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[personal profile] lovingboth
Argh.

I'd say that the rapist got away with it, but Ched Evans didn't serve a single day less in jail, his career will never fully recover, and he's spent an awful lot of his prospective father-in-law's money to get his acquittal.

The main difference in the two trials isn't the 'Yeah, I had sex with her at another time, she did this, and gosh is there a reward for this sort of thing?!?' evidence that various people have been making a fuss about.

How on earth the Court of Appeal thought such evidence was useful is beyond me, and I still haven't seen their reasoning.* Get me in the right mood and you can fuck me doggy style while I say 'fuck me harder', but that doesn't mean I consent to have sex with Evans.

It isn't even the way that his story changed between the two trials.

Instead, I'm sure it's the way that the first jury heard the evidence of the third person in the room, his mate, Clayton McDonald, who was also on trial for rape. With the victim unable to remember a thing,** that's particularly important.

At the point Evans arrived in the room, uninvited, unexpected and unwelcome, having lied to get the key, McDonald was having sex with the victim. She'd gone with him to the hotel, they'd talked en route, he'd attempted to find her handbag (she was so out of it, she'd forgotten that she'd left it at a kebab shop earlier), and were talking as they passed the hotel's night porter. McDonald says that she initiated the sex they had, and was clearly involved in it.

The jury was instructed that if they thought the victim may not have been too intoxicated to consent, they should acquit both men. With their verdict on Evans, clearly they thought beyond any reasonable doubt that she did lack capacity. (Given the evidence, I'm not surprised.)

However a reasonable belief in consent is a defence, even if it is mistaken. Since the Sexual Offences Act 2003 came into force, the belief has to be reasonable and a genuinely held belief in consent will no longer do if it is not.

A combination of the evidence from outside the room and no contradiction of his story about what happened in it meant that McDonald's belief in her consent may have been reasonable. As such, he was unanimously acquitted. (Again, given the evidence, I'm not surprised.)

This has always been an unusual case in that it's not a 'he said, she said' one where the complainant has one story about what happened and the defendant another. The pair of men ended up in court because of what they said when the police were investigating the - as she thought - stolen handbag, and found out from the hotel who else had been in the room.

And Evans has always said that he didn't ask whether he could have sex with her, but that McDonald asked her if he could. As far as Evans is concerned, McDonald's main role is in giving him the solid basis for a reasonable belief in her consent.***

The big problem with that is that McDonald has always said that he didn't ask, but Evans did.

Oops. Can you see the problem with the way that both men reckon that she was asked, but both have always said that they didn't do it?

I reckon that both of them know that she should have been asked - had she been, this would never have ended up in court - but both of them are telling the truth in saying that they didn't do so. Neither of them have anything to gain by lying about that part.

Both men think that they did nothing wrong and both would have received strong advice to give evidence at the first trial: without saying what was their basis for belief in her consent, they'd be sunk if the jury decided that she was too intoxicated, and both of them knew what condition she'd been in.

So McDonald gave evidence on his own behalf then and, obviously, was also questioned about what had happened after Evans entered the room and before he started having sex with her. This might not have been comfortable for him, but when you give evidence you don't get to choose what questions you're asked. Again, he said that he hadn't asked her.

Another aspect of Evans' claim of her consent was that she 'repeatedly' 'cried out' the phrase "fuck me harder" during the sex.

The problem with that is that although McDonald quickly left the room, that still leaves three people in a position to hear that sex was happening in the room: Evans' brother and a friend outside who'd been trying to film what had happened plus the night porter outside the door. The pair of voyeurs did not give evidence,**** but clearly if they were in a position to exonerate their brother / friend, they would obviously have been called by the defence.

The night porter had been alerted by McDonald as he was leaving the room that the woman needed looking out for ('because she was sick' is the phrase used by the judgement the first time this went to the Court of Appeal) and listened at the door. He could hear that sex was happening, but could not hear that phrase.

So, the first jury dismissed the basis of Evans' claim for belief in her consent. The person who Evans said had asked her if she wanted to have sex with him had said, on oath, that he hadn't, and no-one who was in position to hear them had said they had heard those cries.

Given this, I'm not surprised that they unanimously convicted him. He has never thought what he did was rape, but the jury, the judge, the single Court of Appeal judge and a full panel of three including the top judge in England agree with me that it was.

Because McDonald was acquitted the first time, he was not on trial the second time Evans was. If Evans was telling the truth about what happened, the defence would have called him as a witness. I'm guessing that he refused to cooperate with the CPS because he wasn't called as a prosecution witness either.

But the second jury knew how important his evidence is: Evans still says that McDonald asked her if he could have sex with her. So they asked for his statement. As he wasn't a witness, the Rules and Practice Directions for criminal cases say that it's not evidence that the jury can consider and so the judge refused their request.

It was at this point that I knew he'd be found not guilty.

Left with Evans saying 'McDonald asked her' and no evidence to say that he did not, it would be very tough to get a jury to disagree. And they didn't.

So Evans has the 'not guilty' verdict that he wanted, but the consideration of the evidence that the second jury were denied still says he did it.

Rapist.

* It was embargoed until the conclusion of the retrial, and hasn't appeared on judiciary.gov.uk/court/court-of-appeal or bailii.org yet.

** Initially, Evans' case was that she was lying about this, but by the first appeal even his lawyers accepted that she doesn't, to the point of putting evidence to that effect themselves.

*** His secondary role was in finding someone he could fuck, of course. I've not seen anyone ask Evans why, if what he said to the police about being able to get a girl whenever he wanted because he was a (lower league) footballer is true, he couldn't find casual sex himself that night.

**** I'd love to see what they said to the police!
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Ian

March 2017

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