Accused rapist Ched Evans to be released from prison

[Athos]

If, notwithstanding i) the unanimous guilty verdict, ii) the fact that permission to appeal has been refused twice, and, iii) the lack of any obvious basis for asserting that the judge misdirected the jury, the CCRC decide that this case is a possible miscarriage of justice, such that it is referred to the Court of Appeal, and that appeal is successful, and the Court of Appeal acquits rather than orders a retrial, then, in the eyes of the law, he will be 'not guilty'. He wouldn't be a convicted rapist; rather he'll be someone who spent two and half years in prison for a crime he didn't commit. In which case, it'd be hard to maintain an argument that he shouldn't be re-signed.

But I'd be very, very surprised if that happened.

To put it another way: if my aunt had balls, she'd be my uncle.

 

[free spirit]

I'm going to try as consisely as possible to explain my issue with this case once more.

The defence case was that the girl had verbally consented, as attested to by both men involved.

The prosecution case was essentially that whether or not she did give her consent was irrelevant because she was too drunk to be legally capable of consenting.

Mr Philpotts said: "The prosecution say that she did not truly consent to that activity.

"She was in no fit state to consent.

"And we say that neither man reasonably believed she was consenting."

Consent has always been consent whether drunk or not, if someone clearly agrees to having sex with another person (and doesn't change their minds etc) then that should be viewed as being consensual sex, not rape.

In none of the previous cases that defined the case law on the issue of drunken consent / rape, had the accused claimed the woman had fully consented, nor had a witness to it, nor had no evidence at all given by the woman due to complete memory loss. In those previous cases the woman was determined to have been literally too drunk to either consent or properly indicate her lack of consent.

So we now have the situation where the law appears to be that consent when drunk is ok, but if someone who the CPS / police later judge to have been too drunk gives their consent, then this consent may later be judged to have not been valid consent by virtue of their level of drunkeness, particularly if it turns out that they can't remember either way what happened.

Or put simply;

Previously
If someone hadn't given their consent, and was drunk to the point where they weren't capable of either giving or refusing consent, then it would be rape.

This case
Even if someone has clearly given their consent, then if they're very drunk this consent could later be judged to not have been valid due to the level of drunkeness if it turns out that she was in a state of alcoholic blackout at the time and can't remember what happened.


In this entire thread nobody has managed to offer any clear explanation of how this is supposed to work, ie how anyone is supposed to be able to judge if the woman they're about to have sex with is too drunk for her consent to be judged to have been valid.

If people who're sober and giving this considerable thought can't explain how this is supposed to work, then it's unreasonable to expect that a drunk person should be able to make that determination when faced with another drunk person who's saying they want to have sex with them.

That's the wider context of my objection to this, it's to do with the basis of the prosecutions case and the wider implications of this if .their logic were to be applied more widely.

Note, this isn't specifically about whether to believe the statements of the 2 defendents or not, as the CPS prosecution case didn't really focus on that, instead making the case that her level of drunkeness was such that it meant she didn't have the capacity to truly consent anyway There's a.lso no evidence that she really was exceptionally drunk at the time this happened, it was about 2 hours after she'd had her last drink, and her blackout started an hour earlier at the takeaway, after which she was able to walk, get into a taxi, get out of a taxi and walk into the hotel etc.

People have consensual one night stands while in alcoholic blackout all the time, it's part of that whole binge drinking culture. Should they all be judged now as having been rape situations because the woman can't have had the capacity to truely consent?

If not, then neither should this case IMO.

 

[free spirit]

You weren't in court and your 'evidence' is based on the twisted lies on Evans' disgusting site. You're a vile rape apologist and don't you fucking DARE make out you're some knight of justice.

it's not you know. I've only scanned that site once, then went to a fair amount of effort to check as many unbiased sources as I could find as I couldn't get my head around the basis on which he'd been prosecuted and found guilty.

I originally started attempting to have a discussion about the wider implications of the way the prosecution in the case had approached the issue of drunken consent / being too drunk to consent. It unfortunately seems pretty much impossible to have that discussion, which is a bit problematic as the law now appears to be clear as mud on this issue.

 

[free spirit]

This is the nub. You think it's okay to have sex with incapacitated women you don't know. I think it's rape. As did the jury. Your views are vile, dangerous and criminal. You have been lucky up to now. But you won't always be lucky.

I don't think it's ok to have sex with incapacitated women, that would rightly be rape.

I do think it's ok to have consensual sex with a drunk woman, and the law has always been that this is ok.

I object to a situation where the law has been used in such a way as to mean that if a woman actually consents while drunk, but not what would usually have been seen as being incapacitated, then there's a possibility that this could later be disregarded on the basis of her being judged to have been too drunk to have had the legal capacity to truly consent at that point.

But feel free to explain clearly at what point drunkenness now turns into someone being incapacitated if you're happy with the way the law has been applied here.

 

[toggle]

I don't think it's ok to have sex with incapacitated women, that would rightly be rape.

I do think it's ok to have consensual sex with a drunk woman, and the law has always been that this is ok.

I object to a situation where the law has been used in such a way as to mean that if a woman actually consents while drunk, then there's a possibility that this could later be disregarded on the basis of her being judged to have been too drunk to have had the legal capacity to truly consent at that point.

But feel free to explain clearly at what point drunkenness now turns into someone being incapacitated if you're happy with the way the law has been applied here.

As i believe has been said several times, a set point has not been made. ti's down to the jury to decide if, in their opinion, the prosecution has successfully made it's case that someone is incapacitated.

if any 'point' needs to be discussed, it is this. - if you need a formula to tell you when someone is too drunk for it to be ok to stick your penis in them, then perhaps that activity is best left to those capable of more nuanced judgement and respect for their partners. that goes doubly so when you're responding to a text from a mate offering you seconds.

 

[free spirit]

I can't seem to find a UK based definition, but these 2 definitions and explanations of incapacity through alcohol (or drugs) are pretty much how I've always understood it.

Incapacitation is defined as the inability, temporarily or permanently, to give consent because the individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring.

Assessing Incapacity
Physical incapacities are sometimes quite overt, and other times more subtle. Incapacitation is a subjective determination that will be made after the incident, in light of all the facts available. Incapacitation is subjective because people reach incapacitation in different ways and as the result of different stimuli. They exhibit incapacity in different ways. Incapacity is dependent on many or all of the following factors:

• Body weight, height and size;
• Genetics;
• Tolerance for alcohol and other drugs;
• Amount, pace and type of alcohol or other drugs consumed;
• Amount of food intake prior to consumption;
• Voluntariness of consumption;
• Vomiting;
• Level of consciousness.

None of these factors, except for the last, may constitute--in and of themselves-- incapacitation. But, the process of finding someone responsible for a violation of the sexual misconduct policy related to incapacity involves careful examination of all evidence, amounting to a sufficient or insufficient meeting of the preponderance of the evidence standard. This standard may be met with some combination of factors. For example, it might be met if someone is passing in and out of consciousness, and there is a high probability they could pass out again. Or, it might be met if someone is vomiting so violently and so often that they are simply in such bad shape that they cannot be said to have capacity.

I don't see that someone who's bought a pizza, got into and out of a taxi, and walked into a hotel under her own steam, can then be said to be incapacitated through drink half an hour after arriving at the hotel on the basis of no other evidence, and where she'd not had anything to drink for 2 hours by that point, so if anything ought to have been sobering up rather than getting more drunk during that half an hour. Drunk yes, incapacitated no.

 

[free spirit]

As i believe has been said several times, a set point has not been made. ti's down to the jury to decide if, in their opinion, the prosecution has successfully made it's case that someone is incapacitated.

if any 'point' needs to be discussed, it is this. - if you need a formula to tell you when someone is too drunk for it to be ok to stick your penis in them, then perhaps that activity is best left to those capable of more nuanced judgement and respect for their partners. that goes doubly so when you're responding to a text from a mate offering you seconds.

If you can't explain it when sober, how do you expect anyone to be able to work out where that point is when drunk?

and bear in mind here I'm talking about a hypothetical situation in which the woman is actually verbally consenting to sex at the time.

I thought I understood this, but this case has thrown me as very little about her actions that were used as evidence by the CPS would have indicated to me that she should be considered to be incapacitated through alcohol to the extent where she shouldn't be judged to have had the legal capacity to consent if she actually did verbally consent (as alleged, and not really challenged).

 

[free spirit]

I stumbled across this interesting paragraph in a 2006 consultation response by the Arts and Humanities Research Council Centre for Law, Gender and Sexuality.

Setting the Boundaries(July 2000) recommended that a person was unable to consent when ‘too affected by alcohol...to give free agreement’ (2.10.9) yet this is not included as an evidential presumption under the Sexual Offences Act 2003 s.75.

This was apparently due to a concern, expressed by the then Home Secretary (in Hansard), about false allegations

So the government specifically didn't include this recommendation in the legislation, and yet the CPS seems to have basically taken the concept of 'capacity' and used it to achieve the same effect in this case.

It also agrees that the issue of how capacity / incapacitated is defined is problematic and recommended that it should be defined in statute.

Emily Finch and Vanessa Munro’s research on rape suggests that, in the absence of further definition, mock jurors will interpret capacity in divergent ways, thereby creating different outcomes in factually analogous cases.

A statutory definition of capacity would be informed and underpinned by an understanding that persons engaging in sexual practices have to understand not only the nature but also the consequences of their acts (e.g. at least sexually transmitted diseases, pregnancy). Foresight of consequences, although notimpossible, is unlikely in the later stages of intoxication. Assessing when this stage is reached is something the law already does in the context of the defence of intoxication in crimes of specific intent

If the law on what constitutes someone being incapacitated through alcohol is going to be changed to include anyone who's slurring their words a bit / has fallen over once (in heels), then it should be done via parliament, and should be clearly explained and debated. It should not be done via case law with the CPS seeking to effectively implement a line of the original proposed legislation that had been removed prior to the law being passed.

 

[free spirit]

Some more on the issue of capacity.

The Sexual Offences Act 2003 does not give a definition of capacity. Surely this needs to be changed as the courts have no definition of capacity.

‘Therefore they have to look for some kind of assistance at common law, although it is abundant that there are still no clear principles governing whether a person had the capacity or not to consent to sexual activity’ [26] .

In the case of R v Morgan [1970] VR 337 ‘the test for capacity to consent to having sexual relations required a person to have “sufficient rudimentary knowledge of what the act compromises and of its character to enable her to decide whether to give or withhold consent”’ [27] .

‘In a public law decision X City Council v MB [2007] 3 FCR 371 the common law test of capacity was regarded as being that a person will thus lack capacity to consent if she or he has no real understanding of what is involved, or has such limited knowledge, awareness or understanding as to be in no position to decide whether to agree’ [28] .

Therefore the threshold of the word ‘capacity’ seems to be a low one. One would seem surprised at this as capacity is obviously a very important issue when there is a situation that includes voluntary intoxication, for example an incident where the claimant has voluntarily intoxicated herself to the point where she has no control over what she does or does not do. In the case of R v Bree [2007] EWCA 256 [29] the complainant accused the defendant of having non consensual sex with her after an evening of heavy alcohol drinking. ‘She could not remember much of the evening and her recollection of the evening had considerable gaps in it’ [30] . ‘The defendant’s case was that the hazy recollection was either due to the effects of the alcohol which made her forget, that she had consented or that she was lying’ [31] .
source

And here's a previous similar case to demonstrate how unclear this situation is legally.

However concerns were raised after the case of R v Dougal [2005] Swansea Crown Court the judge directed the jury to enter a ‘not guilty’ plea purely because it was unable to prove that the complainant had not given consent due to her level of intoxication’

It would also seem that this confusion was recognised, and the government attempted to resolve it but their proposals were blocked by the judges.

Government plans for changes in the law to boost rape conviction rates are in disarray after the judges who would have to put them into practice told ministers they oppose them.
The Council of Circuit Judges, the influential body representing all 637 circuit judges in England and Wales, has dismissed all the proposals, including a measure to try to make it easier to convict in cases where the victim was binge-drinking.

But the judges have rejected all the principal proposals, which include:

A new statutory definition of capacity to consent to sexual intercourse, which would clarify when a woman can be considered too drunk to make the decision.
source

So it really isn't just me who's struggling to work out what the actual law is supposed to be on this point. If everyone else on this thread has this completely sussed out, then please explain it as your lack of clear explanations so far indicates that actually you don't really understand it either, or can't explain it in a way that would apply to this case.

I do have a real problem with the idea that complete memory loss itself should be taken as evidence of lack of being incapacitated as IME the 2 things can be occur at very different points, particularly with people who're binge drinking with vodka redbull / vodka and coke etc or spirits and cocaine / speed etc as the alcohol can still block the formation of new memories, while the caffeine, sugar. coke, speed etc counteracts it and keeps them appearing pretty with it, lively, able to hold a conversation etc.

 

[Citizen66]

I'm going to try as consisely as possible to explain my issue with this case once more.

The defence case was that the girl had verbally consented, as attested to by both men involved.

Well they're hardly likely to claim otherwise, are they?

 

[spanglechick]

She was so drunk she wet the fucking bed. That on its own indicates to me that she was very drunk. Maybe not to you.

You seem to think a very high level of drunkenness should be needed before a person starts questioning the validity of consent that may have been given.

The law would appear to disagree with you.

It's pretty simple to the rest of us on this thread, though. Is your partner drunk y/n?

If yes, how sure are you that they would be keen to shag you even if they weren't drunk?

If they willingly got into a cab with you and willingly went back to a hotel room with you, you're probably fair to assume that they are up for it.

If, otoh, you have never met them, got a text message from a mate saying he'd "got one", but nothing in that text suggested her desire to meet you/have a threesome/have sex with a total stranger etc, and you turn up at the hotel and plan to have sex with this person pretty much straight away... But the person turns out to be drunk - then I'm afraid the only non-abusive outcome is to walk away because nothing in that scenario should give you reasonable belief that she would consent if she were sober.

 

[BigTom]

I'm going to try as consisely as possible to explain my issue with this case once more.

The defence case was that the girl had verbally consented, as attested to by both men involved.

The prosecution case was essentially that whether or not she did give her consent was irrelevant because she was too drunk to be legally capable of consenting.



Consent has always been consent whether drunk or not, if someone clearly agrees to having sex with another person (and doesn't change their minds etc) then that should be viewed as being consensual sex, not rape.

In none of the previous cases that defined the case law on the issue of drunken consent / rape, had the accused claimed the woman had fully consented, nor had a witness to it, nor had no evidence at all given by the woman due to complete memory loss. In those previous cases the woman was determined to have been literally too drunk to either consent or properly indicate her lack of consent.

So we now have the situation where the law appears to be that consent when drunk is ok, but if someone who the CPS / police later judge to have been too drunk gives their consent, then this consent may later be judged to have not been valid consent by virtue of their level of drunkeness, particularly if it turns out that they can't remember either way what happened.

Or put simply;

Previously
If someone hadn't given their consent, and was drunk to the point where they weren't capable of either giving or refusing consent, then it would be rape.

This case
Even if someone has clearly given their consent, then if they're very drunk this consent could later be judged to not have been valid due to the level of drunkeness if it turns out that she was in a state of alcoholic blackout at the time and can't remember what happened.


In this entire thread nobody has managed to offer any clear explanation of how this is supposed to work, ie how anyone is supposed to be able to judge if the woman they're about to have sex with is too drunk for her consent to be judged to have been valid.

If people who're sober and giving this considerable thought can't explain how this is supposed to work, then it's unreasonable to expect that a drunk person should be able to make that determination when faced with another drunk person who's saying they want to have sex with them.

That's the wider context of my objection to this, it's to do with the basis of the prosecutions case and the wider implications of this if .their logic were to be applied more widely.

Note, this isn't specifically about whether to believe the statements of the 2 defendents or not, as the CPS prosecution case didn't really focus on that, instead making the case that her level of drunkeness was such that it meant she didn't have the capacity to truly consent anyway There's a.lso no evidence that she really was exceptionally drunk at the time this happened, it was about 2 hours after she'd had her last drink, and her blackout started an hour earlier at the takeaway, after which she was able to walk, get into a taxi, get out of a taxi and walk into the hotel etc.

People have consensual one night stands while in alcoholic blackout all the time, it's part of that whole binge drinking culture. Should they all be judged now as having been rape situations because the woman can't have had the capacity to truely consent?

If not, then neither should this case IMO.

Short of using breathalysers and having a legal limit like drink driving, you're asking for precision that isn't reasonable. It's always a judgement call based on someone's behaviour, and the better you know someone the easier it is to judge when they've had too much and need to be looked after/out for/taken home.

That call is harder to make the drunker you are, not just cos your senses are impaired but because apparent drunkenness is relative (ie: if you're very drunk, other people who are very drunk won't seem that drunk to you)

So the jury has to make a judgement call, just like someone on a night out. And they should (and imo did) take into account the different levels of difficulty the two men would have had making this judgement call

I was then going to talk about how it is the way in which the men behaved which makes the difference but spangles has said it so well just above me, I won't bother.

 

[Athos]

free spirit, you still don't understand the legal concepts in question, and your position is made no stronger by selectively quoting various (largely irrelevant) sources. Yet you continue to make false assertions about what the law was before this case, and what it was now. It's been explained to you, at length, why you are wrong. But you won't accept it. Nor, apparently, will you accept that the consequence of this case is not that thousands of people will be criminalised by ordinary drunken sex, despite the fact that there's been no opening of the flood gates in the years since the judgment.

You clearly feel that you know better than others on this thread, the trial judge, the jury and the court of appeal, about the facts and legal argument in this case. But you really don't.

 

[killer b]

I'm not sure why you're persevering with this FS. It's like you weren't satisfied with smearing your faeces all over the floor & walls, now you're going for the ceiling too?

 

[belboid]

Fuck off FS, your reactionary drivel has been ripped to pieces before. so stop lying and hoping some late comers are taken in by your rubbish.

Lets take one specific lie from you:

If people who're sober and giving this considerable thought can't explain how this is supposed to work, then it's unreasonable to expect that a drunk person should be able to make that determination when faced with another drunk person who's saying they want to have sex with them.


Now, even skipping over the fact that your premise is faulty, the question of how a drunk person is meant to blah blah blah, is wholly irrelevant as Evans wasn't drunk. You have chosen to deliberately muddle the two people, for our own reactionary ends.
And, of course, you skip over the most salient fact, which is that the jury clearly believed Evans had lied about his view of the victims sobriety. He was established as a liar, and therefore his statements on consent were dismissed, as those of a liar. That is what convicted him not your string of bollocks.

To sum up again: fuck off.

 

[Wilf]

In this entire thread nobody has managed to offer any clear explanation of how this is supposed to work, ie how anyone is supposed to be able to judge if the woman they're about to have sex with is too drunk for her consent to be judged to have been valid.

If people who're sober and giving this considerable thought can't explain how this is supposed to work, then it's unreasonable to expect that a drunk person should be able to make that determination when faced with another drunk person who's saying they want to have sex with them.

free spirit do you think Evans was drunk?

 

[likesfish]

I think the idea that your mate texts you to say found one.
Is possibly a clue that things are not kosher

 

[Pickman's model]

I don't think it's ok to have sex with incapacitated women, that would rightly be rape.

I do think it's ok to have consensual sex with a drunk woman, and the law has always been that this is ok.

I object to a situation where the law has been used in such a way as to mean that if a woman actually consents while drunk, but not what would usually have been seen as being incapacitated, then there's a possibility that this could later be disregarded on the basis of her being judged to have been too drunk to have had the legal capacity to truly consent at that point.

But feel free to explain clearly at what point drunkenness now turns into someone being incapacitated if you're happy with the way the law has been applied here.

if you have to wonder whether either partner's in a fit state to give consent then they're clearly not.

 

[Wilf]

FS, you've had some sharp responses on this thread. Personally, I'm happy to agree with you that there's an issue with what can be deduced from an alcoholic blackout (though I'd take the more straightforward route of seeing this as something that helps the prosecution rather than the defence). I also agree there's an issue for the court of actually knowing how drunk she was when evans arrived, particularly the lack of independent witnesses. So yes, these are not insignificant issues and they are ones that can be discussed. That means there's also the possibility that evans was an exploitative scumbag, but not a rapist.

Trouble is in what was always going to be a difficult job for the prosecution, they did convince the jury. They got over what was going to be a very high hurdle - and I've not seen anything from you or others on this thread that shows they got it wrong.

 

[Betsy]

As i believe has been said several times, a set point has not been made. ti's down to the jury to decide if, in their opinion, the prosecution has successfully made it's case that someone is incapacitated.

if any 'point' needs to be discussed, it is this. - if you need a formula to tell you when someone is too drunk for it to be ok to stick your penis in them, then perhaps that activity is best left to those capable of more nuanced judgement and respect for their partners. that goes doubly so when you're responding to a text from a mate offering you seconds.

This!

 

[belboid]

PaulHeaton has resigned from the united community foundation.

 

[butchersapron]

Took your effin time paul but, well done.

edit: Interesting worded statement. It's actually mealy mouthed union bollocks. So not well done.

 

[Wilf]

PaulHeaton has resigned from the united community foundation.

I wonder what PR people call the current situation? We've gone from 'the PFA asked us to let him train and anyway he's served his time' to... pretty much nothing. They must know he'll be hoyed out, but haven't go anything to say about it. Trouble is, having gone on about the traditions of the club and values, it will look like those values were compatible with both employing him and kicking him out.

Sorry, that wasn't veryclear, I'm just suggesting they are a bunch of spineless hypocrites.

 

[butchersapron]

Do it elsewhere - not here. But do it.

Pathetic paul.

 

[butchersapron]

I love Paul Heaton but that statement is more pathetic by the minute. Of all the people that i thought wouldn't bottle it...he bottles it.

 

[Citizen66]

Do it elsewhere - not here. But do it.

Pathetic paul.

Yeah that was a bit wtf. Let him re-build his career just stop dragging Sheffield Utd through the mud.

 

[belboid]

Do it elsewhere - not here. But do it.

Pathetic paul.

Very true, the one thing going for it is that he isn't mealy mouthed about saying 'it was rape'

 

[brogdale]

Paraphrased from the end of his C4 News interview"...any issue of contrition is hypothetical 'cause Evans and his friends maintain his innocence."

 

[Wilf]

I've no real problem with having the theoretical right to return to football, I'm not that keen on 'role model' arguments anyway. However there's all the difference in the world between that and a club choosing to take him on, particularly as football doesn't recruit through open application and recruitment. I'm not calling for some kind of blacklist, but you do have to ask why any chair or manager of a club would take active steps to put an unrepentant rapist on the books. That's even more the case when it comes to Sheffield (United ) as he's already dragged their name through the mud.

 

[Bahnhof Strasse]

I have a problem with him returning to football, it would make him a high profile celebrity.

He's a rapist.