On 14th October 2016, after a trial that lasted two weeks, former Sheffield United and Wales footballer Ched Evans was found not guilty of rape.
There is a long history in relation to this case (see below for our pieces on it), including two trips to the Court of Appeal. The second one, earlier this year, resulting in the conviction being quashed and sent for a re-trial on the basis of fresh evidence that the jury did not hear.
What was the fresh evidence?
The appeal was allowed on the basis of there being fresh evidence that the first trial did not hear.
At the time, there was an order prohibiting publication of the details.
During the trial there were some details published, but these seemed to be more in the local than the national papers. Much of it appears to relate to the sexual behaviour of the complainant – normally something that is not admissible in Court unless there are exceptional circumstances.
Much of it seemed to relate to showing that the behaviour of the complainant on the night of the alleged rape was how she would have behaved during consensual sex, including the specific phrases used.
For example, someone who had sex with the complainant two days before Mr Evans did “said she told him to “go harder,” a phrase similar to what Mr Evans claims she used with him in a hotel room.“
Another example was a man who had “slept with the complainant multiple times in the months leading up to the alleged offence said he picked her up after a night out on 28 May 2011 and described her as being drunk when he took her home“. The complainant ““came on to” him in bed, saying: “Are you not even going to rip my clothes off?”“
Not only was it the case that she ““dictated” how the sex occurred”, she also “told him to “go harder”.“
The Swansea Sound reported that “A man who slept with Ched Evans’ accuser two weeks after she was allegedly raped by the footballer has told a court that she used the same phrase during sex with him“.
Why was this evidence admitted?
It is right that as a general rule evidence of the complainant’s sexual activity with a defendant is inadmissible. This is all the more so when it relates to sexual activity with people other than a defendant.
The reason for this is obvious – it’s generally not relevant. Even if such questions were to be allowed, in most cases a defence lawyers would not want to ask them anyway. Saying to a jury that a woman had sex with another man the week before would probably be met with a shrug and a resounding “so what”, and would run the risk of a jury thinking “if that’s your best point, you can’t have much faith in your client’s defence”.
Very occasionally, this evidence is relevant and this case provides a good example. The best thing is to read the Court of Appeal judgement which sets it out clearly, but we will have a quick look now.
The first point is that such evidence is admissible by way of rebuttal, ie to contradict an assertion made by the prosecution.
In this case the complainant in her police interview said that she would not have sex with men she didn’t know. There was evidence to rebut that at the first trial, but the prosecution decided not to call the above evidence from the victim, and so the rebuttal evidence fell away (incidentally, this shows how strict the rules are – the fact that a complainant tells an untruth to the police could be seen as relevant in itself, but the prosecution could in this case shut down that line of evidence by not using it).
The second area is more complex, and more contentious. The Court of Appeal concluded that the evidence set out above of the complaints behaviour on other occasions was sufficiently similar so that it cannot be explained by a coincidence. For that reason, it was evidence that the jury should have heard in assessing whether they were sure of Mr Evans guilt.
It should be noted that this was in accordance with what Mr Evans said when he interviewed by the police, before he was aware of all the above evidence.
Does this mean woman can be asked about their sexual history? Does it change the law?
No and no. This was a very unusual case and it will remain the case that it is only in exceptional cases that such evidence can be put before the jury.
So, can I call Ched Evans a rapist?
No. He has been acquitted by a jury, and should be treated as being innocent.
What does this mean for the complainant? Will she go to prison?
No. It is a common misconception, but a not guilty verdict does not mean that the complainant lied or anything like that.
A jury cannot convict unless they are sure that a defendant is guilty. A not guilty verdict sheds no light as to what the jury thought about the quality of her evidence.
In any event, it is quite possible that both parties in a rape case can be telling the truth
It needs to be remembered that the verdict does not mean that the complainant can be named – she retains her right to lifelong anonymity.
This case has obviously generated a lot of interest, and we have looked at it on numerous occasions. Here are some of our pieces :