This is a blog post about the convictions and subsequent release of the footballer Ched Evans.
A few things before we get started. He's been convicted and served his sentence. Or more accurately he's served his custodial sentence, he still has another 2 and a half years on probation.
Trials aren't about what actually happened, they're about evidence. That is to say, juries make their decision on the evidence they have in front of them, they can't travel in time and space to be there when the alleged offence happened. The other things trials are about are juries. Juries are the unknown, the decision-makers without any legal training or experience. And I think sometimes why convictions get ruled unsafe, it's because of this.
I'm not a legal expert and I haven't seen all of the evidence in the Ched Evans case. There are a few things. Let's start with what the law says
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
Most noticeably when I first read this, all rapists are men. Or biologically men if you want to include transgender people with a penis. Also as alluded to above, section 75:
(2) The circumstances are that—
(a) any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;
(e) because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f) any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
Curiously the Act goes into quite a lot of detail as to what consent isn't but doesn't mention in the slightest what consent is, so 'consent' maintains its normal definition.
Really the first curiosity about this case is the victim doesn't know whether she consented or not. From what I understand, she was very drunk, though this doesn't fall under section 75 (2) (f) above because the footballer isn't the one who gave her the alcohol. 75 (2) (d) seems also not to apply in that there's no evidence she was unconscious at the time. She doesn't remember and the last footage of her on CCTV shows her conscious.
So I suppose it's down to the CCTV footage. Drunken consent is consent, so she'd have to be so drunk as to not be able to understand what was going on. Given the last footage of her was in the hotel lobby not the hotel room, I'm surprised there's enough evidence to show she was incapable of consent. Again, it's not knowable whether she consented or not because she doesn't remember, so the only way to be sure she didn't consent is if she was incapable. And I'm surprised the jury feels like they can know that beyond a reasonable doubt based on CCTV before the incident happened.
Again, this is not condoning his actions, it's an analysis of the evidence as I see it and how the evidence fits with the statutes of this country.