Understanding the Ched Evans case matters a lot – and most of us don’t

This week I was having lunch with a friend and we started talking about the Ched Evans case.

She said the acquittal of Evans at his retrial had brought back terrible memories of when she was raped by a friend a few years ago: “The first thing I thought when I found out was: this is exactly the reason I didn’t report my rape.” 

Why, I asked. She listed two reasons:

“Because it shows that if I’d reported people would have just said ‘You were too drunk to remember – you probably gave him consent. And because if it did get to trial they would cross examine me about the fact I kissed the guy earlier in the evening and my sexual history would be exposed to my entire family.”

It’s completely understandable that my friend and other survivors of sexual assault drew these conclusions. In fact, the conversation reinforced an impression I’ve had from my Facebook timeline all week: the way the Ched Evans case has been reported by the media has scared a lot of people about how the law prosecutes rape in England. 

After speaking to her, I contacted a criminal barrister who has helped me on stories before. Matthew Scott is a specialist rape prosecutor, meaning he is one of the barristers with the special training required to work on rape cases, and is an award winning legal blogger. 

None of what follows is intended to rebuke my friend (who kindly allowed me to use her story to start this piece) or any rape survivors – I have no authority to comment on their experiences or how they felt about reporting the crimes committed against them. In this country it is notoriously difficult to get a rape conviction – last year only 2,689 were recorded. 

This case has has been one of the big talking-point news stories of many of our lives. It caused big arguments between friends when it came to trial in 2014, and it’s done so again this week. It’s a grim saga with many takeaways, not least about the immoral depths men can sink to when they think they are shielded from normal judgement – in cheap hotel rooms and on the internet.

But before we leave it, there are some misunderstandings about the Ched Evans case that we shouldn’t take away. These five points seem like the most important. 

The case has not set a legal precedent that a woman’s sexual history can be used to undermine her character in court

Lawyers are not allowed to attack a woman’s character by dredging up past sexual exploits. Doing so is explicitly banned by Section 41 of the 1999 Youth Justice and Criminal Evidence Act. And there are only highly specific and very unusual circumstances in which that rule can be circumvented.

The particulars of the Ched Evans retrial were highly unusual – it’s a case that “turns on its own facts” as the lawyers say. The specific reason the complainant’s other sexual encounters were ruled admissible as evidence in the retrial was because two witnesses came forward describing consensual sexual encounters with her which bore very strong similarities with the account Evans gave in his first police interview. 

Specifically the witnesses said she had requested the doggy position and had used the phrase “fuck me harder” or “go harder.” 

As Scott explains: “Section 41 is a very complicated section, and the particular subsection used here is actually very rarely used. It relates to sexual activity that is so similar that it cannot be judged coincidence. I’ve never come across that section being used and there’s only one reported case on it that I am aware of. The rest of the section effectively bans asking women about her sexual history.” 

Having a memory blank-out after a night out doesn’t automatically lead to either a conviction or an acquittal

If a girl is so drunk that she is incapable of knowing what is happening to her, she is protected by law – an incredibly important point. In that state the law says nobody can have sex with you.

A 2007 ruling at the Court of Appeal found that “capacity to consent may evaporate well before a complainant becomes unconscious.” I.e, there is an area between being very drunk – when technically someone can consent – and being unconscious – when they definitely cannot – where a jury has to work out if a person was able to give valid consent, and each case is different in determining where the line is.

As Scott puts it, in such a state “You are not capable of giving valid consent.” He adds: “Being unaware of what is going on at the time is not the same as not having any recollection in the morning.”

Ched Evans was not acquitted because the court found that Ms X had given him consent

Compared to the incredibly complicated bits of the sexual assault law relating to transgender people, the issue of consent in the law is fairly clear.

There are three potential questions jurors are asked to consider. Firstly, was the complainant able to give valid consent? If not, the defendant is guilty. Secondly, did she/he give it? If not, there is a third question to consider: did the defendant nevertheless reasonably believe that she/he consented (known as “reasonable belief in consent”)? If a jury thinks the answer is “No” then it is rape.

The evidence about Ms X’s other sexual encounters was not used to show that she must therefore have been consenting in her encounter with Evans, as many have claimed. It was used to lend credence to his case that he had reasonable grounds for believing that she was. That is the argument the jury accepted unanimously at retrial.

It should be said,that there is a difference between the law’s definition of rape and how many people now define consent, morally speaking. 

The dreadful online hate campaign Ms X suffered was not the result of her accusing a man of rape

One of the unusual aspects of this case was that Ms X did not accuse Ched Evans of rape. When she woke up in the hotel room, not remembering anything about her night after she went to a Kebab shop, she spoke to her mum on the phone, and then contacted the police in the hope of retrieving the bag she had lost. It was the police and then the Crown Prosecution Service who made the decision to pursue the case.

The campaign of harassment, bullying and defamation waged against the complainant – in which she was named online and hounded so badly that she has had to assume four new identities – has presumably torn her life to shreds. It must be a terrifying prospect for anyone who is unlucky enough to wake up alone in a hotel room booked in the name of a public figure with a large fanbase. But what it really shows is that the worst people on the internet unleash their idiotic wrath on women – it is usually women – with little regard for how a rape case comes to trial.

The Ched Evans is not at all representative of rape cases in England – spreading that message would be disastrous

After big verdicts, especially ones that acquit apparently unpleasant men of crimes against women, the natural reflex is to say “This always happens.” There has been a lot of that sentiment this week, but as we have seen, it’s important to be clear that you could attend hundreds of rape trials and never see one where Section 41 is used in the way it was here.

As this excellent blog by a barrister puts it, “This decision does not herald open season on complainants in sex cases.” The blog concludes, “Victims should not be scared to come forward on the basis of what is being said, loudly and inaccurately, by those who should know better.”

Being clear about that does not diminish the sometimes brutal challenges involved in reporting a rape and following it through to a prosecution. “I wouldn’t want to give the impression that reporting a rape case is easy,” says Scott. “Sometimes they are quite unpleasant things. If it comes down to consent, you are going to be challenged on that. But it is inconceivable that there will be a wide ranging attack on your whole sexual history – that just isn’t going to happen.”