The Ched Evans Thread

[Estimator]

10 myths busted about the Ched Evans case
Posted on October 14, 2016 by thesecretbarrister
Footballer Ched Evans was today acquitted after a retrial of one count of rape. The jury at Cardiff Crown Court returned a unanimous verdict of not guilty, Mr Evans' solicitor read out a statement on his client's behalf to the gawping media on the court steps in the time-honoured fashion and, within seconds, social media duly exploded with more speculation, myths, distortions and unjustified fury than one might suppose 140 characters could contain.

Ched Evans was a star player at Sheffield United.

The facts, as reported, can be briefly summarised: Ched Evans was originally tried with a co-defendant, and fellow footballer, Clayton McDonald, in April 2012. On 29 May 2011, Evans and McDonald had sex with the complainant, X, in a hotel room. McDonald had met X on a night out, taken her back to the hotel room, and had alerted Evans that he had "got a girl". Evans duly arrived, made his way to the room and, seeing McDonald and X having intercourse, joined in. X woke up the following morning, professing to have no memory at what had taken place. Both men admitted that they had had sex with X, and were charged with rape, on the basis that X was too drunk to consent, and that neither man reasonably believed that she was consenting. Both men asserted that they reasonably believed that the complainant was an enthusiastic and consenting party. At the first trial, McDonald was acquitted. Evans was convicted and sentenced to 5 years' imprisonment, of which he served the standard half before being released on licence.

That much, most people know. The further details, very few have bothered to acquire before forming judgment, firing off angry electronic missives and, in the cases of certain activists who should know better, offering vacuous quotes to the media.

So, in an effort to extinguish at least some of the stupid, herewith 10 myths we can squash at the outset:

1. So Ched Evans has been proved innocent, right?

Wrong. You'd be forgiven for thinking this, given that it was in the prepared statement read out by his solicitor, but Ched Evans has not "demonstrated his innocence". That is not how our criminal justice system operates. It is not a means by which the truth of a situation or event is conclusively and fully determined. Rather the jury are asked one simply question – are you sure that the prosecution has proved its case beyond reasonable doubt (or, as juries are commonly instructed, so that you are sure)? "Not guilty" means just that. The jury were not sure that he was guilty. They may have decided that he was totally, utterly innocent, but we don't know. All we know is that they considered the evidence, and were less than sure of his guilt. As I tell juries in every closing speech – if you think the defendant probably did it, he's still not guilty.

2. Well at the very least, the verdict means that the complainant has lied, surely?

No. Absolutely not. A not guilty verdict in most cases is insufficient to safely infer that the jury have concluded that a complainant lied (as opposed to the jury not being sure one way or the other), but in this case the facts suggest the opposite. As the Court of Appeal made clear in its judgment allowing the appeal, X has never asserted that she was raped. She has always simply maintained that she had no memory of what happened. It was the prosecution case – the case theory of the Crown Prosecution Service – that she was raped. The defence case was based not on the "usual" he said/ she said dispute over consent, but rather he said/ she can't remember. There is absolutely no safe basis for suggesting she has lied, or, to quell the more hysterical calls, that she should be prosecuted on the basis of Evans' acquittal.

3. Regardless, she has trashed his reputation and must be named and shamed.

That is extremely silly. And illegal. As a complainant in a sex case, she has anonymity for life. If you publicly identify her – including on Twitter – you will be prosecuted. It has happened before to friends of Mr Evans. It will happen to you.

4. How come she gets anonymity when he doesn't?

Because that is the law. If you want to read my views on it, for what it's worth, they are here. You may not like the law, but you should obey it. There's some free advice.

5.This is a victory for rape apologists. She was blind drunk, he admitted not speaking to her before, during or after, and this shows that consent does not mean consent.

No it doesn't. It shows simply that the jury were not sure of both of the following limbs to the prosecution case, that need to be established to prove rape:

(i) That X was not consenting (because she was incapable through intoxication);

(ii) That Evans did not reasonably believe X was consenting.

Now based on the evidence, including the fresh evidence (see below), it might be that the jury thought X was consenting. And if they did, having heard all of the evidence, they are in a far better position to make that assessment than anyone not in the courtroom. Drunk consent, as juries are reminded by judges, is still consent. But it is equally plausible that they were sure that X could not consent, but were not sure, given her described behaviour, that Evans did not reasonably believe that she was not. Even if the jury thought that X was not capable of consenting, and that Evans probably didn't reasonably believe that she was, he would still be not guilty – not because of a flaw in the law, or inherent misogyny, but because of Question 1 above, the burden and standard of proof.

6. X was grilled on her sexual history, in contravention of the law. We're back in the dark ages.

This is the analysis offered to the Guardian by Women Against Rape, a charity which should really know better, and Sandra Laville, the Guardian's outraged (but not, it seems, legally qualified) crime reporter. Questions about a complainant's previous sexual history are not allowed in sex trials, unless a very strict set of criteria (set out in section 41 of the Youth Justice and Criminal Evidence Act 1999) are met. As the Court of Appeal explained (at [44]), these provisions are designed to counter the myths that "unchaste women are more likely to consent and less worthy of belief". Yet X was cross-examined by the defence barrister over other sexual incidents – so what happened?

Well, in short, the law was followed. This point hinges mainly on "fresh evidence" that was not available at the first trial. Leave to appeal against Evans' conviction was refused by the Court of Appeal in 2012, and Evans thereafter approached the Criminal Cases Review Commission with "fresh evidence" which had since emerged and which he claimed undermined the safety of his conviction. We now know that the principal nature of this fresh evidence was as follows:

A man, O, gave evidence that, two weeks after 29 May 2011, he had been out drinking with X, and had engaged in consensual sexual intercourse, during which she instructed him to penetrate her vaginally from behind, shouting, "f**k me harder".
A second man, S, gave evidence that, on 28 May 2011, X had engaged him in a night of drunken sexual activity, in which she adopted the same sexual position and used words, "Go harder".
Evans' case at trial was that X had acted in the same way on the 29 May 2011, encouraging him to penetrate her "doggy style" and using the words "f**k me harder". This, it was argued, demonstrated that she was consenting, and also supported the reasonableness of his belief that she was consenting.

One of the exceptions under section 41(3) allows for evidence of sexual history to be adduced, and questions asked of the complainant about it, where the evidence relates to the issue of consent, and is of sexual behaviour of the complainant which is "so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused...that the similarity cannot reasonably be described as a coincidence". In short, it is beyond coincidence, the defence argued in the Court of Appeal, that X would consensually engage in this specific type of sex act using these specific words on occasions around the time of 29 May, but that she was not consenting in the same circumstances on that date. This tends to show that, drunk though she was, she was sufficiently in control of her senses to give consent, and, furthermore, to give Evans the impression that she was consenting. This, the defence argued, is relevant to the jury's assessment of whether she was consenting, and whether Evans reasonably believed that she was.

The Court of Appeal, having considered other case law, agreed that in these unusual circumstances the fresh evidence ought to be admitted, and that X should be questioned on what the new witnesses had to say. Now it may be (I haven't had the time to properly apply my mind to it) that a forensic analysis of the Court of Appeal's reasoning will reveal a flaw, or an inappropriate leap, or even a misinterpretation of previous binding authority. It may be that the Court's application of the strict criteria for agreeing to admit fresh evidence was arguably not met. Such things are not unknown. The Court of Appeal sometimes fluffs up. But unless you've read the judgment, and have carried out the legal analysis and the research, you're not able to say, are you? So, I urge you, stop spreading speculation which is not only misleading and removed from fact, but likely to deter victims from coming forward.

UPDATE: A special mention goes to comments this evening from End Violence Against Women: "We are very concerned at the precedent which might have been set in this case for allowing sexual history of complainants to be admissible evidence." Allow me to help: The precedent that has been set is none. The Court of Appeal decision sets down no new application of law or principle, and section 41 continues to operate exactly as it did before, excluding the vast, vast majority of questions about previous sexual behaviour. But good job on needlessly terrifying the women you claim to support.

7. But didn't the prosecution suggest those "new witnesses" were paid to say what they said?
The prosecution did. They said that in the Court of Appeal, when they argued that the evidence shouldn't be admitted, and they put it to the witnesses at trial. The jury heard the evidence, heard the questions and the witnesses' answers, and made up their own minds.
8. So the acquittal shows that the CPS was wrong to bring the case at all, then. That's what you're saying.
No it isn't. There was a case for Evans to answer. The fact that there was an initial conviction, and that in both trials the judge did not withdraw the case from the jury (which judges are bound to do if they feel that there is insufficient evidence for a jury safely to convict) shows that there was a case to answer. Whether, given that Evans had already served his sentence (and therefore would not have served any more time if re-convicted) it was wise to put the complainant through a retrial is arguable, but that's a fight for another day.
9. Will the CPS appeal?
They can't. There is no prosecution right of appeal. That is, or should be, the end of it.
10. What does this whole affair say about our society?
Christ knows. Nothing good.

[imtommygunn]

On the sunject of not being identified on twitter etc was her name not revealed on twitter today?

I think the last line says it all... This case shows nothing good about society.

[Asal Mor]

That's an excellent piece, though I think he's wrong about the timeline of the new witness statements. It was my understanding from the Evans website that they had been available earlier, at least by the time they first went to the Court of Appeal.
Myth No. 6 is an especially important one to bust given the hysterical approach of women's groups to the verdict. Better to read facts from a qualified barrister who specialises in criminal law than the usual scaremongering from man-hating, permanently outraged old hags. The legislation is exactly as it was and no new precedent has been set. This part sums it up well.......

A special mention goes to comments this evening from End Violence Against Women: "We are very concerned at the precedent which might have been set in this case for allowing sexual history of complainants to be admissible evidence." Allow me to help: The precedent that has been set is none. The Court of Appeal decision sets down no new application of law or principle, and section 41 continues to operate exactly as it did before, excluding the vast, vast majority of questions about previous sexual behaviour. But good job on needlessly terrifying the women you claim to support.

[Main Street]

That's an excellent piece, though I think he's wrong about the timeline of the new witness statements. It was my understanding from the Evans website that they had been available earlier, at least by the time they first went to the Court of Appeal.
Myth No. 6 is an especially important one to bust given the hysterical approach of women's groups to the verdict. Better to read facts from a qualified barrister who specialises in criminal law than the usual scaremongering from man-hating, permanently outraged old hags. The legislation is exactly as it was and no new precedent has been set. This part sums it up well.......

A special mention goes to comments this evening from End Violence Against Women: "We are very concerned at the precedent which might have been set in this case for allowing sexual history of complainants to be admissible evidence." Allow me to help: The precedent that has been set is none. The Court of Appeal decision sets down no new application of law or principle, and section 41 continues to operate exactly as it did before, excluding the vast, vast majority of questions about previous sexual behaviour. But good job on needlessly terrifying the women you claim to support.

The fully qualified barrister is entitled to his legal opinion, but it is not gospel and it certainly does not cover all the legal angles.
However, 'despite the usual scaremongering from women-hating, permanently outraged old prxks', the women's group are entitled to and have every right to question what happened in that appeal, to question the quality of the new witness statements, the financial circumstances in which that new evidence was now coming to light and the altered quality of that new evidence to conform with phrases (eg. fck me hard) already entered into evidence in the first trial.

I would equate the quality of that new evidence allowed, with the infamous police verbals  that were once treated as gospel ("he told me he did it, but you dumb coppers will never get me").
And the evident disdain that expert barrister expresses against the women's group,  lessens the the objective value of his opinion.

[Main Street]

A large part of the weight of evidence in the general domain about the creepy, unethical, illegal  antics of the well funded defense team/Atkins support group/vile campaign against the complainant, cannot be just ignored because it was not allowed to be a part of the court's testimony.

The defense team had to show the court a sufficient degree of relevance and consistency if they were to be allowed to introduce evidence from  2 other sexual partners of the complainant. The consistency part was achieved to the court's satisfaction by alleged persistent coaching of those 2 witnesses re their statements,  who belatedly inserted new phrases they had not previously used to describe their sexual encounter with the complainant, phrases  of course which were already in evidence.

The evidence not heard in court related to clear persistent attempts to gift  £50,000 to a hotel reception witness to induce him to alter his testimony that the woman was out of it.
To the eternal credit of that receptionist, he refused to alter his evidence.

The judge is reported to have made a skin of teeth decision to allow evidence from these 2 sexual partners. The judge might well have erred a few fractions  in his/her judgement.

[Asal Mor]

And the evident disdain that expert barrister expresses against the women's group,  lessens the the objective value of his opinion.

I'd say his disdain was for her legal opinion, unqualified and completely wrong as it is.

[Asal Mor]

A large part of the weight of evidence in the general domain about the creepy, unethical, illegal  antics of the well funded defense team/Atkins support group/vile campaign against the complainant, cannot be just ignored because it was not allowed to be a part of the court's testimony.

The defense team had to show the court a sufficient degree of relevance and consistency if they were to be allowed to introduce evidence from  2 other sexual partners of the complainant. The consistency part was achieved to the court's satisfaction by alleged persistent coaching of those 2 witnesses re their statements,  who belatedly inserted new phrases they had not previously used to describe their sexual encounter with the complainant, phrases  of course which were already in evidence.

The evidence not heard in court related to clear persistent attempts to gift  £50,000 to a hotel reception witness to induce him to alter his testimony that the woman was out of it.
To the eternal credit of that receptionist, he refused to alter his evidence.

The judge is reported to have made a skin of teeth decision to allow evidence from these 2 sexual partners. The judge might well have erred a few fractions  in his/her judgement.

The judge ruled that the facebook messages were not an attempted bribe but the desperate action of a desperate woman to find some scrap of new evidence that could help her boyfriend. I think the jury should have been allowed to hear them, though. I'm not in favor of excluding evidence. That's what caused this case to turn into such a clusterf*ck in the first place. Let the jury hear all the available evidence(that could be reasonably interpreted as relevant) and decide for themselves on the truth/relevance of it. Everything seems to find it's way into the public arena through social media anyway these days. The prosecution were unable to undermine the credibility or character of the key witness, and even though they alleged bribery, it didn't make sense for someone with a clean record and already high standard of living, to risk everything and perjure himself in a trial with so much media and social media scrutiny. If he ever does accept any money from the Evans camp, he better make damn sure he never tells a soul and hides all trace of the money completely, or his life as he knows it will be over.

A lot of people have been up on their high horses for years condemning Evans as an animal and a rapist. I get that it's easier for them to cling to a couple of Facebook messages and a far-fetched allegation of bribery, which the jury obviously didn't believe, than admit that they were probably wrong and that it looks like Ched was telling the truth all along.

[grounded]

Paul Heaton
17 November at 17:02 ·
It is with great regret that I announce my resignation as patron of Sheffield United Community Foundation.
I would firstly like to salute the bravery of my fellow Blades and patrons in resigning their positions and in particular Charlie Webster, Jessica Ennis-Hill and Lindsay Graham, in standing up for victims of rape everywhere.
I firmly believe that Ched Evans has the right to rebuild his career in football but rebuilding a career should not involve walking straight out of prison and into the shirt of the club he so badly let down.
I believe he needs to move away and move on, and the club itself needs to lift its reputation out of the gutter.
As a way of showing a lead to others involved in this torrid affair, I will be donating my fee from this month's Sheffield City Hall gig to Sheffield Rape Crisis Centre.
Finally, I would like to thank the Foundation for its continued hard work in the Sheffield community and wish them the very best for the future.

Has there been any comment from Heaton or the people he mentioned above?

[Asal Mor]

What's happening with the girl online(being widely named, abused & threatened) now is appalling. I wonder if the idiots who are doing it even realise that she never accused Evans of anything.

[Corner Forward]

What's happening with the girl online(being widely named, abused & threatened) now is appalling. I wonder if the idiots who are doing it even realise that she never accused Evans of anything.

She accused him of rape

[Boycey]

What's happening with the girl online(being widely named, abused & threatened) now is appalling. I wonder if the idiots who are doing it even realise that she never accused Evans of anything.

She accused him of rape

Did she?

[Franko]

What's happening with the girl online(being widely named, abused & threatened) now is appalling. I wonder if the idiots who are doing it even realise that she never accused Evans of anything.

She accused him of rape

It's a joke the abuse she has been getting.  Not on at all.  If I have this right she didn't accuse him of rape, she said she couldn't remember what happened.  The police accused him of rape.  That said, if there's any truth in the deleted Facebook messages about pulling a footballer and making herself some money story, she ain't no saint.

[moysider]

What's happening with the girl online(being widely named, abused & threatened) now is appalling. I wonder if the idiots who are doing it even realise that she never accused Evans of anything.

My take on it is that she never claimed that she was raped. She suspected that her drink was spiked?
Whoever decided this should go to court should be hauled over but of course that wont happen.
Evan's now has a case for defamation of character, wrongful imprisonment and loss of earnings as a result. He'd be a fool not to pursue that.

[Asal Mor]

What's happening with the girl online(being widely named, abused & threatened) now is appalling. I wonder if the idiots who are doing it even realise that she never accused Evans of anything.

She accused him of rape

It's a joke the abuse she has been getting.  Not on at all.  If I have this right she didn't accuse him of rape, she said she couldn't remember what happened.  The police accused him of rape.  That said, if there's any truth in the deleted Facebook messages about pulling a footballer and making herself some money story, she ain't no saint.

The Facebook messages were vague "When I win big" accompanied by a photo of a new car or a paradise island afaik. She might have been just talking about winning the lottery or some other pipe dream and Evans' family were wrong to post the messages on the website. I've seen some journalists describe the website as "vile" and there's no denying the girl was hounded as a result of it(think she had to move house 5 or 6 times), but it's easy to be sanctimonious when you(or a member of your family) are not rotting in prison and branded a rapist because a girl can't remember consenting.

As moysider said it's the police/CPS who created this whole mess. It obviously needed investigating, but when the toxicology report showed she hadn't been spiked and there was no physical evidence of an assault, along with the CCTV footage and the witness statements(which were on the Evans website for years and I believe were available before the case first went to trial) the case should have been dropped. The whole mess has been multiplied and magnified by the online mob of heroes, morons and psychos. Every dickhead(including myself) has a voice now, and that's often a bad thing. The hysteria around sex crimes too has gone way too far imo, and the cornerstone of justice, "innocent until proven guilty" is being ignored.

The issues raised by women's groups about discouraging women to come forward because they feel they'll be put on trial are valid but the way they make those arguments sickens me. None of them that I saw mentioned or even considered that maybe Evans had been telling the truth and  that he'd been wrongly imprisoned. They all slammed the verdict and the notion that sexual history of the alleged victim can be part of the trial, even if it's valid evidence that could prove the innocence of an innocent man.

I read somewhere that Ched should be able to get a payout of somewhere in the region of a million which is probably a good bit less than he missed out on, but money wouldn't be a worry for them. Maybe he could offer the million to the girl as a goodwill gesture, for the damage his actions(shitty behavior on the night but not rape, and the website) have caused, as he's acknowledged several times that she should be left alone to get on with her life. She'd certainly deserve the money for all she's been through and she could make a new life somewhere beautiful. It'd be good PR for Evans too, and the best possible ending to a horrible but fascinating story.

[Syferus]

Horrible behaviour by Evans supporters. Victim getting it from all the usual dregs and even people who had the good sense to speak out against Evans like Jessica Ennis getting the same.

At least this whole episode might make a few of the people prone to predatory behaviour think twice. They all don't have a few million around to lawyer up like Evans and try to fight against common sense.