Accused rapist Ched Evans to be released from prison

[marshall]

Can't get my head round why his g/f is standing by him, it's not for the money or WAG lifestyle as her dad's obviously loaded. How do you forgive that kind of behaviour? What are you telling yourself? How do you thnk it's going to go when he gets out? A very tainted kind of love.

 

[Teaboy]

FWIW I wouldn't want Evans playing for my club because of the negative publicity it would attract and the inevitable crowd reaction at every game for the forseeable future,

Would you not want him to play for your club because he's a rapey fucker?

Virtually every club invests a lot of time and money in building their reputation as a family and community club - free tickets for the kids, players attending local training sessions / fund raisers etc. I mean really, how would he do his bit for the club in the community?

 

[Cid]

Just read that report and I have to say I agree with the conviction 100%. I can see why McDonald was acquitted but it could have easily gone the other way for him, too. If she was unable to consent to sex with Evans, then she was unable to consent to sex with him, surely?

Evans leaving by an emergency exit wasn't seemingly a factor in the jury's decision but it seems pretty important to me. Why do that unless you're trying to hide something?

Rape isn't simply an issue of the victim's consent, the defendant is required to have a guilty state of mind; i.e for there to be a crime the defendant must in some way intend to commit it (mens rea). In the case of rape there is a specific component (under s.1 of the Sexual Offences Act iirc) that the defendant is not guilty where they have a reasonable belief that victim is consenting.

In this case the jury had decided that the victim was unable to consent. This is part of the actus reus (action required for there to be a crime), in rape non-consensual penetration. The actus reus took place, but in McDonald's case the jury decided that he did not have the required mens rea.

In their situation the line of reasoning might go something like this: The test for a reasonable belief has two components, is there a belief (a subjective element) and is that belief reasonable (an objective element). In McDonald's case there was clearly a belief in consent. Whether that belief was reasonable depends on the facts - given the evidence of the taxi driver and hotel porter it seems as though the belief was reasonable. That might be much harder to establish in the case of Evans; there is no evidence of the victim's conduct in relation to him.

The two defendants seem very similar on a casual examination but are legally quite distinct.

 

[Fez909]

Rape isn't simply an issue of the victim's consent, the defendant is required to have a guilty state of mind; i.e for there to be a crime the defendant must in some way intend to commit it (mens rea). In the case of rape there is a specific component (under s.1 of the Sexual Offences Act iirc) that the defendant is not guilty where they have a reasonable belief that victim is consenting.

In this case the jury had decided that the victim was unable to consent. This is part of the actus reus (action required for there to be a crime), in rape non-consensual penetration. The actus reus took place, but in McDonald's case the jury decided that he did not have the required mens rea.

In their situation the line of reasoning might go something like this: The test for a reasonable belief has two components, is there a belief (a subjective element) and is that belief reasonable (an objective element). In McDonald's case there was clearly a belief in consent. Whether that belief was reasonable depends on the facts - given the evidence of the taxi driver and hotel porter it seems as though the belief was reasonable. That might be much harder to establish in the case of Evans; there is no evidence of the victim's conduct in relation to him.

The two defendants seem very similar on a casual examination but are legally quite distinct.

Excellent explanation, thanks.

 

[Athos]

Rape isn't simply an issue of the victim's consent, the defendant is required to have a guilty state of mind; i.e for there to be a crime the defendant must in some way intend to commit it (mens rea). In the case of rape there is a specific component (under s.1 of the Sexual Offences Act iirc) that the defendant is not guilty where they have a reasonable belief that victim is consenting.

In this case the jury had decided that the victim was unable to consent. This is part of the actus reus (action required for there to be a crime), in rape non-consensual penetration. The actus reus took place, but in McDonald's case the jury decided that he did not have the required mens rea.

In their situation the line of reasoning might go something like this: The test for a reasonable belief has two components, is there a belief (a subjective element) and is that belief reasonable (an objective element). In McDonald's case there was clearly a belief in consent. Whether that belief was reasonable depends on the facts - given the evidence of the taxi driver and hotel porter it seems as though the belief was reasonable. That might be much harder to establish in the case of Evans; there is no evidence of the victim's conduct in relation to him.

The two defendants seem very similar on a casual examination but are legally quite distinct.

Which the Evan's campaign seeks to downplay as some sort of 'legal nicety', suggesting that the differing verdicts are in some way perverse/illogical.

 

[JTG]

I was reading about DJ Campbell, an ex premiership striker who was accused of match fixing but not charged in the end - he was let go by his last club and couldn't get a sniff of another league contract, so signed up for a non-league club (Maidstone) yet a convicted rapist appears to have no problems getting a new contract

Maidenhead United

Four years ago, David Pipe was released by my club (Bristol Rovers) after he was charged (but before he stood trial) for smashing a champagne bottle over another man's head and fracturing his skull. While I was aware that Pipe wasn't a particularly nice fella, I was horrified that someone representing my club had been involved in such a brutal assault and would have felt extremely uncomfortable had we attempted to re-employ him after his release from prison. He has since played for Newport County and Forest Green Rovers.

Otoh, I'm also uncomfortable with campaigning to prevent convicted offenders who have served their time from taking up employment. However, I'm pretty certain that if I were a Sheffield United fan I would not be intending to fund his wages from my own.

 

[gabi]

Weird case. Just read a fairly indepth account of what happened on the Mail (yes yes I know). Seems odd the other guy got off when he 'procured' the girl and had sex with her when she was at her drunkest, before Evans even got to the motel.

Not saying Evans is innocent, just trying to understand why the other guy isn't doing time.

 

[toggle]

There's a detailed report on the trial here. It's more to do with whether either defendant could reasonably believe she had consented. The mens rea element of rape is intention to penetrate and that the defendant did not reasonably believe that the victim would consent. No mens rea, no crime... The jury is able to take into account all the circumstances in establishing a reasonable belief in consent. In McDonald's case she came back to the hotel with him, apparently voluntarily - her conduct might indicate that it was reasonable for McDonald to believe she was consenting. It's not difficult to distinguish that from Evans who came to the flat later, the only evidence given that she consented in that case is the defence stating that she said 'yes' and was willing.

The appeals are based on the possibility that she did in fact consent (i.e that she had the capacity to do so and did). This was also an issue decided by the jury who seem to have been properly directed by the judge. On the facts they decided that she was not capable of consent, hence why McDonald had to rely on reasonable belief. Decisions by a properly directed jury are very difficult to appeal, which is why this (seemingly correctly) has not been allowed. The report doesn't say she was unconscious btw.

that reasonable belief in her consent based on her going back to the room with him sounds a lot like saying 'she was asking for it'

Which the Evan's campaign seeks to downplay as some sort of 'legal nicety', suggesting that the differing verdicts are in some way perverse/illogical.

they are from where i'm standing, but the perverse thing is that the other bloke got off.

 

[toggle]

Can't get my head round why his g/f is standing by him, it's not for the money or WAG lifestyle as her dad's obviously loaded. How do you forgive that kind of behaviour? What are you telling yourself? How do you thnk it's going to go when he gets out? A very tainted kind of love.

it's not just blokes that go in for blaming the victim of rape for causing the circumstances of their attack. if you believe that having sex with an/near unconcious woman is the wo,an's fault, for putting yherself in that situation, then she's forgiving him for infidelity. assuming they have the kind of relationship where sleeping with other women isn't ok.

eta...

people want to believe rape is rare and is done by ugly strangers in alleys who rape cause that's the only way they can get sex. because that would be a better scenario than the actual real world, where you can't spot a rapist by their shifty looks.

 

[Cid]

that reasonable belief in her consent based on her going back to the room with him sounds a lot like saying 'she was asking for it'

It's actually a relatively recent reform iirc, the test used to be purely subjective. It is important that the reasonable element is there, the jury will have considered more than just the fact they went to the room together (would be stuff like the videos, statements by the porter etc). We can't see jury deliberations of course. There is an obvious problem with that - why should the complainant's behaviour leading up to the offence be relevant? Surely it is consent at the time that matters... The focus remains on the complainant's behaviour, not the defendant's. The problem here is with the wording of the relevant legislation; "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."

It's also a problem that once sufficient evidence (of a reasonable belief in consent) is adduced the prosecution must disprove it beyond reasonable doubt. Again this necessitates going through all the circumstances leading up to the event. It isn't easy to resolve, I think a stronger objective element is necessary, along with more guidance on the type of evidence needed to establish reasonable belief.

 

[toggle]

It's actually a relatively recent reform iirc, the test used to be purely subjective. It is important that the reasonable element is there, the jury will have considered more than just the fact they went to the room together (would be stuff like the videos, statements by the porter etc). We can't see jury deliberations of course. There is an obvious problem with that - why should the complainant's behaviour leading up to the offence be relevant? Surely it is consent at the time that matters... The focus remains on the complainant's behaviour, not the defendant's. The problem here is with the wording of the relevant legislation; "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."

It's also a problem that once sufficient evidence (of a reasonable belief in consent) is adduced the prosecution must disprove it beyond reasonable doubt. Again this necessitates going through all the circumstances leading up to the event. It isn't easy to resolve, I think a stronger objective element is necessary, along with more guidance on the type of evidence needed to establish reasonable belief.

I'm sure you can imagine what I want to shout from the rooftops about what I think of that.

I think this situation really does bring it home about attitudes to consent, both within the judicial system and in some sections in society. perhaps a lot of society.

 

[Wilf]

They should 100% NOT take him back. I'm bemused by the idea that's even a possibility. It's not as if he was still under contract, went down fo 3 months say and then resumed the rest of this career. afaik they made a correct decision to kick him out when he was convicted. They are now taking an active step of re-employing him*. As with any offender he can look for jobs, subject to sex-offender restrictions, but choosing to allow him back from where he was sacked if a very bad idea.

* at least thinking about it.

 

[Cid]

I'm sure you can imagine what I want to shout from the rooftops about what I think of that.

I think this situation really does bring it home about attitudes to consent, both within the judicial system and in some sections in society. perhaps a lot of society.

This is legislation, it is attitudes to consent in parliament (specifically parliament in 2003). I think in this case the law has been applied correctly - i.e the judicial function of applying the law has been executed. Reading the case the judge gave all the proper directions to give effect to legislation as set down in parliament. The jury came to an opinion on the facts of the case based on that law. The only way to change it would be for parliament to create new legislation. It's possible that a court could make a declaration of incompatibility with the ECHR, but the Crown Court can't do that and the circumstances for a higher court to make such a ruling are unlikely to arise. The case calling the met to account over failure to investigate John Worboys properly is interesting (DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC) , although the circumstances are really not the same as calling the government to account for drafting bad legislation (which would be going into parliamentary supremacy).

There has been a fair amount of academic criticism of the legislation... It is a difficult area to work out the law in and I think it requires a complete rethink as well as a major campaign opening a public discussion of what consent actually is. It's possible that a tiered set of rape offences would help (there are two GBH offences with differing mens rea and partial defences to murder where there isn't intent to kill/cause GBH, also iirc the recklessness for sexual assault is 'better'). I think it's difficult to remove the defence of a reasonable belief in consent, but it could be qualified to a more objective standard - a reasonable, sober and informed [as to the law] person. Further qualification on how to apply the law where the defendant knew the complainant was intoxicated might help. Also clarification as to 'all the circumstances'; I think some commentators regarded this more as the defendant's circumstances, something only to be used in exceptional circumstances (the defendant's inherent ability to understand what is reasonable; might relate to defendant's age or possible MH issues). At the moment it is for the jury to decide which of the circumstances are relevant, without further guidance it's very wide.

There are also inherent problems with an adversarial system - difficult to get around that. I think the key starting points have to be a change in the legislation and the opening of public debate. Alongside holding the police to account for failure to properly investigate at any level (DSD above was obviously a particularly serious case).

 

[toggle]

. At the moment it is for the jury to decide which of the circumstances are relevant, without further guidance it's very wide.

and obviously, juries are made up of people who hold the general biases and misunderstandings of consent that we see surrounding this case. a great many people are happy to dissect the behavior of the victim to determine whether or not her actions were, at best, negligent.

 

[Athos]

and obviously, juries are made up of people who hold the general biases and misunderstandings of consent that we see surrounding this case. a great many people are happy to dissect the behavior of the victim to determine whether or not her actions were, at best, negligent.

What would you advocate as an alternative?

 

[toggle]

What would you advocate as an alternative?

why assume I would want an alternative?

 

[Athos]

This is legislation, it is attitudes to consent in parliament (specifically parliament in 2003). I think in this case the law has been applied correctly - i.e the judicial function of applying the law has been executed. Reading the case the judge gave all the proper directions to give effect to legislation as set down in parliament. The jury came to an opinion on the facts of the case based on that law. The only way to change it would be for parliament to create new legislation. It's possible that a court could make a declaration of incompatibility with the ECHR, but the Crown Court can't do that and the circumstances for a higher court to make such a ruling are unlikely to arise. The case calling the met to account over failure to investigate John Worboys properly is interesting (DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC) , although the circumstances are really not the same as calling the government to account for drafting bad legislation (which would be going into parliamentary supremacy).

There has been a fair amount of academic criticism of the legislation... It is a difficult area to work out the law in and I think it requires a complete rethink as well as a major campaign opening a public discussion of what consent actually is. It's possible that a tiered set of rape offences would help (there are two GBH offences with differing mens rea and partial defences to murder where there isn't intent to kill/cause GBH, also iirc the recklessness for sexual assault is 'better'). I think it's difficult to remove the defence of a reasonable belief in consent, but it could be qualified to a more objective standard - a reasonable, sober and informed [as to the law] person. Further qualification on how to apply the law where the defendant knew the complainant was intoxicated might help. Also clarification as to 'all the circumstances'; I think some commentators regarded this more as the defendant's circumstances, something only to be used in exceptional circumstances (the defendant's inherent ability to understand what is reasonable; might relate to defendant's age or possible MH issues). At the moment it is for the jury to decide which of the circumstances are relevant, without further guidance it's very wide.

There are also inherent problems with an adversarial system - difficult to get around that. I think the key starting points have to be a change in the legislation and the opening of public debate. Alongside holding the police to account for failure to properly investigate at any level (DSD above was obviously a particularly serious case).

You could make it a strict liability offence i.e. it is made out in the absence of consent. This would mean that, in a case like this, the crown would only have to prove the victim's incapacity, and nothing more. It has the attraction of requiring no analysis of the defendant's state of mind. Arguably, another strength is that it prevents defendants from exploiting the benefit of the doubt regarding their own understanding; though, depending on your point of view, failing to afford the defendant the benefit f doubt could equally be described as a drawback.

 

[Athos]

why assume I would want an alternative?

I got the impression (perhaps mistakenly) that, in highlighting the weaknesses of the status quo, you had an alternative in mind.

 

[littlebabyjesus]

I think it's difficult to remove the defence of a reasonable belief in consent, but it could be qualified to a more objective standard - a reasonable, sober and informed [as to the law] person.

Sober?! You can't take away the possibility of drunken consent. Not in our society.

 

[Cid]

Sober?! You can't take away the possibility of drunken consent. Not in our society.

As an objective test of the defendants ability to assess whether someone is able to consent. Would someone sober (I'm not even sure it's an important point, it may be implied in 'reasonable person') say that the defendant's belief that consent was given was reasonable?

In any case it doesn't relate to drunken consent (the case law on which is pretty dubious anyway), the defence only arises where it has been established that the claimant was incapable of forming consent.

 

[littlebabyjesus]

Ah, I see. Misunderstood.

 

[Cid]

You could make it a strict liability offence i.e. it is made out in the absence of consent. This would mean that, in a case like this, the crown would only have to prove the victim's incapacity, and nothing more. It has the attraction of requiring no analysis of the defendant's state of mind. Arguably, another strength is that it prevents defendants from exploiting the benefit of the doubt regarding their own understanding; though, depending on your point of view, failing to afford the defendant the benefit f doubt could equally be described as a drawback.

Strict liability might work, yeah... I think the situations where the claimant can't consent but to all outward appearances can consent would be rare (especially given the standards in the 'drunken consent is still consent' case).

 

[ViolentPanda]

What would you advocate as an alternative?

I advocate that you get kicked in a buttock every time someone voices a social prejudice about rape.
It wouldn't solve anything, but it'd amuse me, because I'm a cunt!

 

[ViolentPanda]

I got the impression (perhaps mistakenly) that, in highlighting the weaknesses of the status quo, you had an alternative in mind.

Surely the weakness of the status quo means that any attempt to reform it will also be partial, weak and saturated in patriarchal assumptions? It's pretty difficult to formulate meaningful legislation with regard to sex and gender when there's such a mountain to climb in terms of institutional and social prejudices and assumptions.

 

[Athos]

I advocate that you get kicked in a buttock every time someone voices a social prejudice about rape.
It wouldn't solve anything, but it'd amuse me, because I'm a cunt!

 

[Athos]

Surely the weakness of the status quo means that any attempt to reform it will also be partial, weak and saturated in patriarchal assumptions? It's pretty difficult to formulate meaningful legislation with regard to sex and gender when there's such a mountain to climb in terms of institutional and social prejudices and assumptions.

Yes, which is why I queried what I thought (wrongly, it seems) Toggle was saying i.e. that there was a better alternative to juries.

 

[Citizen66]

I wonder what the chants on the terraces will be like.

You got five years for seconds up
And now you're gonna lose the cup

/rape not funny though

 

[Citizen66]

This is all just about shite sentencing.

Once someone's served their time they should be considered rehabilitated and able to continue their employment. If they're not rehabilitated they shouldn't be released. Evans clearly isn't if he still thinks he didn't rape the woman.

So his sentence should be extended.

First offence rape should be a mandatory 10 years.

Second offence - life.

It's not about shite sentencing at all. It's about whether he has brought his profession into disrepute and should no longer be a role model being paid silly money. If he served a further three years the same debate would crop up (albeit his career may have passed its sell by date by then anyway). Or at least that's what the debate in the media is.

 

[Citizen66]

More detailed info from this site..

http://chedevans.com/

A deeply unpleasant website. I think it makes him look worse (and his 'supporters'). For all their millions neither him or his gf's dad has a clue about PR.

 

[Wilf]

A deeply unpleasant website. I think it makes him look worse (and his 'supporters'). For all their millions neither him or his gf's dad has a clue about PR.

This is also an odd phrase to use, bottom of the front page:

Finally it should be noted that the burden of proof in criminal law lies with the Prosecution and that in order to gain a conviction the Prosecution must prove ‘beyond reasonable doubt’ that a crime was committed i.e. the Jury has to be sure an offence has taken place. Essentially, this means that following the submissions of the Prosecution if there remains any doubt that a crime has been committed the accused must be acquitted. It is not for the accused to prove his innocence.

Whilst legally true, it's a weird line to take when trying to win hearts and minds.