There are 3 elements that make up the crime of rape:-
1) There was sex
2) The victim did not consent
3) The accused knew [u]or[/u] ought to have known that the victim did not consent.
(I'm paraphrasing a bit, but that's the gist of it).
Evans got convicted first time round because the jury were satisfied that the third element had been proved in his case.
His mate was acquitted because the jury were not satisfied that that element was proven in his case.
Which was a question earlier on in the thread I think.
Evans got convicted first time round because the jury were satisfied that the third element had been proved in his case.His mate was acquitted because the jury were not satisfied that that element was proven in his case.
Note that it was two different juries...............
No they were jointly accused of it so the same trial
R v Evans and McDonald was the criminal prosecution of two footballers, Ched Evans and Clayton McDonald, who were jointly accused of the rape of a woman
https://en.wikipedia.org/wiki/R_v_Evans#cite_note-bbc_sentence-1
I struggle to see how she could be sober enough to contend with one and not sober enough to consent with another
Crankboy - iirc- tried to explain how this could happen last thread but it makes no obvious sense to me
I struggle to see how she could be sober enough to contend with one and not sober enough to consent with another
I haven't bothered to check this, but didn't she meet Clayton McDonald in a kebab shop and agree to go back to the hotel with him.
McDonald invited Evans to the hotel afterwards.
Hence there was an initial contact with McDonald that Evans wasn't involved in.
I think the time difference is why she could consent to the earlier sex (with McDonald) but not to the sex with Evans, coupled with the fact that blood alcohol content continues to rise after you stop drinking.
The analogy I always think of in this case is if you meet lovely Sheila in a bar, and she invites you back to a hotel for sex, you say yes, and the last thing you remember is having lovely intercourse with lovely Sheila. In the morning, you wake up next to 30 stone Betty. Sheila says "I invited Betty round later on, you seemed alright with it at the time". Would you be alright with it? If you wouldn't be fine with that happening, you must necessarily conclude that Ched Evans is guilty.
If you find that analogy too subtle, replace Betty with Barry.
She actually decided to go back to the hotel with McDonald, which, even if it isn't the gold standard of consent, would certainly get into the 'reasonable doubt' area. She was clearly unsteady on her feet on the CCTV produced in court, but made it into the hotel under her own steam.
Evans turned up afterwards so was party to none of the 'courting', for want of a better word. Whether she was still in the same state, or worse, and unable to give proper consent is the crux of the matter.
I struggle to see how she could be sober enough to contend with one and not sober enough to consent with another
It can be enough that if the jury conclude that the first accused did believe that she consented but the second accused did not believe that she consented, then one is not guilty and the other guilty. It is not only whether she consented or not, but also what is in the mind of each culprit.
My recollection is that they concluded she was too drink to properly consent to sex with either, but given the different circumstances, they were satisfied that McDonald believed she consented, but were not satisfied that Evans believed she consented.
There are a few erroneous assumptions being made here.
1. Being married doesn't mean you can't rape them.
2. You need a penis to rape someone. Any penetration can be rape.
Have you seen the video of her in the hotel - staggering , unable to walk and needing help to make it to the hotel room?
I get the argument but if I consent then become too drunk to consent then I am too drunk to consent- whether its with the original person or any other person. Who is doing the deed is neither here nor there I am too drunk to consent. PERIOD.
My view is simply that they both should have received the same outcome.
@greatape cheers that makes sense but they both argued she consented
You're right, if you're too drunk to consent you are too drunk to consent, and the second element of the crime is complete. But for the crime of rape you must also consider 'what is the accused thinking at the time?'
EDIT - I dare say they did, that would be one of several lines of defence. If that argument fails you move on to 'Well regardless, my client believed that she consented'.
If he is acquited on the new evidence I think he has every right to feel very agrieved, regardless of if hes a scumbag or not hes been publicly vilified, locked up, career ruined, earning potential massively reduced.
I'm struggling to see how the appeal judge can overrule the conviction based on the question of consent, given that surely this point was fundamental to the first trial. I'm thinking something else has come to light which casts serious doubt on the conviction.
Nico - Member
There are a few erroneous assumptions being made here.1. Being married doesn't mean you can't rape them.
2. You need a penis to rape someone. Any penetration can be rape.
I think you missed the subtlety of the joke that once married, the sex stops 😉 thus you never have to worry about getting consent again, because the situation isn't going to arise. Otherwise you're right, the law changed (thankfully) in 1991, prior to that in law at least marriage vows were seen as 'consent'.
On the second, no the subtlety is that only a man can commit rape. The women could get all "happy international women's day" (Deadpool reference) on the guy and it wouldn't be rape, it would be sexual assault.
Simple distilation of the law here:
I wonder if Jessica Ennis will apologise to him if he is found not guilty on his re-trial ?
I wonder if his supporters will apologise to the victim if he is convicted again
ITs rape, possibly with a false conviction, and it makes everyone passionate. Lets try to keep it dispassionate here and accept we all abhor rape and no one want the innocent incarcerated or the guilty set free.
@ greatape - last time we did this thread and I am sure the events are he turns up as the other is having sex and then has sex just afterwards
Given the lack of temporal difference between thw two acts of consent I just dont get it in this case
I appreciate the effort many have gone to help me get the nuances of the claim and I am slowly lumbering to clarity.
https://www.crimeline.info/case/r-v-ched-evans-chedwyn-evans
The complainant had no recollection of anything which took place after 3am. That extended to the fact that she and McDonald entered the hotel at 4.15am[they met at 4 am]. The night porter described her as "extremely drunk". That reinforced the Crown's case based on the evidence of witnesses and the CCTV footage before she had arrived at the hotel. While en route to the room the porter heard her say to McDonald "You're not going to leave me, are you?" They entered a bedroom in which various sexual acts took place and eventually they had sexual intercourse.
In the meantime, no doubt in answer to the message that he had received from McDonald[ i have got a bird or words to that effect], the applicant arrived at the same hotel with two other male friends. He persuaded the night porter to give him a key card to the room occupied by McDonald and the complainant. He said that he had booked the room for a friend who no longer needed it. The applicant entered the room. Sexual intercourse between McDonald and the complainant ceased. The applicant performed oral sex on the complainant and then had vaginal sex with her. While it was taking place the porter went to check what was happening. He waited outside the room for a while and concluded from the noises that he could hear within the room that a couple were having sexual intercourse. No other concerns were raised in his mind.
Still not really getting how she was both too drunk and yet not too drunk at the same time.
I think the time difference is why she could consent to the earlier sex (with McDonald) but not to the sex with Evans, coupled with the fact that blood alcohol content continues to rise after you stop drinking.
(Quoting myself) It turns out I was wrong in this as apparently the opinion of the court for the first conviction is that she was unable to consent to either of them.
It can be enough that if the jury conclude that the first accused did believe that she consented but the second accused did not believe that she consented, then one is not guilty and the other guilty
This seems to be the point of law that has led to the difference in the two verdicts. McDonald had reason to believe she had consented , even thought the court found she was unable to. Evans had no good reason to believe the same.
It doesn't have to be this... [i]Still not really getting how she was both too drunk and yet not too drunk at the same time[/i].... for the jury to reach the decisions they did. I've only skim read the link but don't see anything that suggests they thought that she consented to either.
Let's assume she was too drunk to consent to sex with either of them. If she is unable to consent there is no consent.
When McDonald has sex with her she does not consent but McDonald, due to the circumstances leading up to him having sex with her, reasonably believed she consented = not rape.
When Evans has sex with her she does not consent and Evans did not, due to the different circumstances leading up to him having sex with her, reasonably believe she consented = rape.
What's going on in the mind of each defendant is critical.
That's how they can reach different verdicts. Without knowing what the jury discussed, and we never will, that's theoretical, but that's how it can happen. Appreciate it's not very straightforward though.
We did this before and I'm too engrossed in a different trial to do this justice but the case is basically she was too drunk to give meaningfull consent to sex with either but scum bag number one with whom she had gone to the hotel hapilly could not be shown " not to have formed a reasonable belief that she did consent " but Evans who had tricked his way in to the room at a later point and just jumped on and did the deed with a parsletic girl he had never spoken to did not convince the jury that he may have had a reasonable belief in her consent in those circumstances. Given she was on the evidence too drunk to consent it was for Evans to raise reasonable belief in consent and the pros to make the jury sure that he didn't have that belief.
I can now say I have run a similar case to
Evans and my client was aquited the distinction being both suspects walked back with the girl and she in my view and the juries came on to both .I am intrigued as to the new evidence but we will have to wait to the retrial.
Yes but she was pissed out of her head for both and she argued she did not consent to either. I doubt she was ever fully capable of consent.Let's assume she was too drunk to consent to sex with either of them. If she is unable to consent there is no consent.When McDonald has sex with her she does not consent but McDonald, due to the circumstances leading up to him having sex with her, reasonably believed she consented = not rape
I get the point though she did go to a room with him so one can make a better case for her having consented - there was "opportunity to flee" if she was not consenting.
Evans is different I get that but I still think they both knew they were taking advantage of a drunk girl and they both thought "she was up for it " and I doubt she was capable of consenting with either.
Forgive the language in "" as I dont have time to re write is nicely.
I doubt she was capable of consenting with either.
She wasn't. Put the matter of whether she actually consented to one side.
she did go to a room with him so one can make a better case for [s]her having consented[/s] him believing that she consented
...and you're there.
Just cos I am up for it with you junkyard does not mean for a second I am up for it with your mates . is basically the point.
Have you seen the video of her in the hotel - staggering , unable to walk and needing help to make it to the hotel room?
???
Cheers all
Essentially then the issue is not whether she did or did not consent [she did not] but whether they could have reasonably thought she did consent.
The guy who met her and took here there could think she did because she came with him where as he could not because she did not come with him.
Cheers ninfan like the video - my memory is a bit hazy.
That's it, yeah
More likely, if she did consent whether she was capable of giving that consent or was too drunk to be capable of making the judgement. If the jury feel she wasn't capable of making that judgement then it's rape.
I still struggle that the law defends her for being too drunk to be capable of giving consent, yet it's the same thing that damns him (being too drunk to realise that she's too drunk to give consent)
I think his behaviour is well short of appropriate, but I'm still not sure it's 'rape' in it's rawest form. What crime it is - seems like rape is too blunt an instrument for these sorts of nuances.
On a recent evening out in Spain a meal out ended with singing in a bar and making my way back to the Albergué with a group of "pilgrims". One young lady, easy on the eye but very drunk was clearly intent on ending the evening with one of the males present (all at least twice her age). I politely declined, another declined but she ended up with making noise with a married man. Did she "consent"? Not on the some of the criteria on this thread.
So slip the argument round - lad goes to a police station and says I went back to girls houise last night. We were both ****ered and I woke up with her bumping and grinding on top of me.
This actually happened to my best mate at uni, except he didn't go to the police, he told us all the next day and we all had a proper laugh about it. Girl was pretty fit as well but still technically rape I guess since no prior consent.
This is a struggle / complexity with the law. If you (as have most of us I am sure) gone to bed when both are quite drunk you could be found guilty. I heard recently students at some American Universities are doing advised to get explicit consent for sex every time even with a repeat partner.
Once pulled a known (at university) feminist/social justice warrior type. Then next day she wanted me to go round to hers.
Went round for the bantz (because some posho tory friends thought it would be hilarious), with a consent form and a non-dislosure agreement.
She told me to **** off. To this day I still can't decide whether it was worth it.
This actually happened to my best mate at uni, except he didn't go to the police, he told us all the next day and we all had a proper laugh about it. Girl was pretty fit as well but still technically rape I guess since no prior consent.
It's not rape unless someone penetrated someone, so either your mate had to get bummed with a strap on or she had to digitally penetrate his mouth/ear/bum hole.
Great being a bloke isn't it - even if both of you were to drunk and you wake up with her ****ing you, oh no, not rape thats sexual assault. But you technically raped her.
Great being a bloke isn't it - even if both of you were to drunk and you wake up with her **** you, oh no, not rape thats sexual assault. But you technically raped her.
I guess the difference is is that most blokes would probably enjoy it, right, or even if they didn't, just chalk it up as a funny story to make your mates laugh down the pub. Different for a woman, fully understand that.
him believing that she consented
I still don't see how the jury could say beyond reasonable doubt he didn't believe she consented. The text from his mate plus the fact she was apparently up for it with a stranger (in his mind, even if we know different), plus I suspect many footballers experience more threesomes than you or I... All that could easily have added up to a sincere belief on his part she was up for it.
I'm deeply uncomfortable with the idea that you can be criminally responsible when you're off your head, but not consent to sex. If I shoot someone in the face when I'm pissed I don't expect to use that in my defence and in the same way if I give Graham Norton a blow job when I'm pissed that's my responsibility too. I really don't see why my responsibility for my actions ends when I let someone push something into me because I'm too pissed to consider the consequences.
Like everyone else I'm curious what this new evidence is...
I have a great deal of respect for the girl. She could have made life easier for herself by simply saying she consented or claiming she definitely didn't consent. Instead she's stuck to the truth that she doesn't remember, that's taken guts IMHO and the thugs threatening her should be serving at least as long as Evans did.
I guess the difference is is that most blokes would probably enjoy it, right, or even if they didn't, just chalk it up as a funny story to make your mates laugh down the pub. Different for a woman, fully understand that.
Never been butt ****ed by a 200lb fat chick in a drug fuelled haze then? 😈
When you do, get back to us and we'll chalk it up as a funny story that you actually enjoyed. 😆
Never been butt **** by a 200lb fat chick in a drug fuelled haze then?
I'm strangely aroused.
Some women like a bit of fictional fifty shades of grey rape.
Doesn't make it less wrong.
Its OK Tom, you've already convinced me. So, do you want to be the 200lb lady first or shall I?
Yawn.......
S&M is consensual, 50% (other ratio's are available if you're lucky) of the parties involved are masochists.
"I still don't see how the jury could say beyond reasonable doubt he didn't believe she consented " The extra factor the jury had that none of us have is they heard Ched tell his own story in his own words twice, first led through it by someone on his side and then challenged by someone exploring it's truth. The jury heard him and were sure he was lying or totally unreasonable in his beliefs.
To be fair if I tried to argue my mate sent me a text saying he was with a girl so I naturally assumed because I have got a nice job shed want to have sex with me so I just snuck round and jumped in , people would think my thought process was less than reasonable.
Depends really If he had shown he had done this sort of things numerous times before and it was fairly common practice/has happened in the football world then he may have a better argument.
His thought processes are indeed deeply flawed but the issue is whether he KNEW this not whether we think it- have i got that right actually?
Have I finally grasped it ?
Thanks again for the help, even my "opinions" are really questions though i seem to be finally getting it.
It's hard to comment on these cases without courting controversy, but when the case was originally heard I remember seeing CCTV footage of the girl at the hotel and she didn't appear to be as drunk as was believed, at least based on that footage. In addition were there not text messages from her to her friends in the days following saying that this was her chance to "get rich" or words to that effect by selling her story?
No doubting Evans is a sleazebag, and what really amazes me is there is no doubt he had sex with the girl, yet not only is his girlfriend sticking by him, but her rich father is bankrolling his appeal.
Yes that is weird
Rape or not I think i would struggle to stay friends with someone who did that
I cannot think why I would be supporting my son in law in this scenario either.
Another complicating factor is that juries can and have ignored/misunderstood the law in the past and the might have come to the right conclilusion for the wrong reasons or any other combination you care to name. For all we know a single powerful character on the jury took a dislike to Evans and convinced the others. So we can discuss how the jury should have decided this but we have no idea if they considered it that way.
As for standing by son in law, I would. Assuming his daughter is going to stick with him the best thing for his grandchildren and daughter is for Evans to not be guilty.
For all we know sober he might be a cracking guy.
