The high-profile case of professional footballer, Ched Evans, who was convicted of rape in 2012 but found not guilty in a retrial last week, is worthy of reflection.
There’s no need to go into every detail of the case here, so I won’t. What’s most interesting about it is that what convinced a jury to convict Evans at the original trial was the same thing that convinced the jury at the retrial to acquit him. Namely, how intoxicated was the women with him. What tipped the benefit of the doubt in favour of Evans second time around was new information, which had not been heard at the original trial.
Two ex-boyfriends described near-identical sexual encounters with the same woman days before and days after the alleged rape. This persuaded the retrial jury to give Evans the benefit of the doubt – effectively ruling that she probably did consent to sex with Evans, but probably couldn’t remember doing so.
The whole thing’s a sorry and sordid mess. It is possible, of course, that Evans did have sex with the women without her consent and knowing that she was incapable of consenting or resisting. It’s also possible, as alleged by the prosecution but dismissed by the Appeal Court judges, that the two ex-boyfriends colluded with Evans and lied about their encounters with the woman to strengthen his case.
But that she can’t remember what happened, due to her intoxication, and that there was no one with her who could testify in her favour means that Evans’ possible guilt cannot be proven beyond reasonable doubt – ergo he must be deemed an innocent man in the eyes of the law. And neither can it be proven, if indeed they did, that the ex-boyfriends lied. Once again because the woman remembers very little of those encounters either.
If Ched Evans did have sex with a woman incapable of consenting in any way, then he has gotten away with a despicable act. If he did, then he exploited the recklessness of a young woman to commit an immoral act upon her person.
If she did consent to sex with him, however, but felt too humiliated or ashamed to admit it or else doesn’t recall doing so, then she is the sort of person who seemingly thinks nothing of an innocent man being wrongly convicted of rape and losing his liberty because of her irresponsible behaviour.
This whole episode, which has played out in public and has attracted attention from the shrillest so-called feminists and society’s lowest-browed men, serves as a lesson in individual responsibility and power.
Abraham Lincoln once said that “…if you want to test a man’s character, give him power.” He was presumably referring to political power, but there is a natural power imbalance – based on physicality – between men and women at all times, which is always testing a man’s character.
The more power-less a woman is the more challenging the test. The ultimate test of a man’s moral character is if he ever finds himself with a completely powerless woman (i.e. passed out drunk) or else a woman who knows not what she is doing (i.e. drunk). Most men past such tests of their character, but some do fail.
This is why it is unwise for women to act as if the world is only populated by men of strong moral character. It can seem wise, however, because most women most of the time wake up the next morning unharmed. But that’s more by good fortune than by judgement.
Young women, just like everyone else, are responsible for their own safety and welfare. No one else is or can be responsible for a woman’s welfare because only she controls her thoughts and actions. However, young women who drink so much that they render themselves incapable of thinking or acting place themselves at the mercy of a stranger, who could all too easily abuse the power that gives them if it happens to be a man of low moral character. And worse still, stand a good chance of not being punished for it by benefiting from reasonable doubt in a court of law.
The degree to which one can rely on the kindness of strangers is surprisingly high, but varies with the company one keeps, can never be known for certain and has its limits.
A man who rapes a woman, drunk or otherwise, is wholly responsible for his heinous actions and deserves punishment. This is undeniable. A woman who drinks herself senseless is responsible for putting herself at greater risk of being assaulted because she renders herself incapable of refusing consent, resisting or defending herself from assault. This is also undeniable. Rape is an immoral act. Drinking yourself senseless in the company of strangers is an unwise/dangerous one.
In reading about this case I learned that defence lawyers in the UK are banned from cross-examining an alleged rape victim about their sexual behaviour or history. There are strict restrictions about what evidence can be put before a court by the defence about an alleged victim’s sexual behaviour. Apparently, this legislation aims at protecting an alleged rape victim from emotional distress or humiliating treatment.
The intention behind this legislation is noble, but it is an illiberal use of state power and an unwise shifting of decision-making power away from judges and towards the State.
Using legislation to protect alleged rape victims comes at too great a cost to the judicial system because it hinders and delays pursuing the truth and serving justice to all. It’s a government-made obstacle where there are already plenty of natural obstacles.
The decision as to whether a defence lawyer can cross-examine an alleged victim about her sexual behaviour or history, or as to what information about it can be presented as evidence, should be left in the judge’s hands. For no one is better placed – in terms of knowledge of the case, the accuser and the accused – than the judge to decide whether the defence should be allowed to cross-examine the accuser about her sexual behaviour or history – or what the jury should know about it.
And no one else has a greater incentive to make sure that the alleged victim does not suffer unnecessary emotional distress in this particular pursuit of truth and justice, which that judge is responsible for.
A good judge allows a defence lawyer to cross-examine an alleged rape victim about her sexual behaviour or history if he or she believes it would present the jury with pertinent information, without which, the jury wouldn’t be making the most informed decision. That alone would be the determining factor in a good judge’s mind, not whether it would upset the alleged victim or not. Society can’t afford to have judges who aren’t prepared to cause someone temporary emotional discomfort when he or she believes it necessary to the fullest pursuit of truth and justice.
Laws cannot reason. Universal decrees in the form of legislation cannot account for the uniqueness of each rape case. There is no one-size-fits-all decision that can possibly be correct for every rape case. As a result, this legislation will result in instances of innocent men accused of rape being convicted when they should be acquitted.
A judge, an individual with a reasoning mind, can account for the unique factors in each case in his decision. He is capable of recognising (at the first opportunity) the need for the jury to have some pertinent information about the alleged victim’s sexual behaviour or history should there be one. The decision shouldn’t be made by default by legislation created according to the incoherent rights theories and illiberal urges of women’s support groups and campaigners. Or indeed any special interest groups.
As we’ve seen in difficult and distinctly grey cases like Ched Evans’s, where the jury had to make a decision based on little more than subjective testimony from the accuser, the accused and a few others, such information can be the difference between a jury convicting a man because of doubt and acquitting a man because of it.
Reasonable doubt should always lead to acquittal for sane individuals who present no danger to the public. If it doesn’t, then a system designed to produce justice for all produces injustice against some people; it becomes a weapon in the hands of those who create the legislation that binds it and prevents its proper functioning. A way of taking away the liberty of a man whom we don’t and can’t know is guilty of a crime, but who some people think should be punished by the State anyway.
That’s not justice. But government legislation, created by those in power who are supposedly enacting the will of the people, creates the illusion that it is.