The acquittal last week of footballer Ched Evans at his retrial for rape has, if media reports and trigger-happy talking heads are to be believed, set a dangerous new precedent in cases of sexual violence.
“A disturbing precedent that could deter women from reporting attacks”, reported the Daily Mail. “A throwback to the 1980s” thundered the Guardian. Similar sentiments were expressed by former solicitor-general Vera Baird Q.C., who solemnly advised BBC Radio 4’s Today programme, “This has set us back 30 years”.
The source of concern was the ruling, which lay at the heart of the Court of Appeal’s decision to quash Evans’ original conviction, that the complainant, X, could be cross-examined, and evidence could be called, about previous sexual activity that was alleged to have occurred with two separate males in the period before and after the alleged rape.
The bare facts of the case are well-rehearsed, and set out in more detail in the Court of Appeal’s judgment In short, on 29 May 2011, Evans and his co-accused, Clayton McDonald, had sex with X, in a hotel room. McDonald had met X on a night out, taken her back to the room, and had texted Evans, who promptly made his way to the room and, seeing McDonald and X having intercourse, joined in. X woke up the following morning, professing to have no memory at what had taken place. Both men admitted that they had had sex with X, and were charged with rape, on the basis that X was too drunk to consent, and that neither man reasonably believed that she was consenting. Both men asserted that they reasonably believed that the complainant was an enthusiastic and consenting party. At the first trial, McDonald was acquitted. Evans was convicted and sentenced to five years’ imprisonment.
So how on earth does a complainant’s previous sexual behaviour come into it? In general, the answer is that it does not. Section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits questioning a complainant in a sex case about their sex life. The purpose, sensibly, is to destroy the myth that “unchaste women are more likely to consent to intercourse and are in any event less worth of belief”.
Section 41 then sets out limited exceptions to this rule, which may be engaged where “a refusal [to allow the questions or evidence] might render unsafe a conclusion of the jury on any relevant issue in the case”. Section 41(3) provides that, where a relevant issue is consent, one of the limited exceptions for allowing evidence of sexual history is where the previous sexual behavior is relevant and “so similar” to the complainant’s behaviour during the event, that “the similarity cannot reasonably be explained as coincidence.” This, the Court has said, presents a “high hurdle of relevance and similarity” for the defence to clear in order to succeed in an application. There is a further condition that no evidence can be admitted where the purpose of so doing is to impugn the credibility of the complainant. Put loosely, the section is designed to prevent sexual history being used to embarrass, discredit or plant nasty seeds in the minds of the jury to evoke ugly, olden day mores about sexual promiscuity.
In Evans’ case, it was said that the exception in section 41(3) was met, due to the emergence of fresh evidence. This came primarily in the form of two witnesses, S and O, each of whom said that he had slept with X around May 2011, and that she had instructed him to have sex with her “doggie style” and had urged him to have sex with her “harder”. Relevance? Well, when interviewed by police in 2011, Evans told them that X had performed oral sex on him, before adopting a position on all fours and instructing him to “fuck me harder”. This, the defence said, was relevant to the issue of consent – if Evans was right, it would support his assertion that X was a capable and consenting participant. If would further bolster the reasonableness of his belief that she was consenting. The fact that X had used this similar behavior – the sexual position and the words — on two other occasions made it more likely that Evans was truthful when he said it happened with him, and was therefore relevant to supporting this aspect of his defence. It is important to understand this reasoning – it is not to suggest that “X slept with S and O consensually, therefore she consented with Evans”. That is not the reasoning at play, and the jury at the retrial would have been directed as such.
What qualifies as “similar behaviour”? Well, the test for “similarity” has been established by earlier case law as not requiring that the conduct be “rare” or “bizarre”, merely that it “go beyond the realm of what could reasonably be explained as a coincidence”. The combined effect of X’s words and actions were said by the defence to clear that bar.
When this was argued in the Court of Appeal, the prosecution disagreed with the defence analysis, submitting that, even if the new witnesses were to be believed, there was insufficient “similarity”. What X said and did was fairly unremarkable.
This, to me, is an arguable point. To borrow from a legal colleague’s tweet, the sexual position adopted and words used are almost a modern “porn trope”, and are far more common nowadays perhaps than in the youth of the Court of Appeal judiciary. Beyond coincidence, or verging on the threshold? I don’t think it’s easy to assert either way. However, even if the Court of Appeal’s finely-balanced judgment was wrong in this case – and it is always a difficult exercise balancing the rights of complainants against the rights of the accused – it is, in my view, a leap to suggest that this has established a precedent, or loosened the strictures of section 41.
In accepting the defence argument “with a considerable degree of hesitation”, the Court of Appeal emphasised that this was an unusual case, and that it would be rare for it to be “appropriate to indulge in this kind of forensic examination of sexual behavior with others”. This explodes the “dangerous precedent” narrative. Prosecution advocates in Crown Courts across the land will draw judges’ attentions to these remarks should defence advocates try to rely upon Evans as establishing any new point of principle. Section 41 will continue to be applied strictly, and the real danger, to me, is the deterrent effect of media misreporting and scare stories on present and future victims. This decision does not herald open season on complainants in sex cases. Indeed, comfort for those seeking it can be found in the margins of the Court of Appeal judgment: O initially gave a statement for Evans’ first appeal in 2013, in which O said that he had had sex with X, and that he “couldn’t understand why X would sleep with someone so soon after a rape”. “S” gave a statement to the defence designed to show that X had slept with him just after meeting him. This evidence was wisely not relied upon by the defence, as it would have been exactly the type of nudge and wink to inadmissible, myth-reinforcing irrelevance that section 41 was designed to prohibit.
Certainly, there are other elements to the case that to an outsider could appear unsavoury, particularly relating to how these new witnesses emerged, and what they already knew about the case at the time they gave their statements. The £50,000 “reward” put up by Evans for fresh evidence is troubling. Questions to be asked, certainly, but questions that were asked, in the Court of Appeal and before the jury. All the “what-ifs” advanced by commentators who were not in court for the full trial were almost certainly litigated in front of the jury. They were certainly not litigated in front of Twitter.
My personal preference would be that little more is said about this case in the media. It is an unpleasant affair on a number of levels, with little to be usefully learned by reheating online. If it must be examined, I would plead that this be the take-home: a decision to allow evidence of sexual behaviour is rare. That is the message that we should be repeating, loud and clear. Whatever happened in this unusual case is unlikely to have any wider application; certainly there is nothing that suggests the Court intends to widen the scope of section 41. Victims should not be scared to come forward on the basis of what is being said, loudly and inaccurately, by those who should know better.