The answer, of course, is that rape is so transcendently vile that it can never be forgiven. Yes, he has served his time in prison, Yes, he will (I presume) be on the sex offenders register for life. But in the court of public opinion that is not enough. Jessica Ennis et al, and, I suspect, the majority of the public, insist that he be punished further by loss of his livelihood. That the judicial courts of the land have already ruled on the matter cuts little ice with these people: these millions of people who are without sin and are happy to cast their stones.
In the case of David Cameron and Nick Clegg, does this not constitute political interference in the judicial process?
Let me make this absolutely clear. I do not condone the behaviour of Ched Evans and Clayton McDonald. It was undeniably sleazy. The sleaze was worsened by, amongst other things, the fact that Jack Higgins, an “associate” of the footballers, and Ryan Roberts, Evans’ brother, watched through a window and attempted to video the sex. There is also the fact that, in his summing up when pronouncing Evans guilty, the judge said that CCTV footage showed, in his opinion, the extent of the woman’s intoxication when she “stumbled into” Clayton McDonald. By my own personal standards (and I am rather a prude who does not approve of casual sex) there is no doubt that the behaviour of the men was reprehensible.
But that is not the point. The point is whether Evans committed an act so surpassingly vile that the public is justified in wanting to see him utterly destroyed even after he has served his judicially determined punishment. In other words, just how bad was what he did?
I can only judge the events from newspaper reports. With that proviso, the case appears to have been as follows, firstly the woman’s account,
She woke up naked and “confused” in a double bed. She could not remember what happened and feared her drinks were spiked. The woman, who was 19 at the time of the alleged attack, described drinking four double vodkas and lemonade and a shot of Sambucca at Rhyl’s Zu Bar in May 2011. She told police: “I felt tipsy but not out of control. I usually drink more than that. I haven’t blacked out before, not being able to remember anything.” She denied taking drugs on the night of the alleged attack. She said she did not remember leaving, but had a “vague recollection of being in a kebab shop”. She said she had tried to grab a piece of a man’s pizza, adding: “It’s just a blur. I just remember being there and eating a pizza.”
Be aware that the above account refers to the time before the woman met McDonald, and later Evans. Consequently, if her drinks were spiked, it was not them who did it. However, during cross-examination the woman agreed she had drunk two-thirds of a bottle of wine as well as the other alcohol that night. So her subsequent memory loss could simply be due to alcohol. Her testimony continued,
She said she could not remember getting in a taxi with Mr McDonald and asking where he was going. Mr Morgan, the defendant’s barrister, said the footballer told her he was going to the hotel and she said she was going with him. The barrister continued, addressing the woman, “You each took your clothes off and he began having sex with you. Do you remember?”
She replied: “No.”
Barrister: “You were happy for this sex to go on weren’t you?”
Woman: “I don’t remember.”
When the barrister suggested she agreed to Mr Evans getting involved when he entered the room, she said: “I don’t remember.”
Barrister: “You say you had no recollection as to what happened in the street, the taxi or hotel room?”
Barrister: “Is that actually correct or is it you woke up and knew what had happened and were embarrassed about it?”
Barrister: “Whatever you had to drink that night and whatever the effect of any other substance, you went willingly to the Premier Inn with Mr McDonald?”
Reply: “I don’t remember.”
Mr Fish: “I suggest you had sexual intercourse with both men in that room willingly.”
Reply: “I don’t remember.”
Mr Fish: “You gave no indication to either man you didn’t want to have sex.”
Reply: “I don’t remember.”
I have laboured this “testimony” to emphasise this one thing: that the woman’s entire testimony was that she remembered nothing. Now let’s look at the men’s testimony, first Mr McDonald’s,
Both men said they had consensual sex. Mr McDonald told police the girl was not “slurring her words and falling all over the place”. Mr McDonald said he met the complainant at the end of the night out, in the early hours as the footballers were standing with friends near a takeaway. A fight broke out among other revellers and Mr McDonald said he decided to move away from the disturbance. “I was looking to get a taxi, I just wanted to go home,” he told police. He said he was “tipsy” after the night out but “knew what he was doing”. He “bumped into” the woman on a corner and asked her where she was going, to which she replied: “Where are you going?” He said he told her he was going back to his hotel and she responded: “I’m going with you.”
He added: “She wasn’t slurring her words and falling all over the place. If that had been the case I would have got into the taxi by myself.” When they arrived at the hotel, they walked “arm in arm” to a ground-floor room. The jury heard how they sat on the bed and “she grabbed me and then I grabbed her. It just happened”. He said the woman initiated the sexual contact. Mr McDonald said she was saying sexually explicit things to him, adding: “So to me that was her telling me she knew what she wanted.” Asked how drunk she appeared to be, Mr McDonald said: “She was about the same as me, in control of her actions.”
Mr McDonald said: “Then Ched came into the room and said, ‘Can I get involved?’. I looked at her and all she said was ‘Yes’.” Mr McDonald said that the complainant was able to consent to sexual intercourse with both men and “was enjoying herself”.
Evan’s testimony was essentially this,
After he, Evans, turned up at the hotel room, he said that the girl asked him to perform oral sex on her, which he did. Evans then had sex with the girl, whom he claimed was enjoying herself. A hotel porter said there was no sound of distress or cause for alarm.
Commenting on the unsafe nature of the verdicts in the case, Allison Pearson in The Telegraph questioned why McDonald was found not guilt but Evans was found guilty. “Was she sober and consenting when McDonald was having sex with her, but drunk and not consenting when Evans did?” She goes on to make the following remark, “After the attack, the girl is alleged to have sent tweets boasting of ‘when I win big’.”
I repeat, I do not condone the men’s sleazy, disreputable and disrespectful behaviour. I also repeat: that is not the point. The question is: was justice actually done, and if so was Evans’ crime so monstrous that he must be utterly destroyed beyond mere punishment in law?
One very noteworthy feature is that the only testimony given was from the men. The woman remembered nothing. You might reasonably ask, therefore, who was suggesting that she was not consenting? It was not her, so who was it? The answer is “no one”. The court’s position was that, since she was inebriated, she was not capable of giving consent. Anything she might or might not have said is irrelevant. At this point it is worth explaining just how rape is viewed in English law.
Rape is defined by section 1 of the Sexual Offences Act 2003: A person (A) commits the offence of rape if, (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents. Note that, in English law, rape is a crime carried out with a penis. Consequently women cannot rape, by definition in English law. Note that no element of force is required in the definition of rape, the matter hinges upon consent.
The definition continues, “Whether a belief (of consent) is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.” This wording (which is relatively new to the definition) is extremely significant. It means that if the woman makes absolutely no outward sign of discontent whatsoever, the man can still be guilty of rape for failing to pro-actively obtain evidence of consent. The burden of responsibility is shifted entirely to the man.
In addition to the letter of the law, the UK Crown Prosecution Service has offered the following advice as regards its interpretation,
“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.”
“Prosecutors and investigators should consider whether supporting evidence is available to demonstrate that the complainant was so intoxicated that she had lost her 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 view of the advice that, “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” it follows that the case hinges entirely upon the woman’s exact degree of inebriation. Consequently, the fact that McDonald was acquitted but Evans was found guilty appears completely insupportable. Moreover, the exact degree of inebriation required to turn sex into rape is entirely unclear.
At this point it is worth emphasising how intrinsically sexist is the rape law. Suppose a man voluntarily becomes inebriated and then does something that he would not have done sober, perhaps something criminal. Does his inebriation exonerate him? The answer is emphatically “no”. He must be held accountable for his actions. If he has foolishly rendered himself into a condition in which his normal decent behaviour has been undermined, that is his own fault. He deserves punishment.
But now consider the position of a woman in a case where the charge of rape depends entirely on her inebriation, as here. Does the law hold the woman accountable as it does a man? It does not. The rape law relieves the woman of all responsibility, declaring her to be entirely passive and incapable of consent solely by virtue of her inebriation. Even if she appears to be a willing, indeed enthusiastic, partner in sex, the rape law insists that she is to be regarded as an infant, incapable of consent, by virtue of her inebriation.
In contrast, the man, who may be in the same degree of inebriation, is held, not only to be fully accountable for his actions, but also to be responsible for judging to a nicety the exact degree of inebriation of the woman. The man has a responsibility in law to protect the woman from herself even while he is equally drunk.
In other words, the rape law is gender biased. If men and women were treated equally, then rape would not be deemed to occur if both were equally drunk and both were ostensibly consenting. Either they would both be held responsible for their actions, or neither would be held responsible. But the law is biased. In such a situation the law renders the woman a victim and the man a criminal simply by definition, based on a principle of inequality.
Evans was convicted under an unjust law. But according to the sanctimonious hordes, he was not only guilty but committed a crime so heinous that he must be cast into outermost darkness forever. Mere prison and universal vilification are not punishment enough.
Why do so many people hold this view? In the case of men it is because they are terrified of being themselves accused by the feminist lobby, accused of being a rape apologist or some such thing. To fail to condemn anyone with the whiff of rape about them would be instant professional suicide for any politician. Politicians of all persuasions are obliged to kowtow to the feminist lobby, so powerful are they. As for why some women (not all) hold this view I cannot say. I suspect it is a profound rejection of equality. They have been schooled by feminism to believe that equality consists entirely of benefits, equal rights and opportunities, but not of the downside, the concomitant responsibilities.
But the horror that is the rape law does not stop there. The Crown Prosecution Service advice includes the following killer blow as regards consent,
“The Act imposes an evidential burden on the defendant to adduce sufficient evidence that the complainant consented.”
So, men are supposed to obtain evidence that the woman has consented prior to penetrative sex. Failure to do so means that the sex is in fact rape. It is only necessary for the woman to regard it as such. Gentleman, have you ever obtained evidence of consent? A signed contract, for example, or a video of the event including verbal (and enthusiastic) agreement by the woman? No? Then you are a rapist, my friend, And not only once, but hundreds or thousands of times. Incredible though it seems, this is truly how the law stands. All women carry a loaded gun with which they can destroy a man who is so careless as to have sex with them.
We have been hearing a great deal recently about sex and relationship education in schools. I think it would be a jolly good thing if boys were told clearly just where they stand in law if they have sex. The feminists have told us previously that all sex is rape, now they have made it true.
I close on a quote from Paul Nathanson and Katherine Young, “Legalising Misandry: From Public Shame to Systemic Discrimination against Men”, McGill-Queen’s university press, 2006,
“Ewanchuk exposed a problem of profound importance – one that goes far beyond rape cases that come up in court. If implied consent is so difficult to argue in court, why would any man have sexual relations with any woman in any circumstances without written proof of her consent? Even that would be legally irrelevant. A woman could change her mind in the few minutes or seconds between signing a consent form and engaging in sexual activity. And “no”, of course, means “no”. Perhaps unintentionally, this doctrine severely erodes the kind of trust that is necessary for healthy sexual relations. We would have said “destroys” except for the fact that most men and women, ignorant of the law, continue to copulate on the basis of trust that has no legal standing whatsoever.”
Note added October 2016: Evan’s conviction was quashed in April 2016 and at a re-trial in October 2016 he was cleared of the charge. Evan’s now plays for League One side Chesterfield.