Accused rapist Ched Evans to be released from prison

[Athos]

This is fucking out of order. Call him stupid, call him a cunt, even call him an apologist if you have to. But not this.

He is stupid, and a cunt, and an apologist.

But, also, I do suspect his motives. Why is he so desperate to defend what Evans did? Why does he dispute the verdict of a jury that has seen the evidence that he has not? What does he present his own 'unique' interpretation of the law to defend Evans?

 

[poului]

Why is there a conflation here with not giving a clear-cut sign either way and giving consent? If someone doesn't give a clear-cut sign and you still go ahead with it, then you've had sex with them without anything to give you reasonable grounds to believe they've given their consent. It's open and shut.

 

[toggle]

yes he was sleazy as fuck doing that, but the case hinged legally on her capacity to give consent at that point, not on whether he was a sleazy fuck. Although I'd have to suspect that the jury actually made it's decision on the basis of their opinion of him being a sleazy fuck as opposed to the specifics of her capacity to give consent at that point, which can't have been significantly different to her capacity to give consent a few minutes earlier.

lets spell this out for the hard of thinking

she went back to a hotel room with one man. ONE MAN.

a jury decided that it wasn't entirely unreasonable for him to believe she consented to sex with him. even though she didn't remember doing so. something i find exceedingly problematic. but in our society, it's not supprising that there are people who will believe going to a hotel room with a man is consenting to sex.

a jury also decided that a bloke who entered the hotel room later and found a drunk naked woman in the bed, had no reasonable grounds to believe she had consented. but decided to fuck her anyway.

How the fuck is someone supposed to determine that a woman isn't actually capable legally if giving her consent, how was he supposed to have a reasonable belief that this wasn't the case when presented with a woman who by all accounts actually did consent, and actually was relatively lucid, able to walk in heels, talk etc.

.

cutting out your rampant bullshit, the simple solution for you is not to go into a hotel room where there is a drunk naked woman and fuck her.

 

[free spirit]

You could try Malone, Howard, Dougal and H, as a starting point.


You are a prick.

you could try reading about them yourself.

Bree’s signicance lies in the fact that it is the first time the Court of Appeal has had to address the effect of voluntary heavy alcohol consumption as it applies to the law of rape’under the 2003 Act.
4 It has also led the government to abandon its proposals for the revision of the consent provisions under the Act.
Bree should also be viewed in light of an emerging academic consensus which suggests that the Act fails to provide sufficient guidance to jurors on the meaning of key aspects of the act usreus of rape.

Unfortunately, as there was effectively no direction to approve or disapprove, a model direction for the future in this type of case does not exist. Other than the court’s endorsement of section 74, Bree tells us very little about the form future jury directions might take.

The court was at pains to emphasise that both parties were free to choose how much to drink and free to have intercourse if they wished: indeed‘there is nothing abnormal, surprising, or even unusual about men and women having consensual intercourse when one, or other, or both have voluntarily consumed a great deal of alcohol.’

To illustrate the importanceof ‘capacity’ in the context of ‘consent’,and justify its concentration upon capacity, the court then turned to the pre-2003 case law,quoting the jury direction from the decision in
Malone 24. Arguably, of particular importance is the following passage from Malone which recognised that absence of physical resistance on the part of the complainant is not to be equated with consent:‘Submitting to an act of sexual intercourse, because through drink she was unable physically to resist, though she wished to, is notconsent.’

However,the matter is obfuscated by the court’s subsequent reference to Howard 27 in which it was suggested that the prosecution might have to prove physical resistance.

sorry about the formatting.

So the brie case I referred to referenced those cases, and there are clear differences between them and this situation, howard suggests physical resistance would be necessary, there was none in this case, Malone suggests that if the woman was unable to resist because of being intoxicated then this would not be equated to consent, which also wasn't the case in this situation (unless I've missed something).

This case suggests that none of that is needed, even if the woman has actually consented and is a willing participant in the sex, then due to being deemed to being drunk and not capable of making that rational decision, that consent isn't legally valid.

so that article specifically backs up my point that firstly this is a big grey area in the legislation, and secondly that this case seems to be breaking new ground in how it has defined the position of the ability of the woman to give consent due to voluntary intoxication.

At least it does it there aren't a lot of other cases between that one in 2008, and this one 4 years later.

 

[Zapp Brannigan]

Dunno why people are so keen to re-try the case anyway, with barely a sliver of legal background between us and only the published fraction of evidence and testimony that the jury heard, the jury that convicted Evans of rape.

The issues at hand are (a) why has Evans only had to serve half a sentence after showing no remorse, the clear implication being that rehabilitation can be achieved without admission and acceptance which is patently bollocks, (b) whether a convicted rapist can or should resume a career in football, and (c) whether Sheffield Utd re-employing Evans would be special case above and beyond (b).

If you want to go amateur Colombo and solve the case once and for all in the court of public opinion, be my guest but IMHO it's not particularly useful nor relevant.

 

[Athos]

you could try reading about them yourself.

sorry about the formatting.

So the brie case I referred to referenced those cases, and there are clear differences between them and this situation, howard suggests physical resistance would be necessary, there was none in this case, Malone suggests that if the woman was unable to resist because of being intoxicated then this would not be equated to consent, which also wasn't the case in this situation (unless I've missed something).

This case suggests that none of that is needed, even if the woman has actually consented and is a willing participant in the sex, then due to being deemed to being drunk and not capable of making that rational decision, that consent isn't legally valid.

so that article specifically backs up my point that firstly this is a big grey area in the legislation, and secondly that this case seems to be breaking new ground in how it has defined the position of the ability of the woman to give consent due to voluntary intoxication.

At least it does it there aren't a lot of other cases between that one in 2008, and this one 4 years later.

I don't think you've read those cases, or even the article to which you linked!

There is no grey area; the act specifically states that capacity is an element of consent, and the case law addresses the fact that capacity can be vitiated by voluntary intoxication. You, Evens and other like-minded individuals happen not to like that, but it remains the case. No matter how much you claim otherwise.

And this case sets no precedent; the principle upon which it turns was established in Bree, which was itself a development on the pre-existing case law.

By the way, I notice you didn't reply on the other point i.e. that the jury did not think he had a reasonable belief that she consented.

 

[free spirit]

You are failing to understand the case again.

am I really?

The jury decided, on the evidence, that she was unable to consent.

right, well then this would be my entire fucking point in a nutshell.

This is breaking new ground legally as far as I'm aware, it's certainly breaking new ground compared to anything up to 2008.

This is the case for McDonald as well as Evans. McDonald was able to use the defence of having a reasonable belief in consent, Evans was not.

yes, i get this as well.

My 2nd point though being how is it reasonable for someone to be expected to know that the woman who's just agreed to having sex with him is actually going to be judged as legally incapable of having made that decision, when there has been no previous case law that would state that this is the situation?

A reasonable belief being that if the woman involved is capable of actually agreeing to it, and both witnesses who can actually remember what happened say this is the case, and the porter who listened for a bit outside the door didn't say anything to contradict this, then as in all previous case law this would mean that she had consented.

You may disapprove of what went on, I know I do, but up until this case (I think), or definitely up until 2008, what happened in this case had never previously been definitively classified as rape in the UK.

 

[free spirit]

Why is there a conflation here with not giving a clear-cut sign either way and giving consent? If someone doesn't give a clear-cut sign and you still go ahead with it, then you've had sex with them without anything to give you reasonable grounds to believe they've given their consent. It's open and shut.

because in this case the woman is alleged by both witnesses who were able to give statements about it to have clearly given her consent and been a willing participant.

She hasn't contradicted this, just said she can't remember, and the court didn't find that this hadn't happened either, the court merely determined that actually she was too drunk to have had the legal capacity to give her consent to having sex with him.

so basically you're agreeing with my position with that statement.

 

[poului]

so basically you're agreeing with my position with that statement.

LOL.

 

[bmd]

am I really?

right, well then this would be my entire fucking point in a nutshell.

This is breaking new ground legally as far as I'm aware, it's certainly breaking new ground compared to anything up to 2008.


yes, i get this as well.

My 2nd point though being how is it reasonable for someone to be expected to know that the woman who's just agreed to having sex with him is actually going to be judged as legally incapable of having made that decision, when there has been no previous case law that would state that this is the situation?

A reasonable belief being that if the woman involved is capable of actually agreeing to it, and both witnesses who can actually remember what happened say this is the case, and the porter who listened for a bit outside the door didn't say anything to contradict this, then as in all previous case law this would mean that she had consented.

You may disapprove of what went on, I know I do, but up until this case (I think), or definitely up until 2008, what happened in this case had never previously been definitively classified as rape in the UK.

She was too drunk to consent to having sex with Evans. That was what this case pivoted on, what the judge directed the jury on. The jury decided she wasn't capable of agreeing to it, so it was a rape.

 

[poului]

because in this case the woman is alleged by both witnesses who were able to give statements about it to have clearly given her consent and been a willing participant.

She hasn't contradicted this, just said she can't remember, and the court didn't find that this hadn't happened either, the court merely determined that actually she was too drunk to have had the legal capacity to give her consent to having sex with him.

"the court merely determined."

 

[Athos]

... the court merely determined that actually she was too drunk to have had the legal capacity to give her consent to having sex with him.

That's a lie. In addition to the fact that she was unable to consent, the jury also found (beyond reasonable doubt) that Evans had no reasonable belief that she had consented to sex with him.

Having heard all of the evidence, the jury were convinced that he had sex with a woman whom he knew hadn't consented to sex with him.

He raped her, and he knew that's what he was doing.

Whether or not you think the law should criminalise such conduct is irrelevant. It does; that's why he was convicted.

Just stop.

 

[Cid]

am I really?

right, well then this would be my entire fucking point in a nutshell.

This is breaking new ground legally as far as I'm aware, it's certainly breaking new ground compared to anything up to 2008.


yes, i get this as well.

My 2nd point though being how is it reasonable for someone to be expected to know that the woman who's just agreed to having sex with him is actually going to be judged as legally incapable of having made that decision, when there has been no previous case law that would state that this is the situation?

A reasonable belief being that if the woman involved is capable of actually agreeing to it, and both witnesses who can actually remember what happened say this is the case, and the porter who listened for a bit outside the door didn't say anything to contradict this, then as in all previous case law this would mean that she had consented.

You may disapprove of what went on, I know I do, but up until this case (I think), or definitely up until 2008, what happened in this case had never previously been definitively classified as rape in the UK.

Basically you're confusing issues of law and issues of fact. Judges interpret and apply law, juries judge facts (more complicated than that obviously, but will do for this). Bree establishes a point of law; it gives guidance as to how judges should direct juries in similar cases. The judge in Evans followed that precedent, giving proper direction to the jury. The jury was presented with evidence (things relating to the actual facts of the circumstances) and came to a decision based on that. Juries do not set precedent... a similar case could have a different outcome depending on the facts.

Just to note: In Bree the appeal was allowed because the judge did not properly direct the jury, it was not allowed because the circumstances in Bree definitively do not amount to rape.

 

[free spirit]

I don't think you've read those cases, or even the article to which you linked!

so despite me quoting from different sections all the way through the article you contend that I've not read it. Brilliant deduction there sherlock.

There is no grey area; the act specifically states that capacity is an element of consent, and the caselaw addresses the fact that capacity can be vitiated by voluntary intoxication. You, Evens and other like-minded individuals happen not to like that, but it remains the case. No matter how much you claim otherwise.

so you're disagreeing with the authors of the article I linked to then?

Bree should also be viewed in light of an emerging academic consensus which suggests that the Act fails to provide sufficient guidance to jurors on the meaning of key aspects of the actus reus of rape

That being academic speak for it being a grey area, and this indicating that Brie addresses ths grey area for the first time since the 2003 act.

Bree’s significance lies in the fact that it is the first time the Court of Appeal has had‘to address the effect of voluntary heavy alcohol consumption as it applies to the law of rape’under the 2003 Act.

And this case sets no precedent; the principle upon which it turns was established in Bree, which was itself a development on the pre-existing caselaw.

Brie established the principles involved, but this case seems to have set a much lower bar for the level of intoxification that would legally remove the capacity to consent than in any previous cases that I can find - certainly than in any of the cases you referenced.

By the way, I notice you didn't reply on the other point i.e. that the jury did not think he had a reasonable belief that she consented.

I've already responded to it multiple times, and I notice you've still failed to come up with any cases to back up your point that this didn't set a precedent / wasn't the first / one of the first to interpret the rulings in Brie to this extent. The ones you did provide were old cases that didn't back up your assertions.

ps isn't your specialist field EU trade law? So you presumably hold no special legal knowledge in this field, or have I got you mixed up with someone else?

 

[Cid]

Brie established the principles involved, but this case seems to have set a much lower bar for the level of intoxification that would legally remove the capacity to consent than in any previous cases that I can find - certainly than in any of the cases you referenced.

Bree does not set a bar for the level of intoxication (there's no 'fi' in it btw), it deliberately does not do so. It leaves it as a matter of fact for a jury to decide. Equally Evans does not set a bar, it left it up to the jury to decide. We don't have all the evidence they had, we don't have the detailed arguments of either the defence or the prosecution, we don't have the witnesses, we can't cross-examine anyone.

 

[free spirit]

That's a lie. In addition to the fact that she was unable to consent, the jury also found (beyond reasonable doubt) that Evans had no reasonable belief that she had consented to sex with him.

did they now, and on what basis are you making that statement?

My understanding is that the jury made the decision on the basis that he didn't have reasonable belief that she had the capacity to consent, not that he didn't believe that she had consented.

If this isn't the case, then his attempted appeal was on very odd grounds.

Having heard all of the evidence, the jury were convinced that he had sex with a woman whom he knew hadn't consented to sex with him.

no. The jury were convinced that he should have known that she was too drunk to legally be capable of giving her consent.

Which is a very different thing to knowing that someone hasn't actually consented.

He raped her, and he knew that's what he was doing.

Whether or not you think the law should criminalise such conduct is irrelevant. It does; that's why he was convicted.

Just stop.

it's not irrelevant where the case is the first, or one of the first to have ever interpreted the rape laws in this way, and where this interpretation potentially criminalises the regular drunken sexual activities of a huge number of people.

This is a bit less the case than it could have been had the other guy also been found guilty, which would directly have criminalised the activities of a good proportion of those who regularly go out on the piss with the hope of pulling - if he had, then I have no doubt at all that everyone on this thread currently arguing against me would still have maintained their position that rape is rape and that he'd been found guilty by a jury and there should be no discussion of it etc etc.

 

[Athos]

so despite me quoting from different sections all the way through the article you contend that I've not read it. Brilliant deduction there sherlock.

You're right. Better to have said that you don't understand it.

so you're disagreeing with the authors of the article I linked to then?

No, I'm disagreeing with what you think they're saying.

That being academic speak for it being a grey area, and this indicating that Brie addresses ths grey area for the first time since the 2003 act.

No, it's not.

Brie established the principles involved, but this case seems to have set a much lower bar for the level of intoxification that would legally remove the capacity to consent than in any previous cases that I can find - certainly than in any of the cases you referenced.

No, it doesn't. Intoxication that deprives a person of their capacity to consent is, and always has been, the bar.

I've already responded to it multiple times, and I notice you've still failed to come up with any cases to back up your point that this didn't set a precedent / wasn't the first / one of the first to interpret the rulings in Brie to this extent. The ones you did provide were old cases that didn't back up your assertions.

It doesn't. Bree was about the directions a judge should give a jury on the issue of intoxication, capcity and consent. Nothing in the Evans case is at odds with Bree. It's a complete red-herring anyway. Whether or not it's the first or 1,000th such case since Bree makes no difference to what the law says.

ps isn't your specialist field EU trade law? So you presumably hold no special legal knowledge in this field, or have I got you mixed up with someone else?

No, you have me confused with someone else.


Overall, I don't really get what point you're trying to make. Are you saying that, under the law as it stands Evans shouldn't have been found guilty, or that the law is 'wrong'?

 

[poului]

Basically you're confusing issues of law and issues of fact. Judges interpret and apply law, juries judge facts (more complicated than that obviously, but will do for this). Bree establishes a point of law; it gives guidance as to how judges should direct juries in similar cases. The judge in Evans followed that precedent, giving proper direction to the jury. The jury was presented with evidence (things relating to the actual facts of the circumstances) and came to a decision based on that. Juries do not set precedent... a similar case could have a different outcome depending on the facts.

Just to note: In Bree the appeal was allowed because the judge did not properly direct the jury, it was not allowed because the circumstances in Bree definitively do not amount to rape.

BTW what are these witness statements from the case that free spirit insists are to be deemed reliable in spite of the judge obviously concluding otherwise? Are they the same two that filmed it? There's at least one other witness statement in the case corroborating that she was too drunk to consent according the that Crimeline summary you linked earlier.

 

[free spirit]

Bree does not set a bar for the level of intoxication (there's no 'fi' in it btw), it deliberately does not do so. It leaves it as a matter of fact for a jury to decide. Equally Evans does not set a bar, it left it up to the jury to decide.

and the jury decided, and the appeals court refused leave to appeal, thereby setting the legal precedent that hadn't previously been set as low as this level afaik.

Next time there's a similar case the prosecution and judge will reference this case, the police and CPS will use this case as their guide to what's an acceptable level of drunkeness etc etc etc

tis a mighty slippery slope they've started down in this case, well started down with Brie really, but gone further down with this case.

 

[Athos]

did they now, and on what basis are you making that statement?

My understanding is that the jury made the decision on the basis that he didn't have reasonable belief that she had the capacity to consent, not that he didn't believe that she had consented.

If this isn't the case, then his attempted appeal was on very odd grounds.

As I've already pointed out (with reference to the words of s.1) your understanding is wrong.

no. The jury were convinced that he should have known that she was too drunk to legally be capable of giving her consent.

Which is a very different thing to knowing that someone hasn't actually consented.

No. Wrong again. To convict they'd have to be convinced that he did not have a reasonable belief that she had consented.

it's not irrelevant where the case is the first, or one of the first to have ever interpreted the rape laws in this way, and where this interpretation potentially criminalises the regular drunken sexual activities of a huge number of people.

It doesn't.

 

[free spirit]

BTW what are these witness statements from the case that free spirit insists are to be deemed reliable in spite of the judge obviously concluding otherwise? Are they the same two that filmed it? There's at least one other witness statement in the case corroborating that she was too drunk to consent according the that Crimeline summary you linked earlier.

The jury found that the girl was too drunk to have legally consented, therefore whether she gave consent or not was a moot point. You're assuming that the actual statements were refuted, which isn't the case afaik.

 

[bmd]

and the jury decided, and the appeals court refused leave to appeal, thereby setting the legal precedent that hadn't previously been set as low as this level afaik.

Next time there's a similar case the prosecution and judge will reference this case, the police and CPS will use this case as their guide to what's an acceptable level of drunkeness etc etc etc

tis a mighty slippery slope they've started down in this case, well started down with Brie really, but gone further down with this case.

What's slippery about it? Consent is consent. This case has clarified that you need to be really clear about that but I can't see this slippery slope you can.

 

[bmd]

The jury found that the girl was too drunk to have legally consented, therefore whether she gave consent or not was a moot point. You're assuming that the actual statements were refuted, which isn't the case afaik.

Consent is the whole point of the case. It's the fact that the jury decided that she couldn't give it due to being so intoxicated that decided the guilty verdict.

 

[Athos]

and the jury decided, and the appeals court refused leave to appeal, thereby setting the legal precedent that hadn't previously been set as low as this level afaik.

Next time there's a similar case the prosecution and judge will reference this case, the police and CPS will use this case as their guide to what's an acceptable level of drunkeness etc etc etc

tis a mighty slippery slope they've started down in this case, well started down with Brie really, but gone further down with this case.

You don't understand how the common law works. This case is not a precedent. It does not establish anything that wasn't previously settled law.

Bree is a precedent which concerns the directions a judge should give to a jury regarding intoxication, capacity and consent.

 

[Cid]

and the jury decided, and the appeals court refused leave to appeal, thereby setting the legal precedent that hadn't previously been set as low as this level afaik.

Next time there's a similar case the prosecution and judge will reference this case, the police and CPS will use this case as their guide to what's an acceptable level of drunkeness etc etc etc

tis a mighty slippery slope they've started down in this case, well started down with Brie really, but gone further down with this case.

Wrong. You don't understand how this works. Issues of law, issues of fact. If this comes up again and a judge states that Evans sets a certain bar for intoxication there will be good grounds for an appeal and I expect a conviction would be quashed. It would be a very weird thing for a judge to do though.

 

[Cid]

BTW what are these witness statements from the case that free spirit insists are to be deemed reliable in spite of the judge obviously concluding otherwise? Are they the same two that filmed it? There's at least one other witness statement in the case corroborating that she was too drunk to consent according the that Crimeline summary you linked earlier.

Judges don't conclude on witness statements, it's for the prosecution, defence and jury. But on the broader point of what free spirit's arguing I've sort of lost track. Lots of random extrapolations and confusion.

 

[Athos]

Judges don't conclude on witness statements, it's for the prosecution, defence and jury. But on the broader point of what free spirit's arguing I've sort of lost track. Lots of random extrapolations and confusion.

I can't tell is he's saying the law was wrongly applied, or if he's saying the law is wrong - that what Evans did ought not to be a crime. He's hopping from misunderstanding to misunderstanding, with no clear purpose.

 

[el-ahrairah]

this has been a very informative argument.

The List expands ever onwards.

 

[el-ahrairah]

I can't tell is he's saying the law was wrongly applied, or if he's saying the law is wrong - that what Evans did ought not to be a crime. He's hopping from misunderstanding to misunderstanding, with no clear purpose.

i liked the whole "it never used to be rape before 2008" strand. it's a shame that one wasn't teased out further. there was a lot of potential there.

 

[free spirit]

As I've already pointed out (with reference to the words of s.1) your understanding is wrong.

No. Wrong again. To convict they'd have to be convinced that he did not have a reasonable belief that she had consented.

It doesn't.

on what basis am I wrong?

I'd suggest you need to have a word with the judge in the case and the appeal court judges as they've obviously got this wrong as well.

So you will need to consider the evidence of the complainant's state and decide these two questions: was she in a condition in which she was capable of making any choice one way or another? If you are sure that she was not, then she did not consent.

He went on to direct the jury about the requirement relating to the individual defendant's belief about whether or not the complainant was consenting. He gave clear directions to the jury about how they should approach that issue in the context of the alcohol which had been consumed by
the complainant.

The decision was clearly made on the basis of whether she was too drunk to consent, and whether he should have known that she was too drunk to consent.

Without actually having transcripts from the jury room decision making process, I don;t really see how this can be any more clear cut.