“Not in a position to give consent” really means not in a position to withdraw it, no pun intended. At least that’s how I read the report of the proceedings in which Ched Evans was denied leave to appeal his conviction. I think this principle skews the balance of justice irretrievably in favour of the accuser, in accusations of non-violent rape, and I’m not certain it’s a good thing.
First of all, however, let’s get some ad hominems out of the way. I am male, the gender more likely to be accused of committing rape. I am the first of four sons and I grew up with no sisters. So perhaps my position will be perceived as biased. However, I am also married (to a woman – one must clarify these days) and we have 3 daughters, for whose future I am always terribly concerned. So, maybe a little reverse ad hominem there too. In other words, I think my opinion will be balanced. At least a little.
My interest in this matter is mostly an academic one – a logical and jursiprudential look, as far as is possible in a non-academic piece such as this, at the events that led up to the conviction of Ched Evans. The facts of the case (here’s the link again) are that Evans and a “mate” of his had sexual intercourse with a very drunk girl, who claims she woke up the next morning hungover, without any memory of what had transpired the previous night. She’d arrived at the hotel where the incident took place in the company of Evans’s friend (McDonald) who, as we say in Lagos, “controlled his guy”. Evans arrived to meet the accuser “enthusiastically engaging in consensual sex” with McDonald and claims she asked him to perform oral sex on her. After that, he proceeded to have penetrative intercourse with her. Long story short, after she woke up the next day she reported to the police and both men were charged. When she was examined and samples taken from her body, there was only evidence of intercourse; no bruises or injuries indicative of violence.
The thrust of the prosecution’s case was that the accuser was too drunk to have given her consent and therefore could not have given it. In a very technical (and almost convoluted) explanation, her memory loss was discounted, both at the trial and at the application for leave to appeal the judgement. Discounting her memory loss is significant for me because, what if she did consent but had forgotten? Rather, according to the judge when sentencing Evans, “…. [the complainant] was in no position to form a capacity to consent to sexual intercourse, and you, when you arrived, must have realised that.” I shall return to this shortly.
The jury, based on evidence of the accuser’s state as gathered from CCTV and witness testimony, acquitted McDonald but convicted Evans. I find this a little curious. If she was too drunk to have consented, as was the prosecution’s case, did going to the hotel with Evans indicate subliminal consent or did she somehow get drunker just before Evans came along? Note that (1) there was no evidence that she ingested more alcohol at the hotel; and (2) when she was tested at the police station, the following morning, there was no trace of alcohol left in her blood. On what basis did the jury deem that she consented to the sexual activity with McDonald but not to the one with Evans?
Then we return to the judge’s summation of the law, that the complainant was in no position to form a capacity to consent. Now, the thinking here is obviously to prevent vulnerable people from being taken advantage of; so that, for instance, men would not get away with intentionally intoxicating targets and putting them in that state of inebriation or incoherence to have their evil way with them. Fair enough. But it does not seem to me that the facts of this case fall under such precautionary jurisprudence. The implications for this on drunken, spontaneous (AND, hopefully, VERY SAFE) trysts, aside, it seems that what is being implied is that it is illegal to have coitus with a partner who is not in a position to communicate a withdrawal of consent.
I put the emphasis on withdrawal because, as these things go, except the sexual act is a transactional one lubricated by financial oils, consent is very rarely ever positively/verbally sought or communicated. Yes, sometimes, the guy asks if he can kiss the lady (I’ve been informed that this is not the preference of most ladies), but many other times, the man generally swoops in tentatively and sees consent or refusal in the lady’s response to his gesture.
Same for more advanced physical contact. You try first base, then second, then third, then go for the home run. It is extremely rare that consent is positively or categorically sought at each of these metaphorical stations. What usually happens is, when it seems like things are moving onward from any base, the uncomfortable lady communicates hesitation (during which moment, many a-weak man will say and promise anything to progress) or an outright NO, at which point, all well-mannered men retreat, albeit regretfully and konjilically. This is why I struggle a little with the reasoning behind “not in a position to form consent” in this case.
This piece does not seek to detract from the seriousness of non-consensual sexual activity. The only reason I’m even able to debate the case is because the crime alleged was not of the stalking or violent variety. I’m also not holding brief for Mr. Evans, and only the three people in the room know what actually occurred. Well, two, if one remembers that the third person had no recollection.
However, if she was so drunk that sex with Evans could not be deemed consensual, how is it that she was deemed sober enough to have consented to sex with McDonald? She was sober enough to agree to go to the hotel with a total stranger but too drunk to have consented to sex with a third party, even though the evidence of the 2 men involved as to what transpired in the room was not contradicted?
Rape is absolutely and completely deplorable and I understand that being a footballer is not a human right, but the facts here do not support Evans being treated like depraved, deviant sexual predator. This is as borderline as they come.
Furthermore, as this Slate piece (long read) suggests, while every accuser deserves to and should have her case investigated thoroughly, the fact of the accusation alone should not lead to a presumption of guilt and the unfair treatment of the accused.
UPDATE: On the 21st of April 2016, Ched Evans had his conviction quashed by the Court of Appeal and a retrial was ordered.
FURTHER UPDATE: On the 17th of October 2016, Ched Evans was found not guilty after the retrial.