OK let’s deal with a number of points together.
First, can any of those who repeatedly state that Ched Evans was convicted on the basis of his own evidence, set out precisely what he said, that proved him guilty of rape?
Second, Was this actually rape?
I’ll try to set out why I don’t think it was. It will take some doing. Most of you won’t bother to read it properly, but nevertheless I’ll try, in the hope that SOME of you will!
Section 1 of the Sexual Offences Act 2003, states, in effect, that a man is guilty of rape, if he has penetrative sex (with his penis)with another person,
a)without that person’s consent
and
b)without reasonable belief that consent has been given.
OK that’s fair enough..........But what constitutes consent?
Section 74 of the act defines consent as;
“a person consents if he(or she) agrees by choice, and has the freedom and capacity to make that choice.”
That then raises two separate questions;
- Did she consent or didn’t she?
- Did she have the capacity to consent?
These questions are mutually exclusive i.e. if you can answer one question, then the other becomes irrelevant.
The first question did not feature in the prosecution’s case, because it simply could not be answered beyond reasonable doubt. It’s no good relying on the argument that Ched Evans asked Clayton McDonald if he could join in, rather than asking the complainant directly. The point of both their evidence, is that the question of Ched Evans joining in WAS asked in the presence of the complainant, that the complainant heard and understood the question, and responded by saying yes, or words to that effect.
It is therefore clear, that as far as McDonald and Evans are concerned, the complainant did consent to sex with Evans, after previously consenting to sex with McDonald.
Now you can go down the road of automatically assuming that they were lying through their back teeth, just because they were men, if you wish. But the prosecution barrister simply could not do that. He would have to PROVE beyond reasonable doubt, that the complainant definitely did not consent and he had no evidence with which to do that! The complainant had suffered no injuries and she repeatedly said she could not remember what happened – in other words, she had no idea if she had consented or not!
So, the prosecution’s entire case was based on trying to prove that the complainant lacked the capacity to consent, through being drunk.
But that is not as easy as it sounds.
On 26th March 2007, Sir Igor Judge, president of the Queens Bench Division, ruled on the appeal against a rape conviction by Benjamin Bree. The Bree case had some striking similarities to the McDonald/Evans case 5 years later and it set the legal precedent aginst which the McDonald/Evans case must be judged.
Overturning the conviction, Sir Igor said;
"If, through drink - or for any other reason - the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if the intercourse takes place, this would be rape.”
Note the bit concerning questions about the defendant’s state of mind. On that night, both Clayton McDonald and Ched Evans had also consumed alcohol. They had been out for much longer than the complainant and had probably consumed more alcohol than she had. Yet no allowance seems to have been made for this in the trial. It seems the complainant is allowed to lose her cognitive ability, through consuming alcohol, but the accused are supposed to maintain all their faculties despite being drunk themselves!
Sir Igor then said;
"However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape."
In other words, just saying she was “extremely drunk” is not enough, because you CAN be “extremely drunk” and STILL retain the capacity to consent to sex!
But then comes the problem. Sir Igor went on to say;
"We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious."
The problem is WHERE on the scale of being stone cold sober at one end, and becoming unconscious at the other, do you draw the line? At what point do you loose the capacity to consent and how do you measure the capacity of somebody to consent, in order to determine that they are unable to do so?
This is not like doing somebody for drink driving, with a prescribed limit and an accepted, scientific means, for measuring a suspect’s blood alcohol level, to determine if they are over the limit. The law lays down NO such means of measuring a complainant’s capacity to consent to sex, except in the case where the complainant can be shown to have been unconscious; in which case, I think we can accept that she would have lost the capacity to consent. I note that during his cross examination of Clayton McDonald, the prosecution barrister seemed desperate to pressure McDonald into admitting that she was "unconscious or nearly unconscious" -He failed - McDonald repeatedly denied it!
In fact Sir Igor acknowledged the difficulty, by saying that such considerations;
"underline the fact that it would be unrealistic to endeavour to create some kind of grid system which would enable the answer to these questions to be related to some prescribed level of alcohol consumption".
"Experience shows that different individuals have a greater or lesser capacity to cope with alcohol than others and indeed the ability of a single individual to do so may vary from day to day."
"The practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures."
"In this context, provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves."
Sir Igor then summed up the issue in relation to Section 74 by saying;
"All that was being said was that when someone who has had a lot to drink is in fact consenting to intercourse, then that is what she is doing, consenting. Equally, if after taking drink, she is not consenting, then by definition intercourse is taking place without her consent."
From this we get the phrase “drunken consent, is still consent”!
So, what evidence did the prosecution produce in court, to back up the assertion that the complainant had lost the capacity to consent, first with Clayton Mc Donald and then with Ched Evans?
There was the CCTV evidence, which showed her walking unsteadily on her feet and even fall over in the take away. OK so this may well have showed that she was drunk. Then there was the CCTV evidence from the hotel, which has already been discussed.
Then there were three witnesses – the owner of the take away, the taxi driver and the hotel porter. All of them described her as being extremely drunk, of being unsteady on her feet and of having slurred speech. But did any of them put her through any form of cognitive reasoning test?
Were any of them in any way qualified to assess her mental capacity to consent to sex?
Now of course SOME of the points which contradict the prosecution’s claim that the complainant lacked the capacity to consent, come from the Ched Evans website. Some of you, are determined to go down the route of automatically assuming that JUST because it is on THAT website, then it MUST be a pack of lies.
I go down the more objective route of asking OK - that is what he is claiming – so is it true? Where do these claims come from? And what effect do they have on the soundness of the verdict if they are true?
What isn't on the Ched Evans Website, is the fact that both the complainant and her friend, said in their evidence that when she left the ZU Bar, the complainant wasn't that drunk, just happy. This was said in court and reported in the press. We can infer from the evidence, that the complainant got herself from the Zu Bar to the take away. We then know that the complainant spent the best part of an hour in the take away and engaged in conversation with others present. Were any of these others produced as witnesses? What did they say about the conversation? She may well have had slurred speech, but did they think she was talking gibberish? Did she appear to understand what was said to her?
At some point she clearly purchased (or had purchased for her) a pizza from that take away. The Ched Evans' Website claims that she paid for this pizza with the correct change – is this true? And where does it come from? If it is true, then what does it say? It says that the complainant was capable of understanding the price of the pizza, she was able to differentiate between different items of currency and was able to perform basic mathematical functions!
The CCTV evidence from the street apparently shows her walking unsteadily, as she approached Clayton McDonald, whose back was apparently turned towards her at the time. This clearly demonstrates that it was her that approached Clayton McDonald and not the other way round.
In his evidence, he stated that when he became aware of her approach, there followed a brief conversation. He said Hi, she said where are you going? He said back to his hotel and she replied by saying she was coming with him. If McDonald was telling the truth, then she was clearly able to understand what was being said to her and was capable of responding coherently – even if her speech was slurred.
Then they both got into a taxi. According to McDonald. They both got into the back seat, but the taxi driver told her to get into the front seat, because she was eating. She complied with this instruction. Did the taxi driver confirm this in his evidence? If he did, then clearly, even though she was drunk – she was still capable of understanding his instruction and was able to comply with it! The CCTV from the hotel clearly shows that when they arrived at the hotel, she got out of the front passenger seat of the taxi!
During that taxi ride McDonald said there was a further conversation. He asked her name, He asked her if she’d had a good night and where her friends were. Did the taxi driver confirm this, if so how did she reply? Could he understand her reply to those questions. If he could, then we have further evidence that she was able to understand what was being said to her and was able to respond coherently.
Then we get to the hotel. As I've said before, even if she was unsteady on her feet, she was still able to walk unaided – the CCTV proves it. OK the hotel porter said she looked extremely drunk. But in the light of the Bree ruling - so what? She COULD be extremely drunk and STILL retain the capacity to consent to sex.
The real clincher for me though, comes from the porter’s evidence.
AFTER Ched Evan’s arrival at the hotel, the porter went into the corridor to check the room out. He made no attempt to enter the room and could only testify to what he heard through the closed door. He said he could hear “squealing and panting” such that he was in no doubt that people were having sex inside. He then said he heard the man ask the woman to perform a sex act which has generally been taken as a request for oral sex.
Now let me ask you ladies a question, I’m sorry if I appear too forward, but it needs to be asked in order to make you THINK about this!
DO you squeal during sex? If so, then WHY do you squeal? Would you squeal if you were unconscious, or nearly unconscious?
I put it to you that the complainant was at the time willingly engaging in sexual activity with Ched Evans and was enjoying it!
Some of you have tried to make something out of the fact that the porter did not hear the woman’s voice reply to the request for a blow job. You have tried to imply that this was because she was unconscious or at least unable to answer the question. But the porter could not see through the door!
Couldn't she have just nodded? Couldn't she have just got on with it? And as I asked before – if Ched Evans could see she was unconscious, what was the point in asking the question?
In my view therefore, notwithstanding the jury’s verdict, there is MORE than reasonable doubt, that although drunk, the complainant had NOT lost the capacity to consent and the prosecution failed to prove otherwise.
I think that on that night, four lads with a questionable attitude towards women went out on the piss. Late in the evening one of them was approached by a woman, who was also drunk. She was dis-inhibited, but not out of control and was not slow at coming forward. She invited herself to his hotel where they began to have sex. While they were doing so, his three mates arrived. Two of them thought it would be a laugh to film through the window, while the other went into the room. The question was asked if he could join in and because she was dis-inhibited, she agreed. Throughout, she retained the ability to consent, despite being drunk. But shortly afterwards, she fell into a deep sleep – she’d worked a late shift, she’d had a few drinks and it was, by that time, half past four in the morning or later – of course she fell asleep! Wouldn't you? Seven hours later, she woke up and could not remember what happened. This does not, in itself, mean that she was incapable of consenting to sex seven hours earlier. That evening she went to the police to report the possible theft of her handbag. The police then decided she had been raped and the CPS then proceeded with a prosecution on the flimsiest of evidence and got 1 out of two.
And one more thing – THIS IS NOT VICTIM BLAMING! What those four lads did that night was distasteful, but it was not a crime! What the complainant did was not uncommon and not unreasonable behaviour for a woman of her age – how many of you are going to tell me you never got drunk when you were 19 years old? And she was not responsible for being raped – because she was not raped!