A Deep Dive On A Footballer’s Overturned Rape Conviction
Simple narratives are unhelpful to both sexes. Ladies and Gentlemen, welcome to Evans vs Miss R
I’m going to try and keep this article as balanced as possible to talk us all through some of the legal complexities around a relatively recent rape case. In a knee-jerk and reactionary world where moral judgments are dispensed via Twitter and biases are triggered instantly it pays to do the occasional deep dive.
So stick with me until the bitter end and let’s see what we can learn about society and about ourselves.
The original case and general timeline
Ched Evans and Clayton McDonald were originally tried in April 2012 for something that happened the previous year. On May 29th 2011, Evans and McDonald both met Miss R on a night out. McDonald met and engaged the 19-year-old in conversation and sent a message to Evans telling him he’d ‘got a girl’.
Later in the night, McDonald and Evans both had sex with Miss R. She woke up the following morning with no memory of what had taken place. Both McDonald and Evans admitted having sexual intercourse with Miss R and were duly charged on the basis that Miss R was too drunk to consent and neither man held a reasonable belief that she was consenting.
They were arrested for sexual assault on the 30th of May 2011 and were subsequently charged with rape on the 26th July. The case went to court the following year. Both Evans and McDonald provided the defence that they believed the complainant consented enthusiastically.
At the first trial, McDonald was acquitted and Evans was found guilty. Evans was sentenced to five years in prison and his career as a top-flight footballer was effectively over. He appealed his conviction in November of the same year but his appeal was quashed.
At the time, the story was splashed all over social media and became an ideological football that was duly lobbed between feminists and the terminally misogynistic.
In 2012, 19 people were arrested and brought in for questioning about naming the victim on social media. Ten of those people were convicted and fined including Ched Evan’s first cousin.
A campaign was mounted to overturn the conviction and maintained the narrative that Evans was innocent and his conviction was wrongful. As a result, Miss R was forced to change her identity a number of times and live life as a fugitive.
Evans served half the five year sentence before being released on licence.
By the time he was released in October 2014, there was a mountain of signatures on a petition against his return to Sheffield United. On the 11th of November, he was offered a chance to train by the club, this sparked high profile political involvement by the deputy Prime Minister, a few high level resignations and what amounted to a full-on media shit-show.
By the 20th November, the offer was retracted. The same offer and retraction happened at first division Hartlepool and then later on by Oldham — both clubs coming under increasing pressure from their fans and sponsors alike. Evans stated that he withdrew from the deal due to “mob rule”, and that he was concerned the building of Oldham’s new stand would be adversely affected by his signing.
Evans apologised for any grievances he had caused due to his rape case, but continued to protest his innocence.
“it was people’s disgust that a convicted rapist felt he could swan back into a high-profile job after revealing no remorse for a crime that would preclude re-employment for many”…… “his statement of contrition … on the offensive, legally questionable website that continues to make life miserable for his victim”. (The Daily Telegraph)
In early 2015, Evans attempted to get a job with a Maltese football team but was barred from leaving the country as a registered sex offender. Then on Friday 23rd January 2015, Ched Evans submitted previously unavailable fresh evidence for the judge to consider.
On 22nd March 2016, the court of appeal heard the case and ordered a re-trial ordered for October. The blanket ban on reporting meant that the news that Evans had been found ‘not guilty’ at retrial came as a surprise to most of us. After the trial had concluded it was reported that the ‘fresh evidence’ used was related to Miss R’s sexual history.
This caused a fresh wave of controversy. Perhaps rightly, perhaps wrongly. We’ll get to that.
So Ched Evans is innocent?
No. Not necessarily. That’s not how the law works. The jury may have decided there wasn’t enough evidence to be absolutely certain of a conviction, because the burden of proof is beyond reasonable doubt. In the first case, the jury felt it was proved beyond reasonable doubt that Evans raped Miss R.
Some people were sceptical because Evans’ co-accused walked away without a conviction. How could the jury find one man innocent and the other one guilty? A relatively simple answer presents itself. Miss R met McDonald and accompanied him to his hotel room.
Evans showed up after the fact. Consenting to have sex with one man does not automatically grant any men in the vicinity the same consent. So whilst both men had sex with Miss R only Evans was convicted of rape. The innocence of one man does not automatically carry over.
Joint trial. Separate verdicts. It happens that way sometimes.
Subsequent evidence introduced to the court meant that a second jury didn’t reach the same conclusion. She may still have been raped, but the second jury were no longer certain beyond all reasonable doubt.
You mean she lied? No… again, this is where the simple narratives don’t help anyone. Binary thinking perpetuates the myth that there must be a ‘good person’ and a ‘bad person’ in every case. This is not always how real life plays out and I don’t think that’s what happened in this instance.
Miss R never accused Ched Evans of rape. What she reported was that she was unable to remember what happened — it is the Crown Prosecution Service that put forward the case she was raped. This is not the same thing.
In order for a rape conviction to stand, two separate legal arguments need to be made and the Crown Prosecution Service would’ve considered them both:
Firstly That Miss R was not consenting (ie: she lacked capacity because she was too drunk);
And secondly that Chad Evans did not reasonably believe Miss-R was consenting.
With that in mind. What changed in this case?
The evidence that was brought into the retrial was brought in under very specific legal circumstances and its inclusion was carefully considered by the Court of Appeal. The evidence was as follows:
- A man, Mr O, gave evidence that, a fortnight after 29 May 2011, he had been out drinking with Miss R. He had engaged in consensual sexual intercourse with her, during which she gave him clear instructions to penetrate her from behind and shouting, “Fuck me harder”.
- A second man, Mr-S, gave evidence that, on 28 May 2011, Miss-R had engaged him in a night of drunken sexual activity, in which she adopted the same sexual position and used words, “Go harder”
The inclusion of such evidence is controversial because it brings in matters of behaviour that are extraneous to the matter at hand. However, they are pertinent to the case.
The specific position and those words used by Miss R were what Evans reported when interviewed by the police. The evidence introduced corroborated his account and it was this fact that overturned the second part of the conviction.
If such a behaviour occurred it would be reasonable to believe that Miss R was consenting. This complicates things and it is why nuance is so important.
Do I believe she was lying about not remembering? No. I think she was telling the truth. I think she was very drunk. Do I think he lied about her enthusiastic consent? No. I don’t think he did. What you have is one person who believes they may have been raped because they can’t remember consenting and one person who believes enthusiastic consent was given.
Basically a good old fashioned mess, compounded by a complex legal situation and binary thinking from the public
Was it fair to include evidence of Miss R’s sex life?
The inclusion of this evidence was vehemently opposed by feminist groups. They posit it was a return to the days of besmirching the character of women in the courts. If she consented to sex with these men — she’s the sort of woman who consents to sex with ALL men, all the time.
A defence that has been applied far too frequently.
That’s why we have The Youth and Criminal Evidence Act (1999). This piece of law prohibits questions about a complainant’s previous sexual history be admissible in trial — with an exemption made under very specific circumstances in Section 41.
Evidence can be introduced to the court under section 41(3) when it is evidence that relates to the issue of consent and is of sexual behaviour of the complainant which is similar enough that it cannot reasonably be described as a coincidence.
In this instance, the actions of Miss R when in a consensual sexual encounter match so closely to the account given by Ched Evans that it could not reasonably be described as a coincidence. The defence made the argument that although she was drunk, she was still able to communicate in such a way that Ched Evans held the reasonable belief that she was consenting.
Even if she wasn’t and had no memory of the fact. And the jury agreed.
Ched Evans was acquitted. He sued his original defence team for £800,000 and has resumed his career as a footballer. Miss R still has lifelong anonymity and the case has largely faded from the British consciousness.
Except for the fact that more than a few lives got ruined in the process. Why? The public doesn’t do nuance.
So what are the takeaways here?
I think this particular case highlights specific failings in the British legal system and within the general attitude of the general public. Do I think Ched Evans is innocent or guilty? That’s not for me to decide, I wasn’t on the jury and I didn’t hear the evidence.
And that’s the wider point — neither did anyone else. Plenty of people waded in with petitions to defend or condemn a situation that required only the opinion of a jury.
Those people who accused Miss R of lying then named her on social media did so because they firmly believed she was lying. This may have been true, it also may not have been — but she wasn’t on trial, he was.
To name and shame her was immoral and fundamentally wrong at every level. This is the ugly face of misogyny — she was entitled to a fair trial and she got one.
But, I would also argue that the naming of Ched Evans isn’t what a functional, healthy society should do either. He was wrongly convicted and served a prison sentence for a crime he was later acquitted of. He became a social and public pariah not allowed to resume his career at the whim of people who were not fully informed about any of the salient points of the case.
This is what mob justice looks like and in the age of social media there are very important questions that need to be asked about whether this morally justifiable. Securing a conviction in the courts is necessary, securing a conviction in the court of public opinion is painfully easy.
Sex crimes and the cases pertaining to them are not a political hot potato for points-scoring in some sort of ongoing gender war. We must be very careful with how we deal with such things. A heavy-handed society that creates a furore in place of an investigation will lead to shaky prosecutions and to complex moral grey areas akin to the situation confronted by Caroline Flack.
In that instance she was very likely to be found guilty of what she was accused of, but the whole matter was handled appallingly by the CPS and the media. The latter of which was forced to do an about-turn when news of her mental health decline and eventual suicide broke.
The legal system is a blunt tool in which the actions of person X are judged against the repercussions on person Y. The general public is made up of sharp-tongued and often ill-informed people who have a vested interest in politicising cases one way or the other without understanding either the framework or the wider implications.
In this instance, there were increased calls for anonymity for both accusers and defendants by one side, and a call of ‘foul’ for the inclusion of previous sexual history by the other. Such arbitrary positioning will not bring about a safer future for humans of any gender.
My personal belief is that anonymity should be granted as a default to everyone in cases like this with the caveat that anonymity can be waived by a judge if they think there is enough merit to do so. These are crimes that need to be judged by a jury alone.
The legal system shouldn’t be casting a wide net via public appeal — to do so is to jeopardise the presumption of innocence in favour of expediency. It might make it easier — but that doesn’t make it right.
Once a conviction happens by all means release the names of those involved — but let’s be very careful about the broad brush strokes we’re using to paint people with on both sides. When I spoke about this article with my significant other, they said…. ‘oh, the rapist football guy’ — but that legally isn’t the case.
For most people, their interest wained when they felt the story stopped.
But as I hope I’ve demonstrated, the story didn’t stop there. It didn’t stop there for Miss R and it didn’t stop there for Ched Evans. It won’t stop there for either of them, because this isn’t just something that happened they can move on from. It can and will affect their lives in immeasurable ways.
Both of them. Not him. Not her. Both of them.
See… the Evans vs Miss R was always a much more complicated and nuanced story than the simple narratives which stoke the flames of Twitter. We must be better and that means reading more deeply and it means applying empathy and intelligent thinking across the board.
So here’s my final view on the case for what it’s worth. These two people entered a confusing and moral grey area in which alcohol and sex were unwisely combined. This caused a legal dispute in which a binary position of innocence or guilt needed to be determined.
The law is blunt like that.
I don’t think either of them is lying. I don’t think his innocence necessarily infers her to be guilty of fabrication. Nor do I subscribe to the notion that alleviating people of all personal responsibility at every cost is ‘victim blaming’.
What I definitely do think is that the judgmental and heavy-handed approach taken by a polarised general public made the entire situation worse for both parties.
Legislative change is necessary, the law must be better, but so must everyone else. The law is a blunt tool being incrementally sharpened as society progresses towards a more liberal and inclusive agenda — but we have to do our part too. Real lives cannot be used in lieu of a soap opera and real justice cannot be found in the echo chambers of social media.
Thanks for reading this far on a controversial topic. Keep the comments nuanced and respectful y’all. Penguin out.
I don’t write legal and crime pieces often but when I do, I very much enjoy them. Want to do another deep dive with a Penguin?
