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Lawyers split over Ched Evans rape acquittal debate

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Charlotte Proudman even hung up phone in radio interview bust-up about the issue

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Footballer Ched Evans was controversially acquitted of rape earlier this month, and lawyers are still squabbling over whether this was the right decision.

Welsh sportsman Evans served two-and-a-half-years in prison for the rape of a 19-year-old woman in 2011. The Court of Appeal quashed his conviction in April this year, and Evans was eventually acquitted of rape at his retrial.

The acquittal has prompted polarised opinion about the law of rape, the way in which rape complainants and defendants are treated in the criminal justice system and how criminal trials are conducted. There is particular contention surrounding victims’ sexual history and whether this should be disclosed in court.

Among the loudest voices in this debate are the lawyers, like Vera Baird QC. The Police and Crime Commissioner for Northumbria has penned a strongly-worded article in The Guardian in which she argues:

By clearing the way for two men to tell the jury they’d had sex with the complainant, the Court of Appeal effectively converted [Evans’] earlier conviction into an acquittal. Some lawyers say this was a rare case and doubt that, as a precedent, it will affect many future cases. But other lawyers — and I am one of them — fear that rape trials could become inquisitions into the complainant’s sex life.

This comment has riled some lawyers.

Criminal barrister Douglas Lloyd, for one, described Baird’s opinion piece as “complete drivel” and “dangerous scaremongering”.

The article, he said, paints a misleading picture of the criminal justice system and its treatment of rape complainants. He also said her piece “stinks of jumping on a bandwagon”.

In response to Lloyd’s criticism, fellow criminal lawyer Nicholas Diable took the opportunity to slam Baird for her involvement in the “destruction of legal aid”.

Another barrister questioned whether Baird had read the full Evans transcript, while Simon Myerson QC suggested her views are not based on knowledge.

Though the jibes from the legal profession are coming thick and fast, it’s worth noting many spectators have shared Baird’s article on social media, perhaps in solidarity with her viewpoint.

And take Charlotte Proudman. The family law barrister and feminist commentator spoke via telephone on a radio show hosted by Julia Hartley-Brewer this weekend. The forthright broadcaster repeatedly interrupted Proudman — who notably made public a private, sexist message she received from a senior solicitor — when she attempted to voice her concern about Evans’ acquittal. Proudman eventually hung up the phone when Hartley-Brewer called the complainant “a slut”.

95 Comments

Anonymous

Get it right!

The interviewer called the two men sluts & the woman complainant sluts.

Hope that helps.

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Anonymous

Charlotte Proudman was dreadful in the interview!

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Gus

I didn’t know Charlotte Proudman had more insight into the case than the jury that tried it.

In future perhaps all jury verdicts should be referred to her for checking?

(42)(2)

Gus

Charlotte and her cat did not like your comment.

(4)(0)

Anonymous

Ched Evans = rubbish human being, even worse footballer

(15)(11)

Bumblebee

I make no comment as to whether Ched Evans is a good human being, but the allegation that he is (or at least was) a rubbish footballer is just factually incorrect.

He was a very, very promising footballer. He made his international debut aged just 19, and in the season before his rape conviction he scored 35 goals.

(24)(6)

Anonymous

Clearly never seen him play for Wales then.

He is gash..

(7)(8)

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

(5)(0)

Bumblebee

I am REALLY struggling to understand how this comment breached LC’s comments policy.

Your stated policy is that ‘Comments that are defamatory or gratuitously offensive will be removed.’

In what way was this comment defamatory or gratuitously offensive? It’s clearly not use of the word ‘gash’ itself, since otherwise you would have moderated Anonymous 9.53am’s comment. Furthermore, it is a matter of fact that it is indeed Ched Evans’ pursuit of – um, if all of a sudden LC doesn’t like the word ‘gash’ shall we instead say ‘intimacy’ – that got him into trouble.

Perhaps most importantly, aside from anything else, the comment was genuinely funny.

I can see an argument that this comment was offensive. But ‘gratuitously offensive’? Really? Jesus, LC, sometimes you need to grow up and stop acting like the weird love child of Charlotte Proudman and Erich Mielke.

Anonymous of 09:53

I am filled with mortal remorse. It’s just that I genuinely could not find a more fitting epithet to encapsulate the miniscule talent Ched Evans demonstrates when playing Association Football.

If it helps, I did agonise for some time (maybe as much as 20s) over my utilisation of said word. I just hope I can be forgiven for such wanton malfeasance by some of the (I now belatedly realise) morally superior people that co-exist on this superlative forum.. :’-(

Ciaran Goggins

Rumour is the Spireites will sell him for 5 million.

(1)(0)

Trumpenkrieg

Is his “conquest” of the night in question a good human being then?

(5)(5)

Ciaran Goggins

How many caps do you have for your country?

(3)(2)

Anonymous

As many as the number of caps Shed Evans will acquire in his dismal future career…

(1)(7)

Trumpenkrieg

I wonder how many “caps” the complainant in R v Evans had accrued in strikingly similar circumstances prior to meeting Messrs McDonald and Evans that evening, and has accrued since.

(5)(5)

Ciaran Goggins

Apparently, if you make a false rape allegation North Wales Police give you a free trip to Australia. I am going to do a bank robbery – I want a condo in Vancouver.

Anonymous

Sigh. She didn’t complain. She didn’t allege. Regardless of everything else at least get the basic facts right.

On a personal note, I’m undecided on how I feel about the law in this area or the use of other sexual encounters as evidence. On reading the judgment it does seem pertinent. On the other hand… I like sex. In fact, I like quite kinky sex. And I’ve had a fair amount of it including the occasional one night stand. I have also been raped. I suppose, given that I remember it in excruciating detail, there might be less call to submit other people’s experiences of me in bed as evidence, but who knows. The ‘he said, she said’ narratives of these cases are notoriously problematic.

But I would be horrified if my other sexual experiences were adduced as evidence that, because I have slept with one man/woman in a one night stand, I would necessarily do it with any man (or number of men) who tried it on in a given evening. Not because I’m remotely ashamed of my sex life, but because it’s so utterly irrelevant.

I also know that I never reported it because, despite remembering everything, I had been out drinking and dancing and there was no one who could back up what I said. I had no wish to be interrogated on how much I’d drunk, how sluttily I’d danced or if I’d led him on. That would have made an already hideous experience so much worse and how is any of it, or my past or subsequent sexual history remotely relevant to the question of ‘did you want his dick in you at that time?’

lee

yeah, as a (much) younger man i have been raped by at least 8 women after drinking far too much. i never reported it, i just stopped drinking.

Just Anonymous

There’s nothing wrong with debating what the law should be.

What I very much dislike is linking that debate to a recent acquittal. Following a not guilty verdict by a jury there should, in the absence of significant new evidence, be no further debate or discussion.

(12)(5)

Bumblebee

Why? You wouldn’t take that view after a conviction, surely?

Stephen Lawrence. O.J Simpson. Why on earth should we just accept acquittals without question or scrutiny?

(17)(9)

Just Anonymous

“Why on earth should we just accept acquittals without question or scrutiny?”

I didn’t say that. Rather, I acknowledged that if significant new evidence arises, the matter should be reopened. That is precisely what happened in Lawrence and I welcome it.

However, there is a fundamental difference between that and debating whether or not the jury was correct on the evidence that it had. On that matter, the jury has – and should have – the final word.

(7)(4)

Bumblebee

In Lawrence, the new evidence arose over a decade after the event. It follows from your argument that there should have been no debate or discussion during the intervening 10 years. If people had subscribed to that view instead of putting pressure on the police, it’s likely that the case would never have even been reviewed.

Also, what about OJ?

Juries can and do make mistakes. Furthermore, discussion of what the law should be would be sterile and ineffective unless it could be linked to real-life examples of how the law operates in practice.

(13)(4)

Just Anonymous

I didn’t mention OJ because I was politely trying not to embarrass you. He was found not guilty at trial and found liable in civil proceedings. Thus, his case is irrelevant: no-one’s arguing a jury acquittal is definitive in such proceedings.

There is also patently no analogy between this case and Lawrence. In the latter, as I say, there was new evidence. Similarly, if new evidence emerges that casts legitimate doubt on Evans’ acquittal, let it be heard. Otherwise, the jury decision stands.

What you can’t do is invoke Lawrence when what you’re really trying to do is debate whether the jury were correct on the actual evidence. That matter is decided.

Anonymous

Which was kind of their point about OJ – the jury decided on the evidence and got it wrong.

The Professor

See the House of Lords judgment in R v Z (previous acquittals) [2000] 2 AC 483

Proud human

Why is Proudman getting air time at all?

(12)(2)

Anonymous

Because she is a rampant self publicist.

(16)(1)

Ciaran Goggins

Rampant is subconscious phallocentric oppression of wimmin. I will have you on the carpet.

(4)(2)

Ciaran Goggins

It is called “Jean Hatchet disease” (VonnyWattsitis) and is a virulent form of radical feminism.

(3)(4)

Adam Deen

Fuck off, Ciaran.

(4)(1)

Anonymous

Aye, what he said…

(1)(0)

only1jpk

“Fuck me harder” is a commonplace and self-serving male notion of what their sexual partner really wants, big boy! It’s hardly a Red Indian Headress in its rarity, is it? So what was so astonishingly revelatory about it, that merits its inclusion?

(13)(7)

Bumblebee

I don’t really get or agreee with the ‘male notion’ comment, but I’m glad you made this point.

I’ve often said/heard this phrase during intercourse. But because intercourse is such a private act, I wasn’t really sure just how normal/commonplace it is to hear this phrase.

What I found more interesting was the comment from one of the witnesses concerning the complainant’s memory (or alleged lack thereof). Having slept with the complainant when she was drunk but, by his account, certainly not too drunk to lack the capacity to consent, the witness recounted the complainant waking up the next morning and claiming to have no memory of the night before.

(9)(1)

Anonymous

well if she said it to ched evans it seems unlikely that he would be raping her at the time

(5)(2)

Bumblebee

I think you’ve missed the point of the comment. In Ched Evans’ retrial, the defence was allowed to adduce evidence of the complainant’s sexual history by virtue of s41(3) Youth Justice and Criminal Evidence Act 1999. Essentially this was because the court decided that if two different men who’d slept with the complainant recounted her as saying ‘Fuck me harder’, that similarity could not reasonably be explained as a coincidence.

The first commenter was saying, ‘well, yes, actually. It quite reasonably could be explained as a coincidence’.

(13)(1)

Anonymous

It’s not admissible as evidence of consent, so that logic can’t be used. It is evidence that points to whether Evans’ account was invented, or described real events.

Also, while shouting “fuck me harder” may well be a common thing to happen during sex, that is not the whole of evidence.

(4)(2)

Anonymous

Yes, it is admissible as evidence of consent! If you read the section, it makes it very clear that this exception relates to an issue of consent. It was admitted as evidence that he reasonably thought she consented.

(5)(2)

Anonymous

How can previous sexual behaviour go to reasonable belief in consent on the night in question?

That she said ‘fuck me harder’ on that occasion is relevant to reasonable belief. That she said it on previous occasions is not.

Anonymous

The value in it is this: Evans claims that’s what happened. Complainant neither confirms nor denies that she said it. The fact that it features in previous sexual behaviour is relevant to whether Evans’ account might be true, or whether you can be sure that he made it up.

Anonymous

This…

Him, her or it.

Not evidence of consent? Really? Is someone likely to say that during sex if they aren’t consenting?

Surely the jury are best placed to decide if he’s a rapist, after hearing all the evidence, of which this is part, non?

This post has been moderated because it breached Legal Cheek’s comments policy.

(1)(1)

Anonymous

Scared of Evans’ libel lawyers? The latter part of that comment was ‘fair comment’ which is a defence, y’know!

Anonymous

Shouting “fuck me harder” is factually indicative of consent.

Not sure about anyone else, but don’t think putting in a request for harder intercourse would occur to you whilst getting “raped”. Unless you subscribe to the motto “when in rome”…

(6)(2)

Anonymous

The preferred term is “Native American”.

(2)(0)

lee

it gave us all something to waste time commenting on. On a different subject entirely, the last time a woman told me to go fxxxing harder i was mopping the bathroom floor 🙁

(0)(0)

Trumpenkrieg

The flawed premise of this article is that Vera Baird and Charlotte Proudman are addressing the issue as lawyers. They’re not. They’re addressing it as fundamentalist preachers of an ideology called radical feminism.

(30)(11)

Bumblebee

This is a fair comment.

(6)(4)

Bernie

I sincerely hope that once that orange asshat whom you so adore loses his failed bid for the White House, dickweeds like you will finally piss off to the ash heap of history.

November can’t come soon enough.

(4)(3)

Trumpenkrieg

You were sincerely hoping the same with Brexit and look how that turned out.

(4)(0)

lee

you’ve just seen the blight 🙂

(0)(0)

Anonymous

“who notably made public a private, sexist message she received from a senior solicitor ”

Sorry, I missed the part when everyone agreed that the message was definitely sexist…

(12)(13)

Ciaran Goggins

Sigh. You know less about the case than I so take my hand as we wander through wonderland. Anonymity must be returned to rape trial defendants, making a false allegation must be a serious offence (12 yrs custodial minimum) as it is elsewhere.

(5)(7)

Anonymous

Although it’s worth remembering that in this case – unusally – the complainant hadn’t made any allegation at all, and only said that she was unable to say what had happened.

(7)(1)

Ciaran Goggins

I tread warily here, like the Chief of Clan Drummond, she said her handbag was lost/stolen but also made social meejah comments about Big Wins and Pink Minis.

(0)(3)

lee

social meejah lmao

(0)(0)

Anonymous

So you honestly think false allegations merit a far longer sentence than rape and in fact something more akin to the minimum tariffs set in some murder cases? Would this also apply to those who make false allegations of other crimes? And would you automatically imprison the complainant in any case where there has been an acquittal? The complainant in Evans had no recollection of the events. The case was that she was too drunk to consent. She never said that Evans forced her to have sex. What did she lie about?

(9)(1)

Anonymous

You seem to have just introduced a third option. There are now three classifications of sex:
1) Rape
2) Consensual sex
3) Indifference

(2)(4)

Anonymous

No, where is my third option? Rape includes instances where the complainant is too drunk to meaningfully consent. But in this case, the complainant’s evidence was confined to saying that she had no memory of what happened. You cannot therefore say that she lied (unless you are suggesting she did remember the encounter)

(2)(1)

Anonymous

But why does lack of memory = lack of consent?

People do often suffer memory loss from alcohol, but that does not give a blanket capability to retrospectively remove consent the next morning when you wake up after drunken intercourse.

The three options are the only possibilities following your statement “She never said that Evans forced her to have sex.”

Further, to extract a principle from your statement – if somone can’t remember consenting to sex, but at the same time they don’t believe they were forced to have sex, then it is fine to imprision someone for rape. That simply does not follow.

The burden of proof for some of these allegations of rape seems quite unfair. It’s not – you have been accused of rape. Its more – you had sex last weekend, prove that sex was consensual or you go to prison.

lee

how about, I behaved like a right slag last night so i’m going to pretend i can’t remember what happened?

The Professor

I think it fair to argue that making false allegations should merit a higher level of sentencing that it does at present. In the most serious cases a long custodial sentence would indeed be appropriate. Such cases are much more serious than cases in which D claims to have been driving to protect husband E’s licence, because the consequences for the falsely accused man may be catastrophic and a typical sentence of 18 months for that is not enough.

(1)(3)

Anonymous

I was going to comment, but then I remembered that I know nothing about the case and decided not to (not that this stopped Charlotte Proudman, of course…)

(6)(2)

Not Amused

I hate having to agree with Simon Myerson.

I hate it.

(4)(0)

Anonymous

Nobody cares, go back to your pretend office

(5)(0)

Anonymous

A guy invites a girl back to his hotel room. While they’re having intercourse another guy comes in and jumps in while two others film the event. They then run off in different directions. The perpetrators all claim ‘she consented’. No offence is committed??
I would suggest any right thinking person would consider something badly wrong with the law here. Paying £50k to witnesses is not acceptable. I would say this is definitely a rapists charter.

(12)(4)

Trumpenkrieg

The evidence was that she was asked if Evans could join in and said yes. Since only Mcdonald was in the room at the time, i presume it would have been him that did the asking. There is nothing in the law that says that consent cannot be communicated through a third party. You can’t have it both ways. You either give women sexual agency and allow them to entirely divorce the sexual act from the customs of traditional sexual relationships, or you limit that agency by adopting a standard of a third party with ‘lie back and think of England’ notions of consensual sex. The fact it was being filmed through the window is neither here nor there. Those people weren’t charged with anything. What happened on the face of the evidence as it has been slowly revealed over the course of two trials and several appeals hearings seems to be that three people of libertine temperament engaging in consensual but less than tasteful to ordinary middle class sensibilities sexual activity.

Perhaps those who are outraged need to examine their own biases and reconcile why it is that they spend half their living house spewing facile platitudes about geneder equality whilst being adamant in their belief that where a man and a woman consume a lot of alcohol and have sex, only the woman can ever be deemed incapable of consenting.

(10)(6)

lee

Charlotte, welcome to the debate. is Julie bindel with you?

(0)(0)

Anonymous

“By clearing the way for two men to tell the jury they’d had sex with the complainant, the Court of Appeal effectively converted [Evan’s] earlier conviction into an acquittal.”

Who is this Evan, and what was he convicted of?

(2)(0)

Chef Evans' Legal Team

I’m amazed that these comments have not been closed for legal reasons yet.

Keep them coming….

(3)(2)

Trumpenkrieg

Running counter to the facile, good fuzzy bellyfeeling #YesAllWomen #IBelieveHer narrative does not constitute a “legal reason”

(3)(1)

lee

cook off

(0)(0)

Kyle, Cartman and Kenny

Hey Chef.

(2)(0)

Anonymous

I would be interested for Trumpenkrieg and others thoughts on this:

How do the CPS turn a drunk woman having sex with two footballers into a double handed rape trial if the basis, as I understand it, is that she is too drunk to consent ?
(One got acquitted at the first trial, as you know)

The key point for me when reviewing a criminal case is the point of origin for the CPS.

Did the lady ring 999 and say ” I have just realised that I have had sex with two men while extremely drunk” ? Or did she say “I have just been raped by two men while extremely drunk” ?

I think there is a risk here that if you have had sex with two footballers who may have the means to pay you off on a nuisance basis, or pay out on a civil suit, the knowledge that the law contains a “too drunk to consent” element could be a dangerous thing, resulting in someone (like this lady, for argument’s sake) over bidding their feelings and the facts.

Assuming that it was not disputed that she had sex with but did not complain of rape by the two different ‘f me harder’ men , and assuming these were ordinary working class men who had little money – I can see that the testimony of these two men would count against her and should be adduced.

You adduce these things, but the relevance can be criticised in front of the jury, rather than being withheld from them, as I see it.

I know that Desiree Washington rang the Police about Mike Tyson. ( I read the appeal paperwork for that – clickable from a Wikipaedia footnote – and believed her). Did this lady ring the police, if so, when, and what did she say ?

Or do the Police/ CPS get triggered through a different channel than 999 in rape cases ?

I think there is a whiff that if the two f me harder men were known to the Police at the time, there may be a thread of thinking in the CPS that “we run certain cases for the media interest, actually, and we minimise evidence that could cause the Prosecutor to legitimately say it is not in the public interest to prosecute – the chance of conviction is far too low”

Does anyone with more experience than me ever get that whiff, or I am mistaken ?

(3)(3)

James

The lady in question in this case contacted the police to say that she had lost her handbag. This was investigated and that led police to the hotel room. Upon finding out who it was registered to they questioned the men involved and the issue of sexual intercourse came up.

The lady said that she had no memory of the night and that all she could remember was being in a kebab shop.

One of the key points in this case was that the lady never said she had been raped, she never made any allegation of that. It was a case the police and CPS took on as the lack of memory could mean lack of consent.

The whole section 41(3) issue came about due to previous experiences where the lady had blacked out, but where the alcohol consumed would not seem to cause this effect. It is a strange case, but the fact he was a footballer may have played a part in the CPS wanting to push forward. Just my 2 cents.

(12)(2)

Trumpenkrieg

I’m not sure police are that cynical to try and nail a footballer because it will make them look tough on rape. Or perhaps I’m naive.

I do find this idea of Schrodinger’s rape quite bizarre. The ‘too drunk to consent’ standard effectively means a rape has occurred despite the wishes and feelings of the woman before, during and after the event, and without her ever having even reported the act as rape.

(2)(1)

Anonymous

Only one real question remaining:

What is worse – being raped or being falsely imprisoned for rape?

(4)(3)

Lord Lyle of Counsel

Most excellent! My English language course has born results. Well done boys and girls. More practice on the empirical logic though. The Rhetoric has improved dramatically. I am well pleased

(0)(3)

Anonymous

Being raped while falsely imprisoned for rape?

(5)(0)

Anonymous

The purpose of the law is to protect the public from criminal acts. Consent is obviously the key issue here and the only issue preventing this being a criminal act. Had that consent been gained prior to entering the hotel room there would be no issue. The problem is that she chose to enter a bedroom with one person and during a point of intimacy and without a word, another person entered the room and joined in. This makes the presumption of consent very difficult to accept. To bring in two witnesses who’s testimony may have been tainted through financial inducement makes the whole process extremely suspect.
The fact that others were present filming compounds the situation and perhaps they should have been charged as accessories.
A woman in a similar hotel room situation, where others suddenly appear and join in can deduce that in law she has very little if any protection from rape. This is the unfortunate consequence of this decision.
It is not a hysterical reaction to realise that the law now needs to be reexamined to make it fit for purpose.

(15)(3)

Anonymous

Try getting the facts right.

(5)(6)

Comments are closed.