Ched Evans – Did the Court get it Wrong?Similar Sexual Behaviour and Consent
The Ched Evans rape case has attracted widespread publicity recently. The star footballer, convicted of rape in 2012 who served 2 ½ years in prison was cleared on a retrial after the new jury were told that the young female he had sex with had a habit of drunkenly engaging in sexual relationships at that time, and that her behaviour with those other men sounded a lot like what Mr Evans had always told the police was the truth.
This controversial new evidence has been met with dismay and outrage in many quarters. A group of MP’s has called for an urgent change in the law. There has been much nonsense spouted, much misinformed opinion aired. Those clamouring MP’s might do well to read and understand the law before trying to change it. No new precedents have been set, the law has not been set back 30 years, the law has been followed. Due process has taken it course.
But the Ched Evans decision in the Court of Appeal was, with the greatest respect to all those involved, wrong.
Two men had come forward at different points in the investigation to claim they had also has sex with the lady in question, known as X, at about the same time as Ched Evans. The other sexual behaviour reported by these men, Mr Hughes and Mr Owen, was found by the Court of Appeal to be sufficiently similar to her alleged behaviour in the Ched Evans incident to be relevant and admissible.
On each occasion, if the evidence were true, she had been drinking, she is said to have instigated certain sexual activity, directed her sexual partner in positions, and used specific words of encouragement.
With Mr Owen and Mr Hughes the behaviour was nothing other than consensual. The behaviour described by Ched Evans was found to be so similar as to be beyond a coincidence.
The criticism in this analysis by the Court of Appeal is twofold. Firstly, whilst it is obviously right that if the jury rejected his factual account of what happened he would have been guilty, the exact facts of what happened in the bedroom were not a central issue in dispute. X remembered nothing. She did not claim to have been raped. The Prosecution could scrutinise but hardly gainsay the factual account given by the defence. Moreover, even if the essence of what the defendant said happened factually was true, he did not necessarily stand to be acquitted. Rather, the key issue related to X’s capacity to consent, given her intoxication and all the other circumstances. Secondly, when considering whether X’s other sexual behaviour was “so similar” to that with Ched Evans, the court seems to have fixated on the words and positions of the participants, whilst singularly failing to acknowledge the real circumstances. What amounts to ‘sexual behaviour’ should be seen in context. With Mr Hughes and Mr Owen, X had chosen a sexual partner before undressing. She was with only one partner. Neither Mr Owen nor Mr Hughes had burst in uninvited on a sexually prone Ms X with their mates filming at the window. To describe X’s ‘sexual behaviour’ as similar or even sensibly comparable in these instances was unreal. It is disappointing that the Court of Appeal did not even appear to address the relevance of that gaping dichotomy in circumstances, despite a careful recitation of the facts.
So the Court of Appeal decided it would be unfair to deny the defendant the chance to prove his specific account of the sexual behaviour of X with him by calling evidence she had behaved in a physically similar way with others, such that this could not be coincidence. That pure legal point is one an academic might appreciate and in which there is force. It was said to be at the heart of a fair trial.
But that decision had the unfair effect or the risk of an illogical conflation that consequently X must have been having consensual sex with the defendant. As the court said, how she behaved sexually went to the issue of capacity to consent and actual consent, and probably his reasonable belief or otherwise in her consent. Indeed, but previous physically similar sexual behaviour that was consensual in wholly different circumstances absolutely should not have been admitted given the risk that it would be treated as evidence that the incident with Ched Evans was consensual. It was simply unrealistic to expect a jury to steer clear of this credibility trap, trial judge directions or not. This, fundamentally, is why the Court was wrong to admit the evidence. The real issue for a fair trial was whether X had the capacity to consent to sex with Ched Evans, given that she was intoxicated, lying prone in bed in the midst of sexual activity with a male she had chosen to be with, but that Ched Evans was uninvited and unknown, with his mates filming at the window. Did she consent to that? Did she have the capacity to consent in those circumstances? Did he reasonably believe she was consenting, in those circumstances? Did she make a real choice, in those circumstances?
Whilst the retrial was a different court, with a different jury at a different time, one might observe that when a court heard a trial about those real issues, Ched Evans was convicted by a jury fair minded enough to acquit his co-defendant. On the other hand, when a jury heard that X liked to have brief sexual encounters with other men, he was acquitted in short order.
There has been a lot of poor quality and at times hysterical reporting on the Ched Evan’s case. The effect may be to deter victims from reporting crimes. Ill-informed politians calling for kneejerk change make this worse, not better. The Court of Appeal was right to highlight that evidence about the sexual behaviour of a complainant or victim will be rare, especially when it relates to sexual behaviour with third parties. This was a rare, but perhaps wrongly decided, case.
Partner and Head of Crime