This article contains discussion of the nature of rape and sexual consent, in enough detail that it could be upsetting to some.
In 2012 Ched Evans – a leading star for third tier English football team Sheffield United – was convicted of rape, and served two years in jail. On Friday, at a retrial his conviction was overturned.
When he was released from jail in 2014, there was several spikes of controversy as Evans pursued opportunities to relaunch his career. Jessica Ennis-Hill, one of Britain’s greatest modern Olympians, demanded that a stand named after her at Sheffield United’s Bramall Lane be renamed after the club entered talks to re-sign Evans. Hartlepool MP Iain Wright spoke out when Hartlepool United came close to signing Evans, and public pressure on club sponsors resulted in a move to Oldham Athletic falling through. Evans signed for third tier Chesterfield in the summer of 2016, and scored four goals in four games before being given time away from the club during his retrial.
As with the Brock Turner case, much of the coverage has centred around the wonderful career that was ahead of Evans had he not committed his crime – as if this had any relevance. If he had sex without consent, then it’s rape. If he received clear consent beforehand, then it isn’t.
The facts of the case are unpleasant. In Evans’ own words, he lied to get access to a hotel room where his friend Clayton McDonald and a woman were having sex (she’d never met Evans and had no reason to know he’d be there). McDonald then asked “can my mate join in”, to which the woman apparently said “yes”. But it’s not clear that the woman heard the question clearly or even knew he was there. Without being flippant, it is possible that she was expressing her enjoyment of what McDonald was doing.
One of the biggest arguments offered in Evans’ defence was that, during the original trial, McDonald had been cleared of rape while Evans was found guilty. The woman had met McDonald earlier that evening in a takeaway, where she drunkenly fell over repeatedly. She then went back to the hotel room with McDonald.
The woman had had an amount of human contact with McDonald, and clearly gave an inebriated form of consent by returning to the hotel room with him. It’s not clear – even from Evans’ testimony – that she knew Evans existed before he entered her.
In our minds, there is enough ambiguity over whether the woman consented to be with McDonald that we’d personally have given McDonald the benefit of the doubt, but consider the Crown Prosecution Service’s decision to press charges as legitimate.
Over the last few years, unconfirmed stories have emerged that the woman sent text messages the morning after the incident boasting about how she was going to use this to get some sort of financial settlement from Evans and McDonald. During the re-trial the woman’s ex-boyfriend testified that she enjoyed rough sex.
None of this matters. Let’s assume the worst interpretations of her character are true. Nasty women don’t deserve to be raped as some kind of pre-emptive punishment. Enjoying kinky sex should not be a rapeable offence. Regardless of whether the woman in the incident is nice or nasty, Ched Evans did not get clear consent from her before entering her. That makes what he did rape. If we’d been on the jury, we’d have convicted Evans based on his own testimony.
Last month, headlines were made when York University students encouraged a boycott of a consent talk. Ben Froughi, one of the boycott organisers, argued that
“Consent talks are patronising. If students really need lessons in how to say yes or no then they should not be at university.
‘There is no correct way to negotiate getting someone into bed with you. In suggesting that there is, consent talks encourage women to interpret sexual experiences that have not been preceded by a lengthy, formal and sober contractual discussion as rape.”
It could be argued that the fact that consent is so abstract makes discussions around consent all the more important. Perhaps the format was wrong, and York University should have hosted a discussion seminar rather than a lecture. Perhaps it would have been better for female students to talk about how over-eager men have made them feel pressurised and scared of the consequences of saying no (from friends’ anecdotes, this seems to be something every woman has experienced on a night out).
It’s important that universities or student unions do something to encourage responsible behaviour by young adults away from parental supervision for the first time. In this situation, a proportion of university students will do things which are self-destructive and unhealthy – it’s an unfortunate part of human nature. But York University was right to try and minimise the damage students can do during this process.
Vera Baird, former solicitor general and current Northumbria Police and Crime Commissioner has argued that in allowing the woman’s sexual history to be used against her, “We’ve gone back, I’m afraid, probably about 30 years.”
The ridicule and attacks poured on the woman’s reputation (she has been illegally named on social media several times) are an indication of why so many women are reluctant to come forward. In recent weeks the hashtag #WhyWomenDontReport has trended as an explanation of why accusations are surfacing against Donald Trump decades after they are alleged to have happened. In the case of Evans’ accuser, we’ve even seen multiple examples of people arguing that she should pay him compensation for lost earnings, or serve an equivalent amount of time to Evans.
Judging by the verdict in the retrial and the social media reaction to both cases, there is a poor understanding of what consent is. Evans effectively confessed to his crime in the midst of giving what he considered a legitimate defence, and the jury sided with him. Evans’ testimony was the equivalent of a defendant saying ‘I stabbed him through the heart repeatedly until he stopped breathing, but I didn’t murder him’.
Yes, the jury in the retrial found Evans not guilty. But the fact that they did so is, in our view, a terrifying indictment of our society’s lack of understanding of the nature of consent.