The REAL Lessons The Ched Evans Case Should Teach Men
October 15, 2016
by Martin Odoni
The retrial of Ched Evans, the footballer accused of rape whose conviction was overturned, has returned a verdict of Not Guilty. Inevitably, there has been a lot of outrage from all quarters. Many of Evans’ supporters have been caught up in a storm of misogynistic outrage, ‘slut-shaming’ the woman he was charged with assaulting and calling for her to be charged for ‘lying’ and destroying Evans’ reputation. At the other end of the spectrum, women’s rights groups have expressed dismay at what they see as a retrial setting a ‘dangerous precedent’, because parts of the woman’s sexual history were analysed during the proceedings. The fear is that future victims of sexual assault or worse will be scared out of reporting the crimes for fear of being publicly shamed in court.
Both groups are categorically wrong, however. An excellent, detailed analysis of the verdict is available here, and I strongly recommend reading it, but for now I want to address what is wrong with the arguments above.
Firstly, those arguing that the woman should be charged with perjury or slander do not understand the nature of her complaint. She has never accused Evans of rape. She woke up the morning after the alleged attack in a hotel room rented out to Evans, and she had no memory of what had happened the previous night. Worried that her drinks might have been spiked, she was persuaded to report her concerns to the police, who traced the room to Evans. He confirmed that he and a friend had both had sex with the woman in the hotel room during the evening in question, but insisted that the intercourse had been consensual. The police concluded that for the woman to have no memory of the encounter, she must have been too drunk to have given consent, and charged Evans with rape. That was the charge of the Crown Prosecution Service, not of the woman herself, and therefore there is no question of her lying or slandering Evans.
As for those who argue that the examination of the woman’s sexual history sets ‘a precedent’, that is not really true. The submission of the information about her past was very limited and, whether we agree with the spirit of the law or not, it was within the law as is already established. The law barring submissions of such information is Section 41 of the Youth Justice and Criminal Evidence Act 1999. Exceptions to that bar were already in place for seventeen years before the Evans case was retried, and the decision of the court to allow the submissions was in accordance with them. The law states as follows; –
…where the evidence relates to the issue of consent, and is of sexual behaviour of the complainant which is “so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused…that the similarity cannot reasonably be described as a coincidence”.
I want to stress that I do not like this exception to the rule, and I would prefer if any alleged victim’s sexual history was left out of proceedings altogether. (After all, the sexual history of an alleged attacker is never allowed to be aired.) But for better or worse, the exception is there, the Evans retrial was in accord with it, and it does not set a precedent. The same protections an alleged rape victim had in court last week will still be in place next week.
More importantly, the reasons for allowing information to be submitted are nothing to do with medievalist attempts to sway the jury by ‘slut-shaming’ the woman’s reputation. The analysis of the woman’s history was not assessing how regularly she had sex, which was not really implied to be relevant. Instead, it was examining two specific previous encounters the woman had had, and noticing a very strong resemblance to Evans’ testimony that, if it were a rape, is difficult to explain. It was coincidence that was what caused the exception, not alleged promiscuity.
Two previous partners of the woman gave descriptions of sexual acts with her that are almost identical to Evans’ account. In itself, you might say, “So what?” But, as best we can tell, Evans has never had any prior contact with either of these men, so this does raise a plausibility question. It is not on the subject of the woman being ‘promiscuous’, which is neither proven nor relevant, but on a strange element of coincidence; –
If we think Evans is lying, then we must make one of two assumptions. Either, one, we must assume that he embroidered his account to match those of other people who had slept with the same woman. The problem with that assumption is of course, how could he possibly have known what their accounts were if he does not appear to have ever met either of them? Or, two, we must assume that Evans just made the whole story up off the top of his head, and it ‘just happened’ to be almost identical to what several other men genuinely experienced with the same woman, to a level of quite intricate detail?
Quite honestly, that would be quite a coincidence.
Now, for what my view is worth, I do not accept that Evans should have been acquitted. I do not have any real doubt that he did rape the woman, and that is due to his own testimony. He has openly admitted that he did not speak to the woman at any stage in the encounter – before, during or after. This means he did not seek her consent. He also later left the hotel via the fire escape to avoid the security cameras, which is a clear sign of a man who knows he has done something wrong and is trying to cover his tracks.
The measure of ‘consent’ was that, after Evans penetrated the woman from behind, she supposedly said during intercourse, “F*ck me harder”. (This part of Evans’ testimony is what matches the new witnesses’ recollections of their own encounters with the woman.)
There are several problems with this reasoning, which is why I do not believe Evans should have been acquitted. One, the alleged request by the woman is clearly one that she would only make after penetration. Beforehand, why would she give an instruction to do something more intensely when it is not being done at all? Even if we can accept this as an expression of eventual consent, it was not prior consent, and therefore at least the initial sexual contact would still have been non-consensual and therefore rape. Two, there was another man in the room, and as the woman was so drunk, she may not even have realised which one she was having sex with.
As for the resemblance between Evans’ account and those of the woman’s two previous partners, it might well just be a coincidence. It might be due to some degree of witness-collusion. It might be that the woman changed her mind during intercourse and decided she wanted it to continue, when she would have been too drunk to be able to make such a decision with a clear mind. While the question of coincidence is worth raising, on its own it really should not raise enough of a doubt, to my mind, to get Evans off the hook, because his testimony of what happened is still very strongly interpretable as rape.
Those who claim that Evans’ name has been comprehensively cleared by the retrial are quite wrong. The Not Guilty verdict is not saying that these new testimonies establish Evans’ innocence, or that no rape occurred. All it says, rightly or wrongly, is that the rape has not been proven sufficiently beyond doubt for a conviction to be safe, nothing more. The new testimonies raised enough of a question-mark in the jury’s eyes that their decision not to re-convict is understandable, even if we do not agree with it.
So yes, I think Evans has managed to get away with it. But what this whole sorry chapter should tell all men, if only more of us were prepared to listen instead of deafening ourselves with misogynistic battle-cries, is that sexual aggression has a high price. Even though he did not serve the prison sentence he should have, Evans has still spent some time behind bars, his reputation is in ruins, his football career looks like a permanent shipwreck, his relationship with his girlfriend (whom, rape or no rape, he undoubtedly cheated on) was damaged for a time, and he has spent years consumed with the stress of being a public figure on trial. I am not suggesting that he is “the real victim” or anything ridiculous like that, but even so, who would want to go through anything like that?
Whether you think it was actually rape or not, what Evans did was wrong. He took advantage of a woman who was clearly too intoxicated to give or withhold explicit consent. If she was not a willing participant, she could hardly have got that across to him, but he went ahead and had sex with her anyway.
Evans’ actions sum up what is wrong with the attitudes to sex of too many men. The worst of these attitudes is the old “Well-she-could-have-said-no” argument. It is fine, goes the argument, to proceed with having sex with a woman so long as she has not said no.
I would argue that if any man does not want to risk going through what Evans has put himself through, he needs to abandon that outlook. If she has not said no, it is possible that she is willing to have sex, but if she has also not said yes, the man should not just assume that she is.
I propose that what a lot of men need to learn to do is this; –
Instead of waiting for the woman to say no before stopping, the man should wait for her to say yes before starting.
Let the woman make her wishes explicit. If she does not make them explicit, do nothing. In Evans’ case, he had already penetrated the woman before she (allegedly) said anything at all. Her wishes were, at best, ambiguous, and as long as a woman’s wishes remain ambiguous, the man should not proceed. It does not matter how much she is smiling at him, how much she flirts with him, it certainly does not matter in the slightest how she is dressed; if she wants sex with him, she will make it explicit eventually, and until she does so, the man should just assume the default answer of no. It is that simple.
(Equally, even if the woman initially consents, but then changes her mind and says stop, the man has to stop, as the consent has been withdrawn.)
Anything else risks causing unspeakable trauma to the woman, and years of (deserved) misery for the man himself.
That is the true lesson of the Ched Evans story, it is a very obvious and clear lesson, and only when male culture has learned it will the horrors of sexual violence against women come to an end.