarily the case. I have said that it appears to me this may not have been their reasoning but I have (I hope) always said that neither I nor anyone else knows for sure. My apologies if that is unhelpful.

MyEmpireOfDirt

The BBC report including the judge's comments can be found here.

Sentencing remarks aren't generally available to the public.

On the basis of what he said (which may or may not be what he thought!) - if he expected them to be the same then he expected both to be guilty!

That's a really good point Fanjo.

Of course juries make judgements based on personal characteristics which have been unconsciously affected by cultural influences.

It's one of the reasons so many rapists get off - because men are in general considered automatically more credible, more honest and more trustworthy than women.

Yes, based on the BBC report, and the comments on the sentencing in the appellate judgment, I think it is a leap to take what the judge said at sentencing (which was that the victim lacked the capacity to consent) and say that that means he thought the same verdict should have been returned for both.

After all, unless I am mistaken, the victim could have lacked the capacity to consent but CM have reasonably thought she did consent (CE's belief not being reasonable).

I agree that sentencing remarks are totally separate from rulings during the actual trial and directions to the jury.

Here is the full transcript of the refused appeal.

sashh "I think there is a kind of superstition, to think that there is nothing you can do to stop yourself being raped is such a bleak thought, that people want to think there are things you can do to stop it."

I agree with you here, I think some people would rather believe that the victim somehow did something to bring the rape on herself rather than believe that give the right (wrong?) set of circumstances the rapist could just as easily target them as well.

There are things you can do to at least try and stop it though. You can raise your children to believe in enthusiastic consent, which is infinitely better than a "no means no" soundbite some rapists and their supporters try to twist (she didn't say no, so she must have meant yes etc).

And you can constantly challenge the reinforcement that the victim shares some blame (she was drunk so don't get drunk/she walked home so take a taxi/the taxi driver raped her so go home with friends/her friend raped her so she must have led him on/she led him on by wearing that outfit and drinking that one drink too many/she was drunk so don't get drunk…) It's a vicious circle of victim blaming that needs to be challenged every time it crops up and eventually that message will sink in, even to rapists like Evans and his supporters.

That's what you can do to try and stop rape. Keep saying, long and loud, to anyone and everyone that rapists, not victims, are to blame and educate your children to grow up understanding the need for enthusiastic consent only. Not assumptions of consent, not an outright refusal that you can then claim you thought was a yes or a maybe, not pressure until consent is given. Nothing less than enthusiastic consent.

It's not about telling victims to change or accept part or all of the blame, it's about telling rapists and potential rapists and the people who support them that rape is wrong and the rapist is 100% to blame.

It's good to see so many people here reinforcing that already.

You've made a massive assumption there

I've assumed the BBC has reported the judge's remarks correctly. I don't think I have made any other assumption. And reports from other news outlets (Independent, Daily Mirror, Daily Mail, etc.) appear to agree with the BBC.

If the report is correct it seems clear that the judge was saying that the victim was too intoxicated to consent to sex when she met McDonald. He said Evans must have realised this. Since McDonald had significantly more exposure to the victim than Evans one would have thought that, by the same token, McDonald must have realised it. But that makes McDonald guilty of rape, contrary to the jury's verdict. Which leaves me thinking that, assuming the BBC's report is correct and complete, either the judge was expecting the same verdict in both cases or his remarks were poorly worded.

Even if the judge was expecting the same verdict it does not mean the jury got it wrong. The judge was quite correct in his summing up to say that the two cases should be considered separately and that they didn't have to return the same verdict for both. Even if the jury was wrong, it is possible they were wrong in finding McDonald not guilty and the verdict on Evans was correct.

From that appeal denial

"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, 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."

PRH what you say below is a massive leap from what the judge actually said to trying to get into his head to read what he is thinking. I am sorry but I just do not read his sentencing remarks (the little of them that are publicly available) as saying he expected there to be the same verdict.

"If the report is correct it seems clear that the judge was saying that the victim was too intoxicated to consent to sex when she met McDonald. He said Evans must have realised this. Since McDonald had significantly more exposure to the victim than Evans one would have thought that, by the same token, McDonald must have realised it. But that makes McDonald guilty of rape, contrary to the jury's verdict. Which leaves me thinking that, assuming the BBC's report is correct and complete, either the judge was expecting the same verdict in both cases or his remarks were poorly worded."

(and, if anything, if there should have been the same conviction then it should have been both guilty not both not-guilty - yes, I am speculating now - So if I were CE's camp, I wouldn't be playing up with inconsistent verdict thing.

So why have you repeatedly said that the judge's comments indicated he expected

I said it yesterday afternoon when someone commented that Evans' sister complained about him being singled out and suggested this may be what was behind that comment. I mentioned it again today when Sabrina said that the judge directed the jury to consider the cases separately, which is true and I didn't think anyone had suggested otherwise. Everything else I have said on the subject has been in response to others asking questions or challenging my comment. As I said in my last post, even if the judge was expecting the same verdict in both cases it does not mean he was right.

After all, unless I am mistaken, the victim could have lacked the capacity to consent but CM have reasonably thought she did consent (CE's belief not being reasonable).

I struggle with that. McDonald had far more exposure to the victim than Evans. I therefore find it hard to see how McDonald could reasonably believe she had the capacity to consent when she didn't. Note that his defence did not argue that he reasonably believed she consented. They argued that she had the capacity to consent and did so. That does not, of course, prevent the jury from finding he had a reasonable belief. So yes, it is possible that this is how the jury arrived at their verdicts.

WellNow "Just a musing on the female jurors issue, do you think its in part that by convicting someone they may have to acknowledge that they have been raped?

You see it on threads here, someone asking is this behavior/action a bit off?

Posters come on and gently say not only is it 'off' its rape.

You then get others coming on saying of course its not rape, my husband/boyfriend does that? Are you calling my Nigel a rapist??

That the jurors in non stranger rapes are thinking this way? Thinking that if I convict this man that means that I've been raped, that my Nigel is a rapist. And can't deal with that thought?"

I could see very clearly what you mean by this, I've been having a conversation on Facebook with a friend of a friend who tried to defend Evans by saying she had seen the CCTV footage and comments on his website and doubted his conviction because of it.

There was a bit of back and forth discussion, during which she said "I've been too drunk to consent to sex lots of times but that doesn't make my boyfriend a rapist."

No it doesn't if she was drunk but equally and enthusiastically keen and wanted to have sex as much as he did.

But yes it does make him a rapist if she was so drunk she was unconscious or if she was unwilling, confused and unable to understand what he wanted to do or what she might be agreeing to (if she agreed) and her boyfriend continued regardless. And it especially does if her boyfriend then decided to invite three strangers round to take a turn and film it, which happened to Evans victim.

She also said "well if the woman was too drunk to consent, Evans must have been too drunk to rape her because he'd been drinking too. It's not fair to say she didn't know what she was doing because she was drunk but expect him to know what he was doing when he'd been drinking as well."

I've seen that said a lot by people supporting him.

It was also quite difficult to get her to understand that a website set up to 'clear his name' might just have a bias on it and not be an entirely reliable place to get your only information about the case.

chaya5738

Personally I don't think it is a massive leap but you don't have to agree with my logic.

So if I were CE's camp, I wouldn't be playing up with inconsistent verdict thing

Yes, inconsistent verdict could cut both ways. However, on appeal it could only work in Evans' favour which would be why his legal team tried that argument - if the appeal court had decided the verdicts were inconsistent they would have had to acquit Evans. It didn't get them anywhere. Not surprising really. As we have seen with many miscarriages of justice in the past the Court of Appeal is very reluctant to overturn guilty verdicts. Note that I am NOT saying this is a miscarriage of justice.