The Ched Evans case has prompted extremely polarised responses, many of which gloss over the genuine difficulties and complexities in play. The young woman – X – was forced to move away from her home because of horrifying treatment from some of Ched Evans’ fans , and of course the new verdict has amplified this appalling abuse. Although her name cannot be revealed, this hasn’t prevented some from disclosing her identity on social media. Yet, as Secret Barrister points out in this useful post, a ‘not guilty’ verdict does not make her a liar.
The defence case was based not on the “usual” he said/ she said dispute over consent, but rather he said/ she can’t remember. There is absolutely no safe basis for suggesting she has lied, or, to quell the more hysterical calls, that she should be prosecuted on the basis of Evans’ acquittal.
While some are up in arms against X, others are furious that Ched Evans has now been found not guilty. Some of this fury has focused on the way X’s previous sexual encounters were brought up in court. People correctly feel that a woman’s past sexual history ought not to have a bearing on her credibility in such a case – it should not be implied that a sexually active woman should not or would not withhold consent.
A particular concern is that women who have been raped may be discouraged from going to the police if they think their sex life will be raked over in court. This is how Holly Baxter begins her comment piece in the Independent:
Suggesting that you can work out whether a woman was raped by speaking to her ex-boyfriends is tantamount to saying that there are certain women who are ‘asking for it’ so much by their very character that they cannot be raped
Although the fact Evans’ fiancee offered witnesses an ‘inducement’ seems a reasonable concern to raise, Baxter at no point explains the very specific reason why evidence about X’s previous sexual encounters was deemed admissible and relevant. It was not the case that it was used to demonstrate she was promiscuous and thus less credible. Secret Barrister is, again, helpful on this point. Briefly, parallels between X’s behaviour with Evans and with previous boyfriends make it more likely that Evans’ account was truthful, and that he was convinced she was capable of consent. It might go against the grain to go into this level of detail, but any evidence which could affect the outcome in such a serious case, prevent a miscarriage of justice, needs to be heard.
Just because it was legitimate to bring in this evidence doesn’t mean it mightn’t have the effect of putting some women off going to court. But reporting this issue in a misleading light – glossing over the very specific reasons why these earlier encounters could help make the case for Evans’ innocence – may increase this risk. Sandra Laville, writing in the Guardian, takes a similar line to Baxter. Laville does briefly touch on the precise reasons why this evidence was allowed, but her argument is summarised:
Woman was subjected to a grilling about her morality and sexual behaviour that was a throwback to the 1980s
Steven Morris offers a more nuanced critique of the decision, partly because he acknowledges more clearly the rationale for allowing this evidence in the first place.
Laws pointed out the sort of sexual activity the men described and the words the complainant was said to have used were commonplace.
During the appeal hearing, Laws claimed the delay in the men’s testimony bore all the hallmarks of witnesses being “fed” information by people close to Evans. In the retrial, prosecutor Simon Medland QC put to both of them that they had been motivated by the £50,000 reward. The allegations were strongly denied by Evans’ team and the men.
Laura Bates‘s article, by contrast, offers no legal context to explain why an exception was made in this case – instead describing it as ‘completely unrelated’.
A case in which former sexual partners of the woman were allowed to give evidence about her sexual history, suggesting that her consensual sexual appetite had some relevant bearing on a completely unrelated allegation of rape.
I do agree with Bates that the abuse, including threats of sexual violence, targeted at X after both trials was horrifying. For many of Ched Evans’ fans it made no difference that that he had (originally) been found guilty – she was seen as to blame.
What is particularly striking is how overwhelmingly similar the posts are to those that flooded social media during Evans’s first trial, and – crucially – after he had been found guilty.
However that point cuts both ways. Ched Evans has a hard core of pretty horrible supporters who didn’t hesitate to back him despite the initial guilty verdict. He also has many detractors whose opinions are equally unswerving and who are now as unconvinced by the fresh verdict as his fans were by the original result.
