Ched Evans

[zahidf]

she was just 10 minutes before.

the facts of the case as i understand it was that the acquitted footballer could prove within reasonable doubt that he believed that she had consented to have sex with him, whereas Evans could not prove it based on his actions and testimoney. It's not a case of she suddenly became drunker within 10 minutes.

[zahidf]

Put simply, and this is by no means foolproof but legally I can't see any other way round it.

If a woman says that due to drink, she cannot remember if she gave consent or not. And the man says either that she did or that he can't remember either. And there are no other witnesses or other evidence suggesting force.

Then he has to be innocent under the 'presumed innocent until proven guilty' law, surely.

Now I am aware that that is a massive generalisation and doesn't cover everything but the whole premise that a pissed up man has to take more responsibility than a pissed up woman scares me and makes me happy that I'm in a stable relationship and not out looking for a mate.

Although to be fair I haven't got enough money to buy someone the amount of alcohol that'd make them want to go home with me anyway :-)

The guy is innocent yes, but the jury found in Evan's case that he was aware that she was too drunk to give consent and had sex with her regardless. He wasn't too drunk to know what he was doing ( and i don;t think that was ever part of his defence)

[zahidf]

Put simply, and this is by no means foolproof but legally I can't see any other way round it.

If a woman says that due to drink, she cannot remember if she gave consent or not. And the man says either that she did or that he can't remember either. And there are no other witnesses or other evidence suggesting force.

Then he has to be innocent under the 'presumed innocent until proven guilty' law, surely.

Now I am aware that that is a massive generalisation and doesn't cover everything but the whole premise that a pissed up man has to take more responsibility than a pissed up woman scares me and makes me happy that I'm in a stable relationship and not out looking for a mate.

Although to be fair I haven't got enough money to buy someone the amount of alcohol that'd make them want to go home with me anyway :-)

The guy is innocent yes, but the jury found in Evan's case that he was aware that she was too drunk to give consent and had sex with her regardless. He wasn't too drunk to know what he was doing ( and i don;t think that was ever part of his defence)

[eFestivals]

ok, if we take this a step further, then, do you disagree with the rape law as regards drunken people

I agree that taking advantage of someone is wrong, and is rape.

The law as it is I'm not comfortable with, tho quite how it might be codified in another way I'm not sure.

I don't believe it can be right that a woman can say yes, a bloke can take that in good faith (truly believing that it's a competent 'yes'), and yet a court that can never grasp all the nuances of the moment because it wasn't there can rule it as rape.

If it's the validity of the evidence, can you think of a better way of establishing consent?

A competent sounding 'yes' should be acceptable as consent, yes? After all, a competent sounding yes is what we all act upon.

And yet the law says it isn't. The law says that i the case of sexual intercourse that competent sounding yes doesn't count unless the court agrees.

The very real problem with alcohol s that even if a woman does consent, it's the drink talking.

The very real problem with alcohol is that it can cause a person to drive when their sober judgement wouldn't have them do so.

Spot the difference?

Why is one case of poor judgement due to alcohol a free-pass from the legal consequences, and one isn't?

If you disagree with the law, do you think people wh are incapacitated should be protected? If so, how?

I don't have the answer. I can see the flaws in what we have.

I am a little confused still, you think that drunken women should take responsibility of their alcohol consumption, which I can understand, yu do find yourself thinking 'what wee they thinking' sometimes when you hear of the mess people get themselves into. But do you think they then forfeit their right to legal protection?

Not at all. But neither do i think a guy should lose their right to the normal legal protections either.

Edited January 14, 2015 by eFestivals

[eFestivals]

the facts of the case as i understand it was that the acquitted footballer could prove within reasonable doubt that he believed that she had consented to have sex with him, whereas Evans could not prove it based on his actions and testimoney. It's not a case of she suddenly became drunker within 10 minutes.

So what you're saying is that Evans' guilt rests solely on him not being able to prove something which he says happened.

And despite there not being a shred of evidence to disprove his claim, he's guilty.

Care to tell me where the "beyond all doubt" part of his conviction comes from, then?

Essentially, this law abandons that principle of English law, to instead replace it with "guilty unless you can prove yourself innocent".

(it's one of many laws passed in the last decade or so that turns that basic principle of English justice on its head).

Putting the Evans case aside and thinking only on the legal principles, does it not concern you that people are being convicted because they can't prove themselves innocent, rather than the court being able to prove them guilty?

[eFestivals]

Was Ched not in a fit state ?

Ched is not all cases this law will be used against.

The principle of that law is wrong. The conviction of Ched for rape might well be right.

[zahidf]

So what you're saying is that Evans' guilt rests solely on him not being able to prove something which he says happened.

And despite there not being a shred of evidence to disprove his claim, he's guilty.

Care to tell me where the "beyond all doubt" part of his conviction comes from, then?

Essentially, this law abandons that principle of English law, to instead replace it with "guilty unless you can prove yourself innocent".

(it's one of many laws passed in the last decade or so that turns that basic principle of English justice on its head).

Putting the Evans case aside and thinking only on the legal principles, does it not concern you that people are being convicted because they can't prove themselves innocent, rather than the court being able to prove them guilty?

Well, no, the prosection put forward their case, and the Defendants failed to dispute it successfully.

It's not changing the underlying legal principles. The evidence in the Ched case presented by the prosection showed that Evans raped the girl, and the Defence could not successfully refute it. It not putting the burden of proof on the defendant, it's putting the burden on the prosection, which the jury felt they achieved in this case.

That link i shared earlier puts it slightly better than i did in terms of the evidence behind his conviction.

Also, it's not beyond all doubt, it's beyond all reasonable doubt. If there is some doubt in a case, doesn't mean you have to acquit unless it's reasonable or considerable enough for you to do so.

Edited January 14, 2015 by zahidf

[eFestivals]

It's not changing the underlying legal principles.

It is. The law is worded in such a way that the view of the law when someone is drunk is such that the defendant has to prove consent, rather than the victim prove non-consent. Drunkeness is taken as being non-consent, no matter whether consent was given or not.

I understand why the law has been done that way. I even agree with it to some extent.

But it's still turned the basic principle of law on it's head. The presumption in law is that if drunk no consent has been given unless there's absolute proof to the contrary.

The evidence in the Ched case presented by the prosection showed that Evans raped the girl ...

... via the presumption in the law used to convict him that without absolute proof for the consent he said he'd got there could be no consent.

and the Defence could not successfully refute it.

The defence could not provide the proof of the consent that he says was given, which is the only acceptable evidence to refute in the specific circumstance.

Also, it's not beyond all doubt, it's beyond all reasonable doubt. If there is some doubt in a case, doesn't mean you have to acquit unless it's reasonable or considerable enough for you to do so.

There was doubt from the jury on that basis. They couldn't reach a unanimous verdict.

And then the judge told them that they wouldn't get to go home until they reached a unanimous verdict. And then they reached a unanimous verdict.

It could well be the correct verdict (and it's not a verdict I'm disputing), but that doesn't mean that the judge's instructions didn't warp the process.

Edited January 14, 2015 by eFestivals

[zahidf]

It is. The law is worded in such a way that the view of the law when someone is drunk is such that the defendant has to prove consent, rather than the victim prove non-consent. Drunkeness is taken as being non-consent, no matter whether consent was given or not.

I understand why the law has been done that way. I even agree with it to some extent.

But it's still turned the basic principle of law on it's head. The presumption in law is that if drunk no consent has been given unless there's absolute proof to the contrary.

... via the presumption in the law used to convict him that without absolute proof for the consent he said he'd got there could be no consent.

The defence could not provide the proof of the consent that he says was given, which is the only acceptable evidence to refute in the specific circumstance.

There was doubt from the jury on that basis. They couldn't reach a unanimous verdict.

And then the judge told them that they wouldn't get to go home until they reached a unanimous verdict. And then they reached a unanimous verdict.

It could well be the correct verdict (and it's not a verdict I'm disputing), but that doesn't mean that the judge's instructions didn't warp the process.

It’s not absolute proof: it’s not a strict liability offence at all. The threshold for a Defendant to have a valid Defence is very low: look at his co-Defendant, the fact she agreed to go to his room was enough proof for the jury to decide that he was innocent! The reasonable belief of the Defendant is the important point in this case ( and most probably all cases). For Macdonald, the fact she went in the taxi with him and went to the room with him was enough to convince the jury that he had a reasonable belief of consent.

For Evans, he lied to a receptionist to get a key to the room, and text his mates ( before he met the girl) to get their camera ready to take photos because ( my paraphrasing) ‘something is definitely going to happen’. Based on that, the jury’s judgment for Evans that him saying she consented wasn’t persuasive enough evidence as a Defence.

The prosecution case was that she was too drunk to give consent. Macdonald proved ( very easily) that he reasonable believed that she had given consent to having sex with him. Evans on the other hand couldn’t mount this easy hurdle ( bearing in mind juries generally aren’t fans of drunk girls having sex).

The framing of the implications of the law is wrong. If a guy picks up a massively drunk girl in a club and he goes home with her or her with him, he will not get done under the law. If a guy sees a drunk girl slumped in a corner somewhere or he breaks into a hotel room where she is sleeping, he can’t have sex with her and say ‘ she consented’ and hope for her lack of memory to let him get away with it.

I don’t get what you mean about the verdict. I thought it was a majority verdict 11-1? That is perfectly valid in law and the judge can ask for that without it being a miscarriage of justice. At no point is that used as an appeal point.

If your saying he said he would only accept an unanimous verdict, again that’s perfectly valid and if the jury failed to reach one it would have been a mistrial. He is perfectly fine to ask them to consider it more, and I can’t see how that warps the verdict at all. I don't think he said they would have to stay indefinitely until they reached a verdict, that would be a successful appeal point! Do you mean that they couldn't leave that day?

again, there is doubt on all juries for all cases. Saying it took them some time to reach a verdict doesn't mean the verdict is wrong. It should take time, shows they are considering it carefully and in every respect.

For another crime, if you rob a massively drunk person and say ' he gave it to me', that isn't a catch all defence, but it will be more persuasive than if he is sober and able to refute it.

Edited January 14, 2015 by zahidf

[eFestivals]

The reasonable belief of the Defendant is the important point in this case ( and most probably all cases).

Evans' wasn't found guilty because his claim of consent was disbelieved, he was found guilty because the girl was deemed too drunk to give meaningful consent (whether or not she voiced that consent).

Evans' says the girl consented. In all circumstances apart from when a girl is drunk that means consent; if she's drunk it doesn't.

That's how the law is worded in its full effect.

Are you married? If your missus says let's get it on, do you check if she's drunk first, and how drunk, to check whether you can accept her word?

As far as I'm concerned Evans is a rapist, but that doesn't mean that I accept that everything about how this law works or is worded is something I'm happy about.

Edited January 14, 2015 by eFestivals

[zahidf]

Evans' wasn't found guilty because his claim of consent was disbelieved, he was found guilty because the girl was deemed too drunk to give meaningful consent (whether or not she voiced that consent).

Evans' says the girl consented. In all circumstances apart from when a girl is drunk that means consent; if she's drunk it doesn't.

That's how the law is worded in its full effect.

Are you married? If your missus says let's get it on, do you check if she's drunk first, and how drunk, to check whether you can accept her word?

As far as I'm concerned Evans is a rapist, but that doesn't mean that I accept that everything about how this law works or is worded is something I'm happy about.

But Macdonald was found innocent ( most likely, we don;t why for sure) because he had a reasonable belief in consent. That was cornerstone of his defence as well as Evans. So the belief of the Defendants is an important factor.

In this case, his behaviour before the sex made the jury believe that Evans did not have a reasonable belief that consent was given. ( or was able to be given)

The law is as imperfect as any law, but it isn't going to lead to loads of guy going to jail for rape unfairly.

[eFestivals]

But Macdonald was found innocent ( most likely, we don;t why for sure) because he had a reasonable belief in consent.

her choosing to go with him without him personally having piled her with alcohol was all it took to clear him (with witnesses for their meeting and her state at that time).

There's no similar 'implied intent' for Evans. His only realistic defence - due to how the law is worded - within the full circumstances of that evening would have been if he'd have had her consent in writing, to give irrefutable proof of her consent.

But even if he'd got it in writing the court still has the authority in law to reject that as a suitable defence. The way the law works means that any given consent does not legally count as consent in its own right, because she's considered too drunk to consent.

(realistically, having it in writing probably would be accepted by the jury, but there's no guarantee - the court has the right to over-rule all fair-minded decisions that might have been taken by those involved.)

In this case, his behaviour before the sex made the jury believe that Evans did not have a reasonable belief that consent was given. ( or was able to be given)

Yup - a decision made by a remote 3rd party, using more-limited evidence than was available to Evans at the time (cos he was actually there to see it all) in making his own judgement.

That's not me saying they've got it wrong, that's me saying there's plenty of scope for them to have got it wrong.

The law is as imperfect as any law, but it isn't going to lead to loads of guy going to jail for rape unfairly.

I doubt it'll lead to loads going to prison wrongly, but a bad law remains a bad law.

And one is too many. Our justice system was, until relatively recently, based around the idea that it was better that a 1000 guilty people go free than just one innocent goes to jail. with laws like the one we're discussing that changed.

Edited January 14, 2015 by eFestivals

[kaosmark2]

The very real problem with alcohol s that even if a woman does consent, it's the drink talking.

Is it only the drink talking? I spent about 6 years of my life getting hammered on a nearly daily basis without having any shenanigans. Even if I couldn't stand up or walk straight I still held the idea that drunken consent isn't actually consent (from either party). Often went home and jacked off if I'd been flirting and groping, and somewhat gutted to have missed out on fun times, but it just never became ok to me regardless of how pissed I was.

[feral chile]

Is it only the drink talking? I spent about 6 years of my life getting hammered on a nearly daily basis without having any shenanigans. Even if I couldn't stand up or walk straight I still held the idea that drunken consent isn't actually consent (from either party). Often went home and jacked off if I'd been flirting and groping, and somewhat gutted to have missed out on fun times, but it just never became ok to me regardless of how pissed I was.

Well alcohol does lower inhibitions.

We always thought a man who took advantage of a drunken woman was a shit, before ever it became law. But you'd get men who'd justify it, and spiking drinks, before that was an offence, by arguing that if it lowered inhibitions, they must have wanted to anyway, deep down. And they were freeing these women from repressed urges.

[viberunner]

And yet from all the shouting they've done and i've heard so far, nothing of their stated reasons needs him banned from pub footie.

Because he is a predatory beast who can't be trusted around women who have been drinking?

[eFestivals]

Because he is a predatory beast who can't be trusted around women who have been drinking?

if that's what he is, then stopping him playing pub footie does nothing against that. He can still go to the pub.

[kaosmark2]

How about maybe a couple of dates and get to know her first.

You put out after 2 dates? Slut.

[kaosmark2]

The problem is we have large numbers of men who think sleeping with drunk ladies they have just met is a good idea.

Why one way? There's a fairly large number of women who think sleeping with drunk blokes they've just met is a good idea.

[eFestivals]

How about maybe a couple of dates and get to know her first.

means nowt.

Or are you saying that if you go out with a boys a few times that you giving them permission to have sex with you?

[eFestivals]

Women can't rape men.

the sexists love their fallacies.

[gary1979666]

the sexists love their fallacies.

It's their falluses that get them in trouble in the first place!

[LondonTom]

Women can't rape men... Women can't force themselves on men.... That is why

You lack imagination

It might not be a great idea, but if two people want to get off with each other, what exactly is the problem? That one might regret it in the morning?

[feral chile]

I'm not saying this is standard behaviour, but I did overhear 2 women plotting for one to lock the other in a room with a man, so she could have her way with him. (All 3 were drunk).

I think Barry might be correct that as the legal definition of rape involves penetration with a penis (I'm not sure if it specifies penetration of a female), then only men can technically rape.

I didn't believe the law could be so sexist, but apparently it is.

[eFestivals]

I think Barry might be correct that as the legal definition of rape involves penetration with a penis (I'm not sure if it specifies penetration of a female), then only men can technically rape.

I didn't believe the law could be so sexist, but apparently it is.

The sexism here is in that thinking.

Firstly, men get hard ons when unconscious all the time.

Secondly, a hard on does not signify a willingness to have sex. It only signifies a hard on, a capability to have sex.

And thirdly, if arousal is not a choice for women, why is it for a man?

Edited January 15, 2015 by eFestivals

[feral chile]

Interesting article

http://www.bbc.co.uk/news/magazine-19333439