*Please note that since this article was originally posted the Court of Appeal has quashed the original conviction and has, in April 2016, ordered a retrial. Nonetheless, the observations in the article regarding the issues of drunken consent and the broad issues in the case remain valid and relevant*
Professional footballer Ched Evans has a second chance at appealing his 2012 conviction for rape, as the Criminal Cases Review Commission confirm that they have referred his case to the Court of Appeal. There is apparently fresh evidence not heard by the jury that could cast doubt on the conviction – what that evidence is has not yet been made public. He made a similar claim to the Court of Appeal during his first attempt at appeal, but that was rejected.
On a night out in Rhyl in 2011 Ched Evans and his mates went on a drinking crawl. By the early hours one of those mates bumped into a drunken female, and the two of them went back to a nearby hotel room and had what a jury found was or might have been consensual sex. The friend had texted Mr Evans, who decided, on his own account, to go to the hotel with two other friends. They stayed outside, whilst Mr Evans went into the hotel, lied to the night porter to get a key card, went into the hotel room, joined in and then took over the sex. The friends briefly tried to film what was going on from outside the window. Mr Evans and his friends all left, Mr Evans by the fire exit, and went to his home, leaving the girl in the hotel alone. The same jury found that Mr Evans’ had raped the female, and the Judge gave him 5 years.
The case attracted particular attention when Ched Evans was released and tried to resume his playing career, a prospect met with dismay by supporters of teams with whom he was connected. He remains outside top level sport.
The case is an interesting example of the tussle currently on going in the criminal justice system about how to deal with cases of drunken sex and what amounts to consent. What Ched Evans did, on his own account, was pretty awful, morally reprehensible, but it’s not for us or the law to pass moral judgement. The legal issue in play arises by balancing two, often competing principles: on one hand a complainant consents if, and only if, she has the freedom and capacity to make a choice, and she exercised that choice to agree to sexual intercourse. On the other hand, a drunken consent is still consent. The jury in this case was sure that the lady neither consented to having sex with Ched Evans nor did he reasonably believe that she was consenting, but he carried on nonetheless. It was about her capacity to choose. She has always said that she has no memory of events, so his guilt flows from the evidence of her intoxication, obvious as that must have been to Ched Evans. Either that or he was totally and unreasonably apathetic to the issue.
Ched Evans has complained bitterly about his conviction ever since, focussing on the drunken consent is still consent line. That a jury who actually heard the evidence unanimously convicted him (a jury that on the face of it was perfectly willing to give the benefit of any doubt given they acquitted his co-defendant in circumstances fairly close to his own) was enough for the court of appeal to reject his first appeal. Frankly, given his apparent enthusiasm for having sex with a girl he had never met, never spoken to, who was in a locked hotel room with another man which he had conned his way into, in persuading his mate to step aside for the 30 mins or so it took for him to satisfy himself before disappearing off home never to be seen again, one might imagine why a jury found that he was in no mood to be distracted by the inconvenience of free consent, as obviously drunken as it must at best have been. Some would be surprised that his then girlfriend, now fiancée, stands by her chap. Any man or woman who engages in sexual activity like that is taking a serious risk. In years gone by perhaps society would have so frowned on the promiscuous woman for allowing herself to be in that position that the idea of prosecuting let alone convicting a man for having his way would have been absurd. Well as Ched Evans found out, no longer is this so, and we are a better and safer society for it.
Yet this moral positioning risks disguising a confusion that goes to the heart of the issue of consent. We have all done things we regret. We have all done things that in the cold light of day were both unwise and maybe shameful. Whether it is drunken adolescents discovering cider for the first time, boorish footballers getting carried away with their status or married couples losing respect for each other, things happen that with hindsight seem a bad idea. But consent, and indeed reasonable belief in consent, happens in the moment, not in the moralising that might follow, nor indeed in the planning. Being drunk means losing inhibitions and impaired judgement, and a voluntarily intoxicated adult who goes on a night out, who stumbles on their own two feet into bed with someone else can hardly complain that it was the gin what did it. We don’t see nor do we expect to see two very drunken one night standers each being prosecuted for raping the other just because neither of them had the capacity to consent nor to reasonably have thought that the other was consenting.
This highlights that the current focus in our justice system is often directed by what is perceived by the police or the CPS as an imbalance of power, as the forced will of one on another, rather than on the legal question of consent itself. This is why Ched Evans was prosecuted and convicted. The case was all about he and his friends, on a drunken lads night out together willingly ending up in a hotel room with a lone, highly inebriated female who was willing to lie on her back and, for whatever reason, not loudly protest. In these terms, the balance of power was so overwhelmingly against her that to talk of her free choice seems rather pathetic. But we must be very careful of imposing our own moral judgements on others. What might be distasteful to one is a good night out to another. If a girl or a guy wants to go out, get drunk and have a night of casual sex then so be it, and beware the hungover whimpers of regret, whether the person can remember what happened or not.
Resolving rape allegations that arise in a boozy haze is a difficult and miserable business indeed, and the law should stay focussed on the reality of the choices made by both parties at the time of the incident. Those choices, if freely given, must be respected, however subsequently regrettable they may be. On the other hand, as Ched Evans has discovered, drunken consent does not mean that anything, anytime, by anyone, goes.
Update: 2 March 2016
It is reported that Ched Evans’ appeal is listed to be heard in the Court of Appeal on the 22 March, so we should get hear what “Fresh Evidence” now exists and whether it makes any difference.
Update: 21 April 2016 – The Court of Appeal has quashed the conviction and ordered a retrial. The Court of Appeal said it had heard fresh evidence not available to the original trial, but we have not been told about the nature of that fresh material because there are reporting restrictions in place to help make sure that the new trial is as fair as possible.