Why Ched Evans should be allowed back to work

by Ray_North on October 17, 2014

images-3I have stood up in the Courtroom in which Ched Evans was convicted and sentenced to imprisonment for rape, on many hundreds of occasions, and on many of those occasions, I have told a judge that my client accepts that he will lose his liberty for his crime, but understands that he must use his time in prison productively to rehabilitate himself, I will then, if I can, outline the changes that the defendant is making or has made to his life or intends to make to his life. It is a submission I make after asking my client – ‘where do you want to be in five years time?’ A question to which they almost always give me the same answer, regardless of whether they are charged with drug offences, violence, rape or dishonesty – ‘I want to put all this behind me and get on with my life.’

I’ll be honest with you, there are occasions when I am not entirely convinced that the person I am representing is truly motivated to rehabilitate themselves, or that they are able to rehabilitate themselves – but, nevertheless, the submission is an important one, because without the prospect of rehabilitation, without the challenge of ‘getting on with my life,’ the criminal justice system becomes dangerously worthless, because if we don’t rehabilitate or try to rehabilitate criminals they will offend again. In fact if we don’t want to rehabilitate, if we are not prepared to accept the principal that a criminal can reform him or herself – then we might as well lock people up forever, or worse.

If I had been representing Ched Evans, I would probably have made the same submission, I would have probably told the judge that one day, he hoped to get back to his place of work, and, unless, his place of work was somewhere where by virtue of his conviction he would have been lawfully barred from returning to, I would not have expected a Judge to respond by saying – ‘well he can’t go back to football, Mr North,’ indeed quite the opposite, most judges see a desire to get back to normality, a desire to get back to the workplace as a good sign, because criminals who want to return to the stability and productivity of work are less likely to re-offend again.

Ched Evans’ place of work is on the football pitch.

Many have castigated him for his failure to make any public declaration of remorse towards his victim – I understand their concern for his apparent lack of contrition, but, I would be wary of putting too much emphasis on that, firstly, because we don’t know what he has been saying in private to his probation officer and the various teachers and lecturers who will, I’m pretty certain, have been teaching him about sexual violence and crime during the many courses, that he will have had to attend during his time in prison; and secondly, because he denied the offence, and ran a trial, which is his right – the fact that the jury’s verdict was adverse to him, doesn’t mean that he is then obliged to suddenly accept something that he had previously denied (actually, as a criminal barrister, it really pisses me off, when, having defended someone, they say to me, minutes after the jury have returned a guilty verdict – well, fair play, I did do it – I see that as a personal failure).

If the Criminal Justice System and prison has done its job properly, then actually, Ched Evans will go back into his community a young man far less likely to take advantage of a young drunk girl than many other young arrogant men drunk and out of control and on the look out for a shag regardless of consent or consciousness.

I’ve always been wary of the politicization of rape – because it involves too many massive, often lazy, generalisations. I do believe that young men (and women?) should be educated about the sexual crime and in particular the importance of consent and respect, but, only in the same way that they should be educated about drugs and stealing and the fact that if you carry a knife on a night out you may end up getting life imprisonment. I also believe that men who commit sexual crime in a way that demonstrates that they pose a continued threat to the safety of others should be locked up for a very long time (I never ask them where they’re going to be in five years time), and the law is well able to cater for that. But, not every rapist has inert predetermination towards sexual crime or a deeply held misogynistic ambivalence towards woman – it is a fact that many rapes are committed through stupidity (often drunken, which was probably the case here), arrogance and a temporary total lack of judgement (and I appreciate how callous that sounds when seen from the point of view of the victim). Ched Evans falls into this latter category – he has been punished for his crime and he must now be allowed to ‘get on with his life.’ If he cannot, then what’s the point in releasing him from prison in the first place.

{ 13 comments… read them below or add one }

Mike Killingworth October 18, 2014 at 2:52 pm

Ray, I don’t see why you should regard it as a personal failure if you don’t persuade a jury to acquit someone who is guilty. Unless you think your client is innocent and you’ve failed to convince the jury, of course!

As to Evans, societal norms as how to how drunk a woman can be and still give consent have varied over time. If the Wikipedia account is to be trusted (and it is not wholly clear) it would seem that all that is necessary for a man to be convicted of rape is for the woman to deny all knowledge of intercourse due to intoxication. I don’t believe that’s the law and neither do you. (It’s perilously close to allowing a woman to withdraw her consent afterwards – the law that many women want and many men fear).

The implication of your article is that Evans’ further appeal – and bear in mind that another man was acquitted in remarkably similar circumstances – is misguided. But you don’t actually say so.

We need a clarification in the law so that a man like Evans is treated in a way that acknowledges his criminal behaviour (actual bodily harm? sexual intercourse whilst reckless as to consent?) whilst denying women who behave as this one did the cachet of victim status. If Evans feels that he has been jailed for being a celebrity, whilst the woman is not encouraged to address her substance abuse, then justice has not been done.

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Mike Killingworth October 18, 2014 at 2:55 pm

My apologies. I meant to turn off the italics in the last paragraph after “cachet”.

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Ray_North October 18, 2014 at 5:29 pm

Mike, I always love your comments.
First, perhaps I didn’t express myself clearly, when I see it as a ‘personal failure’ when someone coughs the crime to me, after being convicted by a jury, the failure is not the failure to win the trial, but to make the defendant feel confident enough in my advice to plead guilty at the first opportunity and gain maximum credit. Only skittish or stupid criminals plead in the face of strong evidence, and I see it as part of my job to ensure that they don’t do something stupid early on like run an unwinnable trial.
As for the law about rape – it is clear, drunken consent is still consent, as long as the other person agrees by choice and has the freedom and capacity to make that choice. If someone is so drunk that they don’t have the capacity to consent, then it is rape.
I know a bit about the Ched Evans trial, he did appeal and didn’t get anywhere. The difference between his mate and him was, as far as I am aware and I could be wrong about the facts, the co-defendant had returned to the hotel with the girl and had sex with her, she had continued to drink and then Evans had come in later and had sex with her – by which time, she no longer had the capacity to consent to what happened.
I completely disagree with your last paragraph – there can’t be different degrees of consent in sexual activity – both sides have to consent to the act – the issue of culpability and harm (no barrister worth his salt would suggest to a sentencing judge that his client had been reckless as a judge would give him/her short shrift) and any aggravating features such as violence, degradation, pre-meditation, sustained assault, ejaculation, STDs etc etc.

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Mike Killingworth October 18, 2014 at 5:53 pm

If “no longer had the capacity to consent” is legalese for unconsciousness then Evans most certainly should have known better. But I doubt even the judge believed that sending him down will lead to this sort of irresponsible opportunism happening any less frequently in future. I’m left with the sense that the matter was only reported to the police because the defendants were minor celebrities.

Consent may be an on/off switch in law, but the real world ain’t so simple… a lawyer may refuse to have sex with his wife whilst she is asleep, but many other husbands do!

We need laws that give the authorities clues as to how they should use their discretion (e.g. whether or not to prosecute), and the rest of us broad hints as to how that discretion will be used. Lumping Evans in the same class as rapists who use violence or the threat of violence, or who persistently ignore the word “no” does not seem to achieve anything to me. Yes, he needs to look at himself & I hope he is doing so. But I remain to be convinced that he needs to do so more than she does – and I remain unconvinced that prosecution is appropriate when clearly the woman is as much a victim of her own folly as of anything else, and there is no aggravation.

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Fionauk512 October 20, 2014 at 9:48 am

So, a 19 yr old already worse for wear with alcohol (apparently she had fallen over in a kebab shop, a witness said she was unsteady on her feet and her speech was slurred) goes to a hotel room with one man. At this point it is decided she is capable of giving consent. They have sex, and she continues to drink.

The man she has sex with, has already sent a text to his mate to say he’s got “a bird”. Mate makes his way over to the room, and has sex with her even though she is even more drunk, two other men make there way over as well and try to film what was happening. It strikes me that she would have had no awareness of the plans of all these other individuals and frankly it is predatory. My instinct when I see someone in a vulnerable state is to make sure they are alright. I don’t find it a valid argument to say a man isn’t culpable because a woman is paralytic. She may have put herself into a vulnerable position, but that doesn’t take away his responsibility , he made choices that constitute rape. I also don’t feel the responsibility is in any way equal.

The fact that he has served only two and a half years reflects that there was no violence or aggravating factors. Not all the information is in the public domain, quite rightly, so we are all not as informed as the judge and jury, and appeal court that all felt the conviction was safe. The case has been kept alive because of the resources available to Evans, his girlfriends multi millionaire father who has paid for appeal lawyers and put together a professional website casting doubt on the girl.

He has a fan base that are prepared to overlook his behaviour, after all he is a footballer, he can score goals, he can be cheered on at the ground, she was only a silly drunk girl., a gold digger, it goes on. Some of these people named her on social media and she has had to move away from her home and change her identity.

The fact that all of the men involved see nothing wrong with their behaviour and the only issue for Evans is that he was unfaithful to his girlfriend speaks volumes about attitude. When being questioned at the police station he made some comnent about being able to have any girl he wanted because he was a footballer and he had money, that’s what girls liked. I’m not suggesting there aren’t some girls who wouldn’t be impressed and fall in the way suggested by Evans, but it is an attitude which may make it easy for him to not question his actions.

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George_East October 20, 2014 at 12:25 pm

Fiona, I agree with you on this. The attempt by some quarters of the media to set Evans up of the victim of the piece has been pretty sickening. As for whether he should be ‘allowed’ to return to playing football, I fear that there is a real risk that he will become something of a terrace hero if he does amongst the very largely young male football fanbase.

I am also not with Ray on the ‘politicisation of rape’. Given prevailing power structures in society it is inevitably a political issue – it is notable, for example, that whilst crime (including violent crime) continues to fall the incidence of rape continues to rise. In that sense rape is very much not like other crimes and issues of education and the meaning of consent are front and centre for young men br0ught up in an era of endless free porn.

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Fionauk512 October 20, 2014 at 1:03 pm

I think I used a double negative in my last paragraph, but my meaning is clear. I find it really worrying how the actual victim in this case has become subject to further abuses. Ched Evans has every incentive to protest his innocence, why should he say anything else, he has a family and girlfriend who don’t call him out on his behaviour. He has left prison into this reinforcing embrace and therefore wouldn’t it suit him to state his ‘shame’ on being unfaithful, thus maintaining this support. I wonder if his apology to his girlfriend only happened because he was caught, if nothing had come of this incident would he and his friends behaviour have been different or less predatory on any further nights out.

I agree with you George, there is something dark going on in the minds and attitudes of some young men when it comes to sexual behaviour. The freely available porn culture has a part to play for sure. But it is also about power and a sense of entitlement that extends to womens bodies.

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George_East October 21, 2014 at 11:36 am

I agree with your last sentence. I certainly didn’t intend to make a crude causation argument from the free availability of porn to rape. The problem is far more deep seated than that (though I think the pornification of sex and sexual expectations have fed it). The work on positive or enthusiastic consent on campuses on both sides of the Atlantic should be welcomed for at least trying to address it – though even if it does have an effect, it is clearly only reaching a very limited demographic.

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Ray_North October 21, 2014 at 7:19 pm

I am wary of politicising any crime – its a dangerous road fraught with meaningless generalisations, I mean there is a plethora of evidence to suggest a correlation of abuse of women within the Muslim community, the carrying of firearms of young afro-carribean men, drunken violence and young whites – where do you stop? Rape, just as those other crimes, is a crime and should be treated as one and ALL young people should be taught sexual respect.
Though I concede the issue of free porn is an interesting one – but, as you acknowledge George, it is actually a difficult link to make.

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George_East October 27, 2014 at 3:50 pm

The point I was trying to make is that we live in an era of falling crime and have done for a period of two decades now. All the indicators show that crime is way down on its early 1990s peak. A lot of that, criminologists will say, is about demographic change – fewer young men means less crime.

However, running completely counter to that trend is the incidence of rape. It is impossible I think to ignore that fact and very difficult therefore to treat it as simply a question of ‘crime’, without any reference to broader social context. One has to try to understand why this would be so. There seems to be an increasing view amongst young men (and this is what Fiona I think was identifying) of sexual entitlement. My point on porn culture is not that it causes rape, but that it has, I think, added to that sense of sexual entitlement and added to the problems with the concept of consent.

I think it is also part of the pretty scary culture of ‘male rage’ that has been pretty well documented over recent years – where women, particularly those with a prominent profile, are subjected to constant threats of rape and violence for speaking out (even if the issue is not one that ‘threatens’ men in any way – see for example the experience of Stella Creasy or Caroline Criado-Perez). Jessica Valenti in today’s Guardian cites Germaine Greer’s quote that: ‘men are afraid that women will laugh at them; women are afraid that men will kill them’. I think that is sadly becoming more (not less) the case.

So it is not a question of whether ‘rape’ should be politicised, it is a question of rape already having been politicised, by virtue of the underlying cultural and societal context . In that sense it is not just another crime. To deny the cultural and political context is as naïve as saying that the British Jihadi phenomenon is simply about uniquely evil or stupid young men.

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Baled_Out November 12, 2014 at 7:49 pm

Excellent blog, much of which I agree with. But I must take issue with your statement above: “The difference between his mate and him was, as far as I am aware and I could be wrong about the facts, the co-defendant had returned to the hotel with the girl and had sex with her, she had continued to drink and then Evans had come in later and had sex with her – by which time, she no longer had the capacity to consent to what happened.”

There is no evidence in the public domain that I’m aware of that would suggest the woman was more drunk when she had sex with one defendant in comparison with the other. In any event, the time interval between her arriving at the hotel with McDonald and Evans’ arrival was only about 10 minutes. McDonald’s aquittal almost certainly rested on the get-out clause available in law that the jury believed that McDonald had a reasonable belief that consent was given, whereas, in their view, Evans did not have such a reasonable belief.

This doesn’t help Evans’ cause at all of course, but the most surprising aspect of this case is that no one seems in any way concerned that “a reasonable belief that consent was given” could be allowed to trump the simultaneous opinion of the jury that the victim was too drunk to consent to sex. What reasonable belief could there ever be that would override the transparent evidence of intoxication?

The urge to scapegoat a highly paid footballer has over-ridden the serious concerns raised by this case. To my mind there is an urgent need to overhaul sexual offences law so that proportionate (non-rape) sentences are applied in borderline cases similar to this one. In addition there is a strong argument for the elimination of the “reasonable belief that consent was given” get-out clause, or it should at the very least be substantially constrained.

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Ray_North November 12, 2014 at 10:38 pm

Thanks for that very measured and detailed response Baled_Out.
I think you’re right in that the co-defendant ran a defence of ‘did not reasonably believe that the defendant consented -’ something that must surely have been based upon the fact that she had gone willingly into the bedroom with him, but not Evans – though I’m surmising about this.
As for ‘being too drunk to consent’ being trumped by ‘not reasonably believing in consent’ being incompatible, that is an interesting point – judges will tell a jury that if they are sure that a person is incapable through drink, then ‘reasonable belief that they defendant consented’ doesn’t come into it – because the reasonable belief is not a subjective one. Most juries get this – but it is tricky.
Ched Evans does deserve the right, in my opinion, to go back to normal life – but, his continued assertion that he is innocent is really foolhardy.

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Baled_Out November 13, 2014 at 9:38 pm

It would certainly appear that the conviction was very much a borderline one. In fact, given that both the defendants had sex with the women in virtually identical circumstances, as far as can be ascertained, then the evidence of the woman being too drunk to consent must have been adjudged borderline by the jury for them to have permitted other considerations to trump that determination. It’s hard not to have serious misgivings about a justice system that yields such disparate outcomes for two individuals who have behaved pretty much in the same way.

I can’t agree with your assertion that Evans’ continued assertion that he is innocent is really foolhardy. He’s pretty much in an impossible position. The way I see it, both men behaved in an exploitative manner, which should warrant self-reflection and a degree of remorse. Trouble is, Evans’ is being asked to own up to being a rapist, deserving of a 5 year prison sentence – and I can understand his reluctance to do so, as the sentence, for a borderline offence such as this one, is way too excessive. This is perfectly illustrated by a comparison to the 10 months sentence received by Troy Deeney for affray. He was caught on CCTV kicking a student in the head – who suffered a broken jaw. Another student injured in the gang attack needed 20 stitches to the mouth. To my mind an attack that causes serious physical injury, and risked inflicting brain injury, is deserving of a lengthier sentence than the one received by Evans. This disparity speaks volumes about society’s attitudes towards crime against men as opposed to women.

This case demonstrates the need for a Sexual Exploitation Act, that encompasses crimes of sexual misconduct where there is significant self-inflicted impairment of capability to consent on the part of the victim. I would suggest a maximum sentence of two years would apply for such an offence – with a sliding scale reflecting the degree of exploitation. In the process of reforming the law the ‘reasonable belief that the victim consented’ defence should be removed, or substantially constrained with respect to all types of sexual offence.

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