Off Topic Bill Nicholson Arms

[RobSpur]

The jury were not asked to give a verdict on what the text meant so no, their verdict does not rule out what you said it did.

As I've explained, it's not just the text in itelf, it's the actions it triggered, which I went through.

On the subject of whether or not they asked for consent, well that's a bit murky. Both McDonald and Evans were interviewed seperately by police and whilst they both agreed that it had been asked whether it was okay for Evans to join in, they each said it was the other one that said it. At least one of them either lied to police, or gave an incorrect account to police. I don't personally put a lot of faith in either's statement regarding the question for just that reason. And again, the jury would not have had to give a verdict on whether they asked so I'm confused as to why you see it as a fact.

I'll give you some actual facts about the girl's behaviour on that night though:

• She's on CCTV falling over in the kebab shop.
• She's on CCTV pissing in the street.
• On arrival at the hotel she realises she lost her bag and, according to McDonald, told him she thought she'd left it in the cab so McDonald chased it down(shown on CCTV). She had actually left her bag in the kebab shop about half an hour earlier(iirc, I can't remember the exact time difference).
• She's on CCTV bumping into McDonald as she loses her footing walking into the hotel with McDonald.

Evans wasn't present for any of this and McDonald only for the times I mentioned him. What it shows, in my opinion, is that she was clearly very drunk. I find it hard to believe that it wasn't apparent to either McDonald or Evans pretty quickly that she was very drunk.

So when we're talking about respect for consent, no, I do not believe asking a very drunk girl whether they can join in is an example of this.

I'm glad we both agree that the text meant something more to Evans and McDonald though. I think it means something between them because they have done similar before and/or because they planned it. That's something that makes me very uncomfortable.

Your considered post makes some interesting points, which have made me reflect on the case and change my view to an extent, which I intend to set out below.

Before I do so, I comment that ai think it's great that we can have this discussion in a reasoned, logical and open way. To me a big problem with society is that some issues can not be discussed at times in this manner, due to vitreol, social pressure and conditioned thinking, and in my view that is both wrong and unhelpful. The only way in which a society can be just, fair and sensible, is if matters can be discussed in an open, rational way free from fear, conditioning and prejudice.

 

[RobSpur]

The jury were not asked to give a verdict on what the text meant so no, their verdict does not rule out what you said it did.

As I've explained, it's not just the text in itelf, it's the actions it triggered, which I went through.

On the subject of whether or not they asked for consent, well that's a bit murky. Both McDonald and Evans were interviewed seperately by police and whilst they both agreed that it had been asked whether it was okay for Evans to join in, they each said it was the other one that said it. At least one of them either lied to police, or gave an incorrect account to police. I don't personally put a lot of faith in either's statement regarding the question for just that reason. And again, the jury would not have had to give a verdict on whether they asked so I'm confused as to why you see it as a fact.

I'll give you some actual facts about the girl's behaviour on that night though:

• She's on CCTV falling over in the kebab shop.
• She's on CCTV pissing in the street.
• On arrival at the hotel she realises she lost her bag and, according to McDonald, told him she thought she'd left it in the cab so McDonald chased it down(shown on CCTV). She had actually left her bag in the kebab shop about half an hour earlier(iirc, I can't remember the exact time difference).
• She's on CCTV bumping into McDonald as she loses her footing walking into the hotel with McDonald.

Evans wasn't present for any of this and McDonald only for the times I mentioned him. What it shows, in my opinion, is that she was clearly very drunk. I find it hard to believe that it wasn't apparent to either McDonald or Evans pretty quickly that she was very drunk.

So when we're talking about respect for consent, no, I do not believe asking a very drunk girl whether they can join in is an example of this.

I'm glad we both agree that the text meant something more to Evans and McDonald though. I think it means something between them because they have done similar before and/or because they planned it. That's something that makes me very uncomfortable.

ive given a brief response to this above.

in more detail though, I would say the following :

1. I agree with your comment, "I think it means something between them because they have done similar before and/or because they planned it. That's something that makes me very uncomfortable".

2. I agree with you, particularly on the basis of your contention that they disagreed about who said what, that the express verbal consent claim sounds suspicious. I would say though, that is macdonald was drunk, it's not impossible that he misremembered. bear in mind that the girl apparently forgot everything that happened. I would also say that if they did make this up, it's far from impossible that this does not mean that they raped her or consider that they raped her, rather it could quite easily be the case that they felt they had not raped her, but had no evidence so made some up. I would be reticient to draw firm conclusions about this based on the level of information I am aware of anyway.

3. your 4 bullet points appear to indicate that she was extremely drunk. I don't fully agree though that McDonald and evans (in particular) would have known this. I wouldn't agree that anyone who loses their footing and bumps into someone is too drunk to give consent. with specific reference to the comment about the bag : by coniincidence I was in a bar recently when a woman lost her handbag. I think she'd been drinking all afternoon. not only was she so drunk that she left her handbag on the floor in the bar, but when she explained the story of how she recovered the bag, she got it completely wrong. that said, to talk to her, you would struggle to pick up that she was drunk. I don't know how long macdonald spent with her, but it does seem unlikely based on what you've said, that he was unaware that the woman was very drunk. I don't think the same can be said for evans at all though.

4. I would suggest that we can rule out that the men did not plan to rape a woman, because they did not rape a woman. whilst the text might indicate something sinister or immoral, I don't agree that it clearly does. if macdonald sent the text when he was with the girl, then that is the type of text that you would send. it's brevity doesn't indicate to me that he was trying to hide something, just that he was with a girl and wanted to send something very quickly.

to me there are 4 issues here :

1. the question of drunken consent in general
2. the behaviour of both men and of their friends who watched/filmed
3. the decision of the cps to prosecute and the harm done to the 2 individuals involved as a result
4. the involvement of the public mob to pursue a terror campaign against the parrticipants

i'll have to continue this separately because my laptops buggered.

 

[RobSpur]

Bloody annoying that. I got a broken screen repaired yesterday on an old laptop. Forgot that the laptop was onackered anyway from when i spilled a mug of hot tea on it

 

[RobSpur]

Anyway, all this has got me thinking about the crime of rape in general, and its relationship with this case. It's a common saying that "rape is rape is rape", but i disagree. To me there are 3 factors that are relevant :

- the intent of the perpetrator
- the harm to the victim
- the level of abscent consent

I would actually set out the following instances of either rape or alleged rape :

1. Abduction of stranger, with rape. No consent whatseoever. Causes absolute terror in victim. Steal's victim's body and freedom. Likely to cause long term pyschcological harm. Sickening, and on a level above almost all crimes aside from murder, phsycial torture etc.
2. Forced rape with stranger. Fairly indistinguishable from 1.
3. Forced date rape. Woman and man known to each other and in voluntary company. Man forces himself on woman expressly contrary to her will. Causes extreme fear and anguish in victim. Steal's victims's body and freedom. Likely to cause extreme anguish in victim, and some form of long term psychological harm. Very severe crime, at least as bad as GBH with threats, and deserving of custodial sentence.
4. Deliberate rape of woman who the man knew could not give consent. Absence of terror in victim, but sex still stolen, and victim left (rightfully) feeling used and misused. Extremely unsavoury behaviour by the perpetrator, and rightfully a criminal offence.
5. Woman technically unable to give consent due to being intoxicated, but at the time wanted to have sex. Man knew she could not consent or that she would reget it, and took advantage. To me, this is extremely ungentlemanly and unsavoury behaviour, and borderline criminal depending on the facts.
6. Woman did genuinely not intend consent, but perpetrator unaware at the time, eg both extremely intoxicated. Woman feels later that she did not intend to give sex and feels used. Perpetrator carless but not malicious. To me, in most instances, this should nit be considered a criminal offence.
7. As 5, but man unaware. Man might be better to be more aware next time, but definitely not a criminal offence, and not a signficant moral issue.
8. Woman consents, but later regrets having sex (eg she remembers she had a boyfriend), and accuses man of rape. This should be a criminal offence that is treated seriously.
9. Woman consents, but later accuses man of rape in revenge after falling out or similar. This should be a criminal offence wi a custodial sentence.


The above is somehwat hypothetical and does not consider evidential issues.

To me, what's happened here is possibly an example of 5 (althouh considerariin also needs to be made imo of the woman's own conduct and responsibility to herself). A lot was made at the time of the conviction of why macdonald was found not guilty, and evans guilty. To me, morally they are both guilty to an extent, as were their friends who watched the encounter. We dont - or at least i dont - know what the relarionship was in the group and which of them if any were acting due to peer pressure. To me though, it seems likely that those watching, and probably those taking part, intended to humiliate the girl or at the least take advantage of her. And that is unacceptable.

From what ive seen of evans, i have to say i am impressed. He has the appearance of having become a respectable young man. I also have substantial respect for the bravery he has shown in getting through the ordeal of the viscious hatred shown to him by large sections of the public. I can easily imagine the situarion he was in of feeling like there was nowhere he could take his life, and nowhere he could turn, without having this instense hatred thrust upon him. To me, that hatred is a much worse offence than most of the instances listed above. I can only respect him coming through that with his sanity intact. I also note that he distances himself - rightly - from criticism of the woman involved. Whilst i dont blame the relatives of a man whi felt he had been punished wrongfully from trying to exonerate him in any way he could, the public shaming of the woman by others is disgraceful and unacceptable.

All of which to me makes it obvious that the prosecution of this case as a rape by the CPS was wholly wrong from a moral point of view, even if all of those involved might have merited some kind of criminal warning or prosecution for causing a sexual humiliation (albeit that the victim might be considered to take some responsibility herself for allowing herself to be humiliated in such a way). Much like the adam johnson case, almost all of the harm done to those involved was not done by the prosecuted incident, but by he prosecution of the incident. Indeed, i read this morning that the woman's father considers that his daughter was raped not by evans but by the lawyers in court. In my view the criminal justice system in the UK has a lot to learn from these two cases.

 

[PowerSpurs]

The Evans case highlights the point. How can the CPS decide that a drunken woman who cannot recall what happened and who seems to have willingly engaged in casual sex with strangers was a reliable witness? Or that there was the likelihood of a conviction on that evidence? Or that it was in the public interest to drag all the parties through the court process on such flimsy evidence? Bear in mind that a lack of resources is apparently good reason for some forces not even turning out for burglaries if you live in a house with an odd door number. When these cases come to court, they raise emotive issues for the jury. If they take a dislike to a complainant or defendant, you get decisions like those in the Evans case. A conviction based on a disapproval of Evans behaviour on the night; an acquittal at a rehearing based on a dislike of the complainant's sexual history. Either way, the weak evidence should never have resulted in either of them having to face such scrutiny.

I think you are missing the point of the case. The woman consistently claimed that she was too out of it to remember what happened and originally went to the police worrying that she might have been drugged. The police found out what happened and the inconsistencies in the stories of the two men must have given them an indication that a crime had occurred. The only issue is whether the men reasonably believed that they were having consensual sex. Its easy to see how McDonald might have believed that - he had been with her some time and while he knew that she was drunk his interactions with her might have indicated that she was not that drunk. Even if he was wrong about that he hasn't committed a crime - as Robspur says it is not great behaviour but well short of rape. Having heard the evidence the first jury didn't think Evans could have reasonably believed that - either they thought the men were lying that one of them had asked whether he could join in (which is not unreasonable since they didn't agree who had asked) or they thought that the men were lying about the woman saying yes, or they just felt it was reckless to rely on a muttered 'yeah' when he had entered the hotel room without knocking etc. I thought at the time that the evidence about the woman's behaviour during the sex was irrelevant. Being very drunk can cause people to lose inhibitions as well as being unable to give proper consent Evans didn't know how she would react when he started and if he didn't have consent then it was rape. The jury, who had these set of facts in front of them convicted him.
We can agree or disagree on whether the jury was right but if we are having a jury system and they thought it beyond reasonable doubt then we need to go with that. The part of your post which I have bolded is irrelevant because her previous sexual history is not normally allowed to be brought up and the only thing she was witnessing to was her lack of memory of the events which she was entirely consistent on.
My main concern with the case was what happened next. Evans and his friends appealed for 'new evidence' and offered £50k if that secured an acquittal. The new evidence that turned up was about the woman's sexual history which is not normally admissible in court except in exceptional circumstances. This exception was written in to allow for things like orgies and consensual group sex where later participants might reasonably consider consent had been given based on previous behaviour. The test of this being admissible is quite high - the acts must have been similar enough that they couldn't have taken place by coincidence. The Appeal Court seems to think that having sex while being drunk and saying '**** me harder' passes this test which seems ludicrous to me. But in any case I think it should have been irrelevant as Evans wasn't aware of it when he decided that she had consented. I'm not particularly worried that Evans has been acquitted but I think that it is very concerning that this evidence was admitted particularly in the circumstances where it was paid for. It will put off other victims of rape from reporting it in case they get treated in the same way.

 

[PowerSpurs]

Anyway, all this has got me thinking about the crime of rape in general, and its relationship with this case. It's a common saying that "rape is rape is rape", but i disagree. To me there are 3 factors that are relevant :

- the intent of the perpetrator
- the harm to the victim
- the level of abscent consent

I would actually set out the following instances of either rape or alleged rape :

1. Abduction of stranger, with rape. No consent whatseoever. Causes absolute terror in victim. Steal's victim's body and freedom. Likely to cause long term pyschcological harm. Sickening, and on a level above almost all crimes aside from murder, phsycial torture etc.
2. Forced rape with stranger. Fairly indistinguishable from 1.
3. Forced date rape. Woman and man known to each other and in voluntary company. Man forces himself on woman expressly contrary to her will. Causes extreme fear and anguish in victim. Steal's victims's body and freedom. Likely to cause extreme anguish in victim, and some form of long term psychological harm. Very severe crime, at least as bad as GBH with threats, and deserving of custodial sentence.
4. Deliberate rape of woman who the man knew could not give consent. Absence of terror in victim, but sex still stolen, and victim left (rightfully) feeling used and misused. Extremely unsavoury behaviour by the perpetrator, and rightfully a criminal offence.
5. Woman technically unable to give consent due to being intoxicated, but at the time wanted to have sex. Man knew she could not consent or that she would reget it, and took advantage. To me, this is extremely ungentlemanly and unsavoury behaviour, and borderline criminal depending on the facts.
6. Woman did genuinely not intend consent, but perpetrator unaware at the time, eg both extremely intoxicated. Woman feels later that she did not intend to give sex and feels used. Perpetrator carless but not malicious. To me, in most instances, this should nit be considered a criminal offence.
7. As 5, but man unaware. Man might be better to be more aware next time, but definitely not a criminal offence, and not a signficant moral issue.
8. Woman consents, but later regrets having sex (eg she remembers she had a boyfriend), and accuses man of rape. This should be a criminal offence that is treated seriously.
9. Woman consents, but later accuses man of rape in revenge after falling out or similar. This should be a criminal offence wi a custodial sentence.


The above is somehwat hypothetical and does not consider evidential issues.

To me, what's happened here is possibly an example of 5 (althouh considerariin also needs to be made imo of the woman's own conduct and responsibility to herself). A lot was made at the time of the conviction of why macdonald was found not guilty, and evans guilty. To me, morally they are both guilty to an extent, as were their friends who watched the encounter. We dont - or at least i dont - know what the relarionship was in the group and which of them if any were acting due to peer pressure. To me though, it seems likely that those watching, and probably those taking part, intended to humiliate the girl or at the least take advantage of her. And that is unacceptable.

From what ive seen of evans, i have to say i am impressed. He has the appearance of having become a respectable young man. I also have substantial respect for the bravery he has shown in getting through the ordeal of the viscious hatred shown to him by large sections of the public. I can easily imagine the situarion he was in of feeling like there was nowhere he could take his life, and nowhere he could turn, without having this instense hatred thrust upon him. To me, that hatred is a much worse offence than most of the instances listed above. I can only respect him coming through that with his sanity intact. I also note that he distances himself - rightly - from criticism of the woman involved. Whilst i dont blame the relatives of a man whi felt he had been punished wrongfully from trying to exonerate him in any way he could, the public shaming of the woman by others is disgraceful and unacceptable.

All of which to me makes it obvious that the prosecution of this case as a rape by the CPS was wholly wrong from a moral point of view, even if all of those involved might have merited some kind of criminal warning or prosecution for causing a sexual humiliation (albeit that the victim might be considered to take some responsibility herself for allowing herself to be humiliated in such a way). Much like the adam johnson case, almost all of the harm done to those involved was not done by the prosecuted incident, but by he prosecution of the incident. Indeed, i read this morning that the woman's father considers that his daughter was raped not by evans but by the lawyers in court. In my view the criminal justice system in the UK has a lot to learn from these two cases.

I pretty much agree with all that except the last paragraph. The logic of your argument is that women can't get drunk in case someone takes advantage. That really can't be right. The last sentence is spot on though: the problem is that a woman whose only evidence is that she can't remember what happened has her private life set out in open court. I thought we'd moved on from that.

 

[RobSpur]

I pretty much agree with all that except the last paragraph. The logic of your argument is that women can't get drunk in case someone takes advantage. That really can't be right. The last sentence is spot on though: the problem is that a woman whose only evidence is that she can't remember what happened has her private life set out in open court. I thought we'd moved on from that.

But in order for such a conclusion to be right, the following would have to be true :

1. Any woman who got (very) drunk would, in her drunk condition, allow two men to have sex with her while their friends watched.

2. Every woman would also consider herself to have been raped when she sobered up.

I disagree on both counts.

No matter how drunk you are - even if you are so drunk you cant remember - you maintain your sense of self, even if your inhibitions might go out of the window. I would suggest that if you regard something as degrading to yourself, you wont do it no matter how drunk you are. In fact, (although this is not the reason the evidence was intorduced in the evans retrial), this appears to me to be a valid argument for allowing sexual history to be considered; a woman who typically has 3somes and such like, is much more likely to have entered willingly into a 3some when drunk, than a woman who does not. Further I would suggest that if that is not the case, then you retain a degree of responsibility yourself, and so long as noone forces a woman to do somethhing, she has to be held responsible herself, at least to a degree, for what she does. Besides which, girls' friends generally dont let guys near them when theyre in a state anyway.

The contrary arguement appears to me that a woman can get drunk, but not be allowed to have a sexual encounter, because if she did the man would be made a rapist. That can not be right.

I would suggest that it's not me who's not alllowing women to get drunk. It's you whose not allowing drunk women to have sex.

 

[paultheplug]

The case reveals several inconsistencies in the justice system. I have long thought it wrong that women are not named in rape cases even if they are shown to have lied, but men are named at the outset. Neither should be named before the verdict Some have said that it was wrong for Evans' girlfriend to seek out further evidence by way of a reward. This is a fairly common practice carried out by individuals, the police and, worryingly, by the press. The damage caused to some innocent people in the historic sex abuse cases is disgraceful.
Perhaps a complete overhaul of the justice system is due, to get away from the current adversarial system where the aim is to secure a win for either side, to one where establishing the truth is paramount.

 

[PowerSpurs]

But in order for such a conclusion to be right, the following would have to be true :

1. Any woman who got (very) drunk would, in her drunk condition, allow two men to have sex with her while their friends watched.

2. Every woman would also consider herself to have been raped when she sobered up.

I disagree on both counts.

No matter how drunk you are - even if you are so drunk you cant remember - you maintain your sense of self, even if your inhibitions might go out of the window. I would suggest that if you regard something as degrading to yourself, you wont do it no matter how drunk you are. In fact, (although this is not the reason the evidence was intorduced in the evans retrial), this appears to me to be a valid argument for allowing sexual history to be considered; a woman who typically has 3somes and such like, is much more likely to have entered willingly into a 3some when drunk, than a woman who does not. Further I would suggest that if that is not the case, then you retain a degree of responsibility yourself, and so long as noone forces a woman to do somethhing, she has to be held responsible herself, at least to a degree, for what she does. Besides which, girls' friends generally dont let guys near them when theyre in a state anyway.

The contrary arguement appears to me that a woman can get drunk, but not be allowed to have a sexual encounter, because if she did the man would be made a rapist. That can not be right.

I would suggest that it's not me who's not alllowing women to get drunk. It's you whose not allowing drunk women to have sex.

I'm perfectly happy for drunk women to have sex provided that it is consensual. But the man has to reasonably believe that consent was given. That's not a very high bar to set. McDonald was never convicted of raping her. I doubt the case would have been brought if Evans hadn't joined in. I'm really not saying that all drunk sex is rape or even close.

 

[PowerSpurs]

The case reveals several inconsistencies in the justice system. I have long thought it wrong that women are not named in rape cases even if they are shown to have lied, but men are named at the outset. Neither should be named before the verdict Some have said that it was wrong for Evans' girlfriend to seek out further evidence by way of a reward. This is a fairly common practice carried out by individuals, the police and, worryingly, by the press. The damage caused to some innocent people in the historic sex abuse cases is disgraceful.
Perhaps a complete overhaul of the justice system is due, to get away from the current adversarial system where the aim is to secure a win for either side, to one where establishing the truth is paramount.

I actually agree with your last sentence but that of course is the system followed in most of mainland Europe so its never going to happen here! The bit I've bolded is not actually an inconsistency. Because the test is 'beyond reasonable doubt' most not guilty verdicts don't prove that a lie has occurred. It is always open for the witness to be tried for perjury in which case he or she will be named.

 

[RobSpur]

I'm perfectly happy for drunk women to have sex provided that it is consensual. But the man has to reasonably believe that consent was given. That's not a very high bar to set. McDonald was never convicted of raping her. I doubt the case would have been brought if Evans hadn't joined in. I'm really not saying that all drunk sex is rape or even close.

Well there must be SOMETHING we can argue about ?

 

[RobSpur]

I would dispute the contention that a not guilty verdict does not demonstrate innocence.

It is a fundamental premise of english criminal law, that a defendent is presumed innocent until proven guilty. In the absence of a guilty verdict, he therefor remains presumed innocent. Which is no less innocent than a man who has never been accused of a crime.

Not guilty, means precisely that. Not guilty.

 

[littleDinosaurLuke]

I think you are missing the point of the case. The woman consistently claimed that she was too out of it to remember what happened and originally went to the police worrying that she might have been drugged. The police found out what happened and the inconsistencies in the stories of the two men must have given them an indication that a crime had occurred. The only issue is whether the men reasonably believed that they were having consensual sex. Its easy to see how McDonald might have believed that - he had been with her some time and while he knew that she was drunk his interactions with her might have indicated that she was not that drunk. Even if he was wrong about that he hasn't committed a crime - as Robspur says it is not great behaviour but well short of rape. Having heard the evidence the first jury didn't think Evans could have reasonably believed that - either they thought the men were lying that one of them had asked whether he could join in (which is not unreasonable since they didn't agree who had asked) or they thought that the men were lying about the woman saying yes, or they just felt it was reckless to rely on a muttered 'yeah' when he had entered the hotel room without knocking etc. I thought at the time that the evidence about the woman's behaviour during the sex was irrelevant. Being very drunk can cause people to lose inhibitions as well as being unable to give proper consent Evans didn't know how she would react when he started and if he didn't have consent then it was rape. The jury, who had these set of facts in front of them convicted him.
We can agree or disagree on whether the jury was right but if we are having a jury system and they thought it beyond reasonable doubt then we need to go with that. The part of your post which I have bolded is irrelevant because her previous sexual history is not normally allowed to be brought up and the only thing she was witnessing to was her lack of memory of the events which she was entirely consistent on.
My main concern with the case was what happened next. Evans and his friends appealed for 'new evidence' and offered £50k if that secured an acquittal. The new evidence that turned up was about the woman's sexual history which is not normally admissible in court except in exceptional circumstances. This exception was written in to allow for things like orgies and consensual group sex where later participants might reasonably consider consent had been given based on previous behaviour. The test of this being admissible is quite high - the acts must have been similar enough that they couldn't have taken place by coincidence. The Appeal Court seems to think that having sex while being drunk and saying '**** me harder' passes this test which seems ludicrous to me. But in any case I think it should have been irrelevant as Evans wasn't aware of it when he decided that she had consented. I'm not particularly worried that Evans has been acquitted but I think that it is very concerning that this evidence was admitted particularly in the circumstances where it was paid for. It will put off other victims of rape from reporting it in case they get treated in the same way.

This is the very point I have a difficulty with.

The criminal standard for conviction for rape is for the jury to be sure the offence is committed. Criminal courts are not courts of inquiry. The prosecution should only proceed where there is a likelihood of conviction. A drunken complainant with little or no recollection would normally be fatal to a prosecution. This is where there is a problem. In their haste to protect a drunken complainant from their own lack of judgment, the prosecution are overlooking the evidential weaknesses in their own case.

In the Evans case, how could a jury be expected to answer any of the key questions the case raised with any certainty? In particular, the key questions about the complainant's state of mind?

How could the jury know the degree of drunkenness/sobriety of the complainant at the relevant time and whether she was or wasn't capable of consenting to a specific sexual act (and indeed did or didn't do so) when it was clear that she been been capable of consenting to some sexual acts at or about the same (and had done so - hence McDonald's acquittal)? This could never be an issue about which they were sure on the available evidence. My fear is that the best they can do is make a decision which reflects their own attitudes and values towards the situation. So Evans was initially convicted because his actions were morally reprehensible, then acquitted on appeal because the complainant's general behaviour and attitude to sex was morally reprehensible. I fear the issue of consent was fudged in the process - because it was impossible for them to address without guesswork. The temptation must surely have been view the issue from a moralistic standpoint. In the first trial, the impression created was that Evans was a sexual predator and therefore it was far easier to be persuaded that the complainant was taken advantage of and to convict him as a mark of disapproval. The reverse appears to be the case at the retrial. Neither decision seems very satisfactory to me, especially as an exercise in actually evaluating the evidence.

 

[PowerSpurs]

I would dispute the contention that a not guilty verdict does not demonstrate innocence.

It is a fundamental premise of english criminal law, that a defendent is presumed innocent until proven guilty. In the absence of a guilty verdict, he therefor remains presumed innocent. Which is no less innocent than a man who has never been accused of a crime.

Not guilty, means precisely that. Not guilty.

I think this is a semantic/logical point. Your last two constructions are fine: Not guilty means not guilty and you are innocent until proven guilty so your status as 'innocent' doesn't change as a consequence of a not guilty verdict. But that isn't the same thing as a not guilty verdict 'demonstrating innocence' because that isn't the process that has been followed. Ched Evans remains innocent because he hasn't been proven guilty but has no need (and no means) to demonstrate his innocence. In Scotland the jury has a third option - a 'Not proven' verdict. This again doesn't alter the status of the accused who has not been proven guilty so remains innocent. But it at least stops people claiming that all the prosecution witnesses must be lying simply because there remains reasonable doubt.

 

[PowerSpurs]

This is the very point I have a difficulty with.

The criminal standard for conviction for rape is for the jury to be sure the offence is committed. Criminal courts are not courts of inquiry. The prosecution should only proceed where there is a likelihood of conviction. A drunken complainant with little or no recollection would normally be fatal to a prosecution. This is where there is a problem. In their haste to protect a drunken complainant from their own lack of judgment, the prosecution are overlooking the evidential weaknesses in their own case.

In the Evans case, how could a jury be expected to answer any of the key questions the case raised with any certainty? In particular, the key questions about the complainant's state of mind?

How could the jury know the degree of drunkenness/sobriety of the complainant at the relevant time and whether she was or wasn't capable of consenting to a specific sexual act (and indeed did or didn't do so) when it was clear that she been been capable of consenting to some sexual acts at or about the same (and had done so - hence McDonald's acquittal)? This could never be an issue about which they were sure on the available evidence. My fear is that the best they can do is make a decision which reflects their own attitudes and values towards the situation. So Evans was initially convicted because his actions were morally reprehensible, then acquitted on appeal because the complainant's general behaviour and attitude to sex was morally reprehensible. I fear the issue of consent was fudged in the process - because it was impossible for them to address without guesswork. The temptation must surely have been view the issue from a moralistic standpoint. In the first trial, the impression created was that Evans was a sexual predator and therefore it was far easier to be persuaded that the complainant was taken advantage of and to convict him as a mark of disapproval of. The reverse appears to be the case at the retrial. Neither decision seems very satisfactory to me, especially as an exercise in actually evaluating the evidence.

I agree that the jury couldn't know the degree of drunkeness but that isn't actually required of them. It's a very high bar to show that someone acted without a reasonable belief of consent in such a case but the first jury thought so when their minds only had his actions to think of. The second jury had irrelevant evidence about the woman's past which couldn't possibly have affected Evans actions since he wasn't aware of it at the time. That is why I think its wrong that historical evidence was allowed - it distracts the jury from considering the only issue that they should be thinking about: namely whether the accused reasonably believed there was consent.

 

[PleaseNotPoll]

My main concern with the case was what happened next. Evans and his friends appealed for 'new evidence' and offered £50k if that secured an acquittal. The new evidence that turned up was about the woman's sexual history which is not normally admissible in court except in exceptional circumstances. This exception was written in to allow for things like orgies and consensual group sex where later participants might reasonably consider consent had been given based on previous behaviour. The test of this being admissible is quite high - the acts must have been similar enough that they couldn't have taken place by coincidence. The Appeal Court seems to think that having sex while being drunk and saying '**** me harder' passes this test which seems ludicrous to me. But in any case I think it should have been irrelevant as Evans wasn't aware of it when he decided that she had consented. I'm not particularly worried that Evans has been acquitted but I think that it is very concerning that this evidence was admitted particularly in the circumstances where it was paid for. It will put off other victims of rape from reporting it in case they get treated in the same way.

Wasn't the new evidence allowed because other men claimed that she'd done the exact same things with them?
One of them also claimed that she'd told him that she had no memory of what they'd done the night before.

I'd normally agree that the sexual history of the complainant isn't relevant for most cases, but I can see why it was thought to be in this one.
I'd like to hear whether the accounts given by these men were disputed, though.
It might help to explain their motivations.

 

[PowerSpurs]

Wasn't the new evidence allowed because other men claimed that she'd done the exact same things with them?
One of them also claimed that she'd told him that she had no memory of what they'd done the night before.

I'd normally agree that the sexual history of the complainant isn't relevant for most cases, but I can see why it was thought to be in this one.
I'd like to hear whether the accounts given by these men were disputed, though.
It might help to explain their motivations.

I don't know the details but I still can't see how the fact that she had before been so drunk that she forgot what happened is relevant to whether Evans thought he had her consent. If Evans had known that before the night in question that would be different.
I'm also not sure whether she had the chance to comment on their stories. She was a prosecution witness and I don't think she can be recalled after the defence has started.

 

[PleaseNotPoll]

I don't know the details but I still can't see how the fact that she had before been so drunk that she forgot what happened is relevant to whether Evans thought he had her consent. If Evans had known that before the night in question that would be different.
I'm also not sure whether she had the chance to comment on their stories. She was a prosecution witness and I don't think she can be recalled after the defence has started.

I think that the guy claimed that she wasn't particularly drunk, so he was surprised that she couldn't remember anything.
She basically said the same thing about the night in question, so I'm not sure it's an indicator of her drunkenness.
It varies wildly between individuals.

If the complainant was going out, having some drinks, sleeping with men and then not remembering it, then I can see the relevance.
Was she getting raped by loads of different blokes or just rather susceptible to memory loss from alcohol?
I'm not blaming her for any of this or judging her, as I don't think that she's done anything wrong at all.
Evans acted like a ****bag, but I'm not convinced that he did anything illegal.

 

[PowerSpurs]

I think that the guy claimed that she wasn't particularly drunk, so he was surprised that she couldn't remember anything.
She basically said the same thing about the night in question, so I'm not sure it's an indicator of her drunkenness.
It varies wildly between individuals.

If the complainant was going out, having some drinks, sleeping with men and then not remembering it, then I can see the relevance.
Was she getting raped by loads of different blokes or just rather susceptible to memory loss from alcohol?
I'm not blaming her for any of this or judging her, as I don't think that she's done anything wrong at all.
Evans acted like a ****bag, but I'm not convinced that he did anything illegal.

I can see why it sounds as if it ought to be relevant but even if she did that every night it is quite possible that she was raped by some men and not others. The only issue is whether they believed she consented and logically that can't depend on history they had no knowledge of.

 

[No Kane No Gain]

Your considered post makes some interesting points, which have made me reflect on the case and change my view to an extent, which I intend to set out below.

Before I do so, I comment that ai think it's great that we can have this discussion in a reasoned, logical and open way. To me a big problem with society is that some issues can not be discussed at times in this manner, due to vitreol, social pressure and conditioned thinking, and in my view that is both wrong and unhelpful. The only way in which a society can be just, fair and sensible, is if matters can be discussed in an open, rational way free from fear, conditioning and prejudice.

I agree. It is natural for emotive topics to become heated but I think we do pretty well on this forum by keeping it civil and sticking to the issues. If we're going to wile away hours by disagreeing with people on the internet we might as well do it in a constructive and enjoyable way, shouting matches are neither.