Ched Evans Cleared - I Still Believe Her

[ChampagneCommunist]

Just seen this in the BBC website. His poor, poor victim

Without evidence, vorpal, that is subjective.

Please come and discuss on my thread in feminism chat Datun (and anyone else), I've assembled some great resources to discuss the sexual history issue in this case and others but it's very lonely there currently

What's striking to me from my reading is how many of these attempts to admit sexual history evidence in rape cases were just totally tenuous and dodgy. Some succeeded, some didn't. So it's worth the defence giving it a go because any sexual history evidence at all has apparently been found likely to influence the jury, due to prejudice against "promiscuous" women. And a big high profile case like this arguably makes that kind of tactic more likely.

Yes Datun, that is what I am saying.

I felt that the initial conviction was very dodgy based on the evidence that I saw reported at the time. To my knowledge the transcript of that trial has never been published.

I felt that the Judge was taken aback by their judgement on Evans too, his sentencing remarks seemed ad hoc and not particularly thought through.

Forgive me, but you may realise I'm fairly cynical already, I felt that the Jury's was a decision taken after a long trial on a Friday afternoon when they just wanted to go home. There was never any clear evidence against Evans.

And you know that had the Police not pursued this case, that the victim would probably still be living an unremarkable life, near her family in North-Wales and going out on the town in Rhyl enjoying herself.

With such lightweight evidence and NO allegation from the victim (describing her as the 'complainant' heaps more misery on her because she didn't even make a complaint)......the Police should not have brought the prosecution in cahoots with their 'political-wing' the CPS.

I think feminists, anti-rape groups, journalists and some prominent lawyers are primarily concerned about the effect of this case.

On the face of it (and there may be more to it), the witness's evidence was flimsy based on the reasons given by the crown's lawyer.

Nobody has been able to explain yet why the defence team's strategy couldn't be widely used in other cases. I am sure there are many people who think that is perfectly fine. However, the reasons for not using sexual history still stand - Promotion of 'rape myths' and preventing victims from coming forward.

Aye merrymouse,

"Without evidence, vorpal, that is subjective."....

I can't argue with that!

I felt that the initial conviction was very dodgy based on the evidence that I saw reported at the time.

Confirmation bias works both ways.

vorpal

That may indeed be the case. And yes, it's the girl who has suffered. So do the police want convictions because of, you know, personal stats and gainz? Or are they fed up with the lack of rape conviction ? Either way, what can we/they do to help women ?

and merrymouse, the controversial and distasteful delving into the victim's history was done after consideration at the previous appeal.

Of course. its not usually allowed because it looks like smearing the victim. In this case though it was the only way the defence could corroborate Evans's evidence.

Because it was the only way they allowed it in court.

The sheer lack of any other evidence apart from Evan's testimony led them to use this potentially damaging tactic.

Therein lies the nub..... there was precious little evidence to bring this case.

this case though it was the only way the defence could corroborate Evans's evidence.

Previous sexual history has been used to show consent where it was one person's word against another.

there was precious little evidence to bring this case

But enough evidence to get the case to court and convict him at the first trial without anybody being able to show that, without other evidence, a miscarriage of justice had taken place.

In this trial also, it seems that the law has been followed.

However, the message I am hearing most loudly on mumsnet is not 'Ched Evans will always be a rapist to me', but 'thank god I didn't report my rape'.

It's as though rather than 'thinking twice' about drunk sex, young footballers might honestly be taught that as long as the victim is drunk enough, the law can't do anything.

venus. I've commented on your thread and will do my reading tomorrow. Bloody well done for delving deeper.

Thanks Datun

there was evidence adduced to suggest that the complainant was so drunk that she was not capable of consent

That was the prosecution's case and they did indeed put forward evidence to support it. However, the victim herself has never claimed she was too drunk to consent and, judged against the standard set in R v Bree, the evidence falls short of proving that she was too drunk to consent. Having said that, it is, quite rightly, up to the jury to decide. R v Bree simply sets the standards for the judge's summing up. Juries are entitled to reach their own conclusions about the evidence regardless of whether or not those conclusions are consistent with previous cases. It is unclear whether the original jury decided she was too drunk to consent or if they simply decided she did not consent.

Whether or not they want convictions, but they still have to get the case past the CPR

That should be the CPS! The current DPP was also in post at the relevant time. She is of the view that men should be prosecuted for rape unless they can prove that there was consent and that the victim was not too drunk to consent. Indeed, she has issued instructions to the CPS to that effect. That is a clear attempt to shift the burden of proof onto the defence and will lead to more failed trials if acted upon. Whilst she had not issued those instructions at the time of this prosecution her views may well have informed the decisions taken by the CPS.

HillaryFTW

I pretty much agree with your post. I'm on the fence about whether or not she was too drunk to consent. I agree with everything else you say.

Originally CM said he asked CE if he wanted to join in and CE said yes. In the appeal this changed to asking the victim and SHE said yes. Personally I think they shot them selves in the foot at the initial police interview and then changed their stance.

I'm afraid that is a myth. There is a similar myth to the effect that Evans said he asked McDonald if he could join in. In his statement to the police McDonald said Evans asked the victim if he (Evans) could join in and she said yes. Evans, on the other hand, says that it was McDonald who asked the victim if Evans could join in. Both agree that the victim then asked Evans to give her oral sex. There is a contradiction there - they don't agree which of them asked the victim. It may be that the jury in the original trial used this to conclude that in fact neither of them asked and therefore there was no consent. That, of course, is a very different grounds for conviction to the victim being too intoxicated to consent, which is what most people believe was the basis for the conviction. The prosecution only argued that the victim was too intoxicated. They did not, as far as I am aware, make the argument that inconsistencies in the statements meant that the victim had not consented.

I haven't read all the posts on this thread but I did notice someone asking how the victim's evidence took 3 hours when she could not remember anything. She will have given evidence about the events of the evening up to the point where she lost her memory. She will also have given evidence about the events of the following morning. She will also have faced cross examination as the defence tried to pick holes in her evidence and also tried to emphasise those parts of her evidence that were helpful to the defence. I suspect they found ways of getting her to say "I don't remember" as often as they could. I don't have any statistics on this but 3 hours doesn't sound like a particularly long time for a rape victim to be questioned.

I also noticed someone saying that she did deny the behaviour described by the new witnesses. I may have missed something but the only reports I can find have her denying that behaviour with Evans. Since she does not remember what happened it is hard to see how she can credibly assert how she did or did not behave. Even if she did give evidence about her encounters with the new witnesses, she has the same problem - she apparently accepts the encounters took place but cannot recall them so it is difficult for her to credibly assert how she behaved. However, if she did deny behaving with the new witnesses in the way they described I apologise.

Do you really not see why that should be a concern for feminists

I do indeed understand the concern and I share the concern expressed by mightymouse that one of the results of this case may be to make rape victims less willing to come forward. However, I think some of the concern is misplaced and is being fed by poor reporting in the press.

See here for an analysis by a junior barrister practising in criminal law. I agree with his/her analysis.

I can see many of the secret barrister's points, but I still haven't seen anybody put forward any argument to reassure victims that it is still worth reporting a rape. (assuming no cctv or witnesses to the actual rape).

At this point, assuming such an argument exists, it would be really helpful if somebody could make it.

Datun,

Agree with ALL you write there.

I think the North Wales Police are quite likely knuckleheaded enough to think that any conviction will do and by prosecuting for rape they are 'doing their bit'.
But they aren't feminist as a group and they don't properly know how to interact with feminism or the rape stats. without blundering like they did here.
Its vaguely like the way South Yorks police thought they were being 'politically correct' by not bothering breaking the Rotherham paedophile rings because they are scared of being labelled racist. Its stupid, its naive -
It all boils down to the composition of the force I suppose.

Your last question is of course the difficult bit.

The Police, through reform and enlightened recruitment, slowly may change:-
re-structured to appeal to people who don't at the moment tend to want to be Police officers.The intelligent, the knowledgeable, the kind, the weak (of body), the imaginative. Only then will they start behaving themselves and act like a civilised paramilitary body.

What can WE do? hardest of the lot.

Education is a decent start - but its a too easy answer.

One big thing that might help is to make the environment - the built, the work, the pay, the heirarchy etc. decent enough and enjoyable enough that people don't feel the need to roll out of work on a Friday night and get paralytic drunk just to anaesthetise the memory of them all for two days

• and if we were more honest and forward and kind and possibly even more permissive a society and more social and sociable we might end up with a society in which every sexual encounter with a new partner isn't have to be preceded by drinking to much liquor.

Because alcohol seems to be a pre-requisite for most of us..... me included.

?

Yes, this is what I would like too. And for the legal pundits to drop the arrogance and accusations towards women's groups of scaremongering and being more of a problem for women than rape myths and the flawed legal system.

This paternalistic, patronising "concern" for rape victims by many lawyers and men makes my teeth itch.

Phr, it was the Secret Barrister piece that annoyed me in the first place. It's deeply pompous and patronising.

"However, the victim herself has never claimed she was too drunk to consent "

I don't really understand this point. The victim and other witnesses and cctv described pretty extreme intoxication.

As she had memory loss, she hasn't claimed anything.

As I've posted earlier (maybe on a different thread), I would also question the true freedom and capacity of any teenager, even sober, to consent in the situation where a sexual partner she has hardly spoken to has invited a second complete stranger to her to the room they are in, naked, without telling her. Certainly if that was a situation I was in and the first man then asked me to give the second some money, I would feel very scared and in no position To say no, given the boundary trampling that had already happened.

We need people like Stephen Fry on the case ?

Seriously ? That well known fair minded protector of women's rights ?

I've heard it all now

prh the denials from the victim are there to find if you look for them. They have actually been in several newspaper reports but if you wish to present a particular point of view obviously you ignore them. The most detailed reports are probably here www.walesonline.co.uk/news/ched-evans-rape-trial-live-11979395 and on this or other days she denies having previously been so drunk that she forgot - one of he key points of the evidence from the man who said he had known Ched for many years.

On other days you'll find evidence that she was falling over in the takeaway and that she was glassy eyed and didnt respond to a direct question from a member of staff at the Premier Inn. Glassy eyed and unresponsive - sounds just like someone able to consent to sex to you?

She also had bruises on her arms - something else that tends not to have been reported.

I totally agree Hilary. IMO that situation smacks of implicit duress. She was naked, vulnerable, had been confused (which evidence shows) and having sex and 3 different men turn up uninvited. One barges in. The other 2 stand in front of the window laughing and filming.

For those who dont want to find it - this is what the evidence from the last person to see her before she entered the hotel room said

Giving evidence in court on Thursday he said: “My impression was that the woman was extremely drunk. She was unsteady on her feet.

“She kept on leaning on Mr McDonald to try and steady herself.

“Her eyes were all glazed over, like a vacant expression. She didn’t seem to realise I was there. She seemed to look straight through me.

“I did ask her if she was okay but she didn’t reply.

and another extract

Defence barrister Judith Khan QC suggested the woman “took the lead” when having consensual sex with two other men - one shortly before the alleged rape and the other shortly afterwards.

The woman said she did not agree.

It's worth remembering that the defence originally tried a different tack with regards to the issue of capacity to consent in the appeal in 2012.

Why, I wonder, when they could have had such a smoking gun as they later did, when their star witness Tristin Owens had already been interviewed at the time? Apparently the first time he was interviewed he didn't report that x said "fuck me harder" or anything similar. Strange, no? You would have thought he would have emphasised a detail like that in a statement describing his own sexual experience with her, surely?

At the appeal they sought to prove that x's lack of memory had no bearing on her capacity to consent. They brought in a scientific expert witness to give evidence on the fact that she couldn't remember and what that meant in terms of her capacity to consent.

The appeal court threw it out. It was felt that issue had been dealt with adequately by the jury trial and so this was not compelling "fresh evidence".

This paternalistic, patronising "concern" for rape victims by many lawyers and men makes my teeth itch.

^ this