Royal Courts of Justice, London
Ched Evans was today cleared of rape in a retrial that was granted after he won his appeal in Easter 2016. I sat through the two days of Ched Evans’ appeal case as a representative of a women’s organisation to ensure that we had notes that accurately reflected the events that unfolded – we didn’t feel we could rely on the press for this. I want to use the details of the appeal to highlight how dysfunctional and unfair our justice system is and also to provide the specifics of that appeal in order that members of the public have a clear idea of the circumstances under which it was granted.
Why was the appeal granted?
Ched Evans’ defence lawyers were granted the appeal under extremely questionable circumstances. His defence claimed that ‘fresh evidence’ had been uncovered that would’ve added to Evans’ defence at trial. This ‘fresh evidence’ consisted of two witnesses, who the defence claimed had had ‘similar’ sexual encounters with Evans’ victim. To those unfamiliar with the law, this may seem fair – if similar sexual encounters had occurred with the same victim that were not rape, what makes Ched Evans’ case different?
So what makes this ‘fresh evidence’ questionable?
Section 41
This is a section of the Youth and Criminal Evidence Act 1999 that is supposed to challenge the (sexist) notion that “unchaste” women are more likely to consent to sex and such women are less worthy of belief when reporting rape. In theory, it prevents defence lawyers from trawling through women’s sexual history to use it against them in court. The point of this part of the law is to highlight that having sex with someone in a certain way at one time does not provide evidence for the consent of any other separate sexual encounter i.e. the only thing that is relevant to a rape trial is that specific incident – a woman’s character, clothing, sexual tastes and preferences or previous sexual encounters should have nothing to do with it.
Evans’ defence argued for the restrictions of Section 41 to be lifted in this case, claiming that there was a thread of commonality in Evan’s victims’ sexual behaviour when she’d had too much to drink. Their appeal hung on the notion that sexual encounters with two different men had been “too similar to be coincidence”. It is for this reason that the two new witnesses were allowed to give evidence at the appeal.
This case has now set a precedent for the future – what is to stop any defence lawyer in a rape case using Evans’ appeal as a case study to argue that Section 41 should not be applied to their client? Are we to regress to a time when being considered a ‘slag’ would be enough to mean you couldn’t possibly be raped?
The ‘Fresh Evidence’ – connections to Evans and his family
When the two witnesses were then called forward to give this fresh evidence, I was somewhat taken aback to discover how closely connected both witnesses were to Ched Evans and/or his victim.
Witness 1 was contacted by one of Evans’ victim’s friend’s boyfriends to urge him to give a statement to the police about a sexual encounter he’d had with the victim. Witness 1 then called his cousin (who just so happened to be a good friend of Ched Evans) who then told him to get in contact with Evans’ new lawyer. In a nut shell, he was told by someone closely linked to Evans himself to give a statement. When pressed by the Prosecution, he admitted his cousin had filled him in on what had happened to Ched Evans but he claimed he didn’t know any of the details of what had happened on the night of the rape.
Similarly, Witness 2 went to Primary and Secondary School with Evans’ victim – they were in the same year group and their mums were best friends. This was the same school that Evans himself attended. Witness 2’s brother was in the same year group as one of Evans’ friends who had been outside the window of the hotel the night of the rape. Witness 2 called the police on the day of Evans’ original conviction – he knew that Evans’ had raped the girl in a Premier Inn from the papers but said he didn’t know much detail. The Prosecution pressed Witness 2 on whether the friends that were urging him to go to the police knew Ched Evans to which he replied “I’m not sure”. He said he was shown a post on Facebook by a friend that suggested Evans’ victim was after money (which was then revealed to be complete nonsense). He saw many posts about the case on Facebook but, like Witness 1, claimed there were no specific details about the rape.
The Defence argued there was not enough evidence to show that both witnesses were connected to Evans or that they knew the details of the night of the rape. This was despite the fact there had been years of articles in the press, a vicious campaign by members of Evans’ own family (that revealed the identity of his victim illegally) and many Facebook and Twitter posts discussing the case. I will never understand how the judges at this appeal allowed this new evidence, given the clear connections both witnesses had to Evans and the sheer volume of information that had appeared in the press or online since his conviction – how could any of the evidence be considered credible?
The ‘Fresh Evidence’ – Trawling Through Evans’ Victims’ Sexual History
Both witnesses claimed that they had had sex in the same positions that Evans had had sex with his victim. Witness 1 alleged that the girl had said “fuck me harder” – a carbon copy of the words Evans claims his victim said and the reason he thought her to be consenting. Witness 2 described the girl as telling him to “go harder” – a phrase sufficiently close to be similar, it was claimed.
The fact that this evidence was accepted in the appeal and is essentially what has ended up getting Evans off is an absolute disgrace. Any sexually active young woman is highly likely to have used one of those expressions – it is a porn cliché and something that would be considered extremely normal for young women to say during a sexual encounter. Considering that Evans’ victim remembers nothing of the night, we only have his statement to go by – is it possible he pulled porn clichés out of thin air to defend himself?
Equally, being proactive by choosing sexual positions in two other encounters has absolutely nothing to do with the night in question. The suggestion being that because a woman engaged in consensual, proactive sex at one point with a man, she must’ve engaged in consensual proactive sex with another – one bears no relation to the other.
The suggestion that Evans’ victim was regularly drunk and having sex again has absolutely nothing to do with the night in question. The witnesses’ evidence should never have been allowed to be considered: it is irrelevant.
The crux of all of this being, though, that the Defence’s case did not convince me that the lifting of Section 41 was at all warranted. The appeal should never have been accepted and the retrial should never even have occurred.
Money and power
Ched Evans spent two and half years in prison (not serving his full sentence). For the entirety of Evans’ sentence, his family and friends conducted a fierce campaign to prove Evans’ innocence. The name of his victim was made public, snatching her legal right to anonymity away from her – she was forced to change her identity several times. There were countless online posts. A lot of money was pumped into Ched Evans’ innocence campaign, part of which included a £50,000 reward for information. Ched Evans managed to fast-track himself through the appeals system and pay for an expensive QC to defend him. There is no doubt that he was granted this appeal because of his status and economic position – a poor man convicted of the same crime would never have been capable of getting as far. This is the same appeals system that leaves women convicted of perverting the course of justice for reporting rape on waiting lists a year long.
Evans had the money to buy his appeal and the status as a popular local footballer to get his family and friends on a mission to find men who had slept with his victim that were willing to give a statement. It is essential to repeat that this should never have been allowed. There should never be an instance where a woman’s sexual history can be used as evidence in a rape trial.
“Justice”
Given the details of the appeal, it is important to remember that Evans has just been acquitted for rape when the details of the night in question are as follows:
Evans turned up to a hotel in the middle of the night after a friend rang him and said: (something along the lines of) “I’ve got a girl”. He proceeded to lie to the hotel receptionist to gain access to the hotel room. He walked in, had sex with a drunk woman he had never met and then left the hotel through the fire exit.
Despite the jury aquitting Evans, it is essential that the public understand that a “not guilty” verdict does not mean “she lied”, something that has been thrown around social media all afternoon and which is loaded with misogyny.
In a world where we now know for certain that our sexual histories can be used against us in rape trials despite the protections that are supposedly in place, are women supposed to refrain from kinky sex? Orgasms? Directing our sexual partners into the positions we enjoy for fear of these being used against us in court? It is an absolute disgrace that this is possible in 2016. As far as I’m concerned, this trial has been a witch hunt instigated by Evans’ family, friends and acquaintances and facilitated by social media. I dread how Evans’ case will be applied to future rape trials and send love and solidarity to rape survivors globally who, statistically, will never get the “justice” that Ched Evans was able to buy.
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