I have real problems with the law that's being used in this case, and always have done since it was framed a decade or so ago.
Under UK law, anyone who gets blind drunk voluntarily is still held to be legally responsible for any actions they take while blind drunk, from driving a car to getting involved in a drunken fight to vandalism to murder etc. being blind drunk is not a defence against any charges.
Under this law though, voluntarily getting yourself drunk apparently does remove your legal right to consent to have sex with another consenting adult, and it's up to the police and then a jury to decide for you and your partner if you were too drunk to have given your consent legally if the next day you can't really remember what happened and somehow the police get involved (in this case according to Ched Evans site, the initial contact with the police related to the lost handbag and phone).
I've never understood how that was meant to work in practice, sure if someone's actually passed out then they obviously can't consent, but if you're both drunk, but both with it enough to say walk from a taxi into a hotel, hold a conversation etc. then how is anyone supposed to know that the woman that's saying they want to have sex with you isn't actually legally capable of making that decision, so you should both just ignore those drunken urges and maybe have a nice cup of tea instead.
How the fuck is that supposed to work? Should everyone on a night out be carrying breathalysers with them, and asking their potential partners to please just breath into this tube and sign this consent form in triplicate in front of a sober witness before they can consider having sex?
I know people who can spend hours dancing and getting up to all sorts of stuff, holding perfectly lucid conversations etc then in the morning they can't remember anything about the last few hours of the night, but at the time you'd not know that would be the case.
By this logic I've probably been raped myself half dozen or so times without realising it - I thought I was having drunk but consensual sex with someone I fancied, but apparently I must have been being raped if I can't entirely remember how I ended up in bed with them, or at what point I actually consented.
Here's the CPS guidance on this issue.
The question of capacity to consent is particularly relevant when a complainant is intoxicated by alcohol or affected by drugs.
In R v Bree [2007] EWCA 256, the Court of Appeal explored the issue of capacity and consent, stating that, if, through drink, or for any other reason, a complainant had temporarily lost her capacity to choose whether to have sexual intercourse, she was not consenting, and subject to the defendant's state of mind, if intercourse took place, that would be rape. However, where a complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing whether to have intercourse, and agreed to do so, that would not be rape. Further, they identified that capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, depends on the facts of the case.
In cases similar to Bree, prosecutors should carefully consider whether the complainant has the capacity to consent, and ensure that the instructed advocate presents the Crown's case on this basis and, if necessary, reminds the trial judge of the need to assist the jury with the meaning of capacity.
Prosecutors and investigators should consider whether supporting evidence is available to demonstrate that the complainant was so intoxicated that he/she had lost their capacity to consent. For example, evidence from friends, taxi drivers and forensic physicians describing the complainant's intoxicated state may support the prosecution case. In addition, it may be possible to obtain expert evidence in respect of the effects of alcohol/drugs and the effects if they are taken together. Consideration should be given to obtaining an expert's back calculation or the opinion of an expert in human pharmacology in relation to the complainant's level of alcohol/ drugs at the time of the incident.
So it's essentially all down to the judgement of the police, cps, judge and jury as to whether someone was just drunk, but still able to consent, or had crossed the line into being too drunk to consent. They could be literally begging you for sex, but the police, CPS could decide that no they were actually too pissed, so you've raped them.
It's an utterly shit law drafted by puritanical politicians who've always hated the drunken debauchery that many of us engage in / have engaged in most weekends at different stages in our lives, that goes on every weekend in most city centres across the country, a good proportion of which would involve people who would both be classed by this law as being too drunk to consent to sex, but yet they do the same thing week after week because actually that's their choice of how they want to live their lives at that point in their lives.
So, I hope Ched Evans does appeal this, and I hope that it ends up with the law being changed or significantly clarified to one that actually makes sense and doesn't remove the rights of drunk people to have consensual sex without worrying that any random police involvement afterwards could result in one of them being charged with rape just because you were both drunk.
Not that he's not a sleazy fuck for what he did, but IMO nobody should be getting imprisoned for rape when the woman involved has actually consented just because the police later decide that in their opinion she must have been too drunk to give informed consent (assuming the woman was capable of walking, talking etc rather then being passed out or virtually passed out).
