Ched Evans, David Walsh and intoxication in cases of rape

Friends on social media have described David Walsh’s Sunday Times article on the Ched Evans rape case as ‘horrific’ and ‘egregious’. I’ve read the legal summary of the case and Walsh’s article and had the following thoughts.

Ched Evans picture

I first explain why I think Walsh’s article requires a qualified defence (I’m sticking my neck out here, but hear me out), and then I discuss the challenges created by drunken consent in rape cases. Before that, three disclaimers.

Disclaimer #1: I’d encourage anyone interested in this case to first read the summary on CrimeLine – and then Walsh’s article (it’s behind a Sunday Times paywall, here) for themselves. The case against Evans is complex and the details are important. Media caricatures of Evans and simplifications of the case are not helpful.

Disclaimer #2: The aim of this article is to draw attention to the difficulties in prosecuting rape cases and legal problems arising from the very grey area of drunken consent.

Disclaimer #3: So long as Evans is a convicted rapist, he should not be playing professional football, even if he has served his time, because he’s an appalling role model for young men. But my post isn’t about that.

Turning to Walsh’s article. What’s wrong with it? I see five major criticisms. If I’ve missed any, feel free to say in the comments.

1. Walsh regularly refers to how much the woman had had to drink.

Focussing on how drunk a woman was prior to being raped is a tell-tale sign of victim blaming. Yet in this case the extent of the woman’s drunkenness is in fact the key legal question. The jury convicted Evans of rape on the grounds that the woman was too intoxicated to be able to consent. Not that she said ‘No’ to sex with Evans. That she may have said ‘Yes’ but that consent was not meaningful consent because she was too drunk. (More on this issue at the end of the post.)

Walsh weaves into his narrative various facts about how drunk the woman was relative to other occasions. I agree that it is clumsy and the fact that she was less drunk than on other occasions does not logically entail she was capable of consent on this occasion, but I don’t think it’s egregious journalism. Walsh is trying to argue that the jury got it wrong when it considered the woman to be too drunk to consent, and he’s using these facts in an attempt to show that.

2. Walsh is arguing for Evans’ innocence despite the fact Evans has been convicted and his appeal has been turned down.

Critics of Walsh, like Tim Squirrell above, an ex-President of the Cambridge Union, are correct to say that you very rarely find those accused of other crimes (such as murder or theft), being defended after conviction and appeal. The Evans’ case, however, is being reviewed by the Criminal Cases Review Commission, a body charged with investigating possible miscarriages of justice. Given this, I think it’s legitimate for a journalist to look again at the facts of the case and give their opinion.

3. Walsh uses ‘complainant’ instead of ‘victim’.

Two things to note. First, the CrimeLine legal summary tagged above uses ‘complainant’ and this is after the conviction has been made. Legal professionals are using this term during the appeal process. And given that the case is once again under review for a potential miscarriage of justice, I think it’s legitimate to use the term ‘complainant’, for it recognises that the actual commission of a crime is once again under consideration.

Second, Walsh’s position is that the jury’s decision was unsafe and hence no crime has been committed. It would be odd for him to use the term ‘victim’ in the article when the definition of a victim is ‘someone against whom a crime has been committed’, the very thing he argues is untrue.

4. Walsh tries to paint Evans as the victim by drawing attention to things such as (a) how many goals he scored prior to being convicted, (b) what he did whilst in prison, (c) the testimonies of his closest friends and family, (d) how Sheffield United wanted to take him back but fans kicked up a fuss. All aim to cast Evans in a rosy light.

Is it wrong for Walsh to do this? The aim of his piece is to persuade: he wants the reader to agree with him that Evans did not in fact commit a crime. He is using this character-based information to that end.

In my view, this is just bad journalism, and is the worst part of the article. Evans’ background has absolutely zero relevance to the legal question of whether or not the woman in question consented to sex. On this issue I firmly agree with Walsh’s critics.

5. Walsh fails to mention the abuse the woman in question has suffered, abuse that has led to her having to change her name 5 times and emigrate.

This is true. Walsh’s failure to include such information (at the very least in the piece’s introduction) is a failure of empathy and humanity.

Such abuse, however, equally has no bearing on the facts of the legal case and whether or not Evans committed an act of rape. A clear-eyed view of the legal issue would overlook subsequent abuses suffered by both the ‘complainant’ and the ‘accused’.

Tim is absolutely right to say in this excellent blog piece that social conceptions of what is required for ‘rape’ are extremely ignorant and harmful. There doesn’t need to be a struggle. The perpetrator doesn’t need to be aware that what they’re doing is rape. Consent must be informed to be meaningful.

The real complexity in this case lies in the legal principle that drunken consent can still be consent.

In directing the jury, the judge said: ‘In a state of dim and drunken awareness you may, or may not, be in a condition to make choices.’

That’s to say, the degree of drunkenness matters. At one point of relatively moderate drunkenness you are considered by law as capable of giving meaningful consent. Beyond a certain point it’s not meaningful consent, even if you are enthusiastically saying ‘Yes’ to sex.

Given this, the judge continued:

‘So you will need to consider the evidence of the complainant’s state and decide these two questions: was she in a condition in which she was capable of making any choice one way or another? If you are sure that she was not, then she did not consent. If, on the other hand, you conclude that she chose to agree to sexual intercourse, or may have done, then you must find the defendants not guilty’ (my emphasis added).

The jury came to the conclusion that it was sure (or, it was at least true beyond reasonable doubt) that the woman in question was so drunk that her consent had become meaningless.

I think this is where the case for the potential miscarriage of justice lies. The charge of Evans’ lawyers is that, based on the evidence concerning intoxication put before the court, the jury could not have known beyond reasonable doubt that she was too drunk to provide meaningful consent.

(Pointing to the fact that the woman had no memory of the night before should not be considered sufficient to indicate that no consent was given – decision-making processes are separate from memory loss.)

It is because of all this that Evans’ conviction may well get overturned and Walsh may end up looking vindicated. If the conviction is overturned, I will understand why. It’s just depressingly difficult to gather sufficient evidence to accurately prosecute a rape case, whether or not a rape occurred.