So here’s the moralising about Ched Evans then

With dreary predictability, there have been calls for Olympian Jessica Ennis-Hill to apologise to footballer Ched Evans for saying (after his initial conviction for rape, which has now been overturned) that she wanted her name removed from a stand in Sheffield United’s ground if the club offered him another contract. Why should Ennis-Hill apologise? At the time of her statement, Evans had been found guilty. Even now, isn’t Ennis-Hill entitled to subscribe to the widely held view that Evans’s behaviour was disgusting?

As far as the actual case goes, there’s been a definitive legal decision, however much some people disagree with it. (Those interested in issues raised by the case might care to take a look at the Secret Barrister website, which, among other interesting observations, contends that the case did not set a precedent for women being grilled on their sexual history.) Legality aside, what Evans might find himself dealing with from now on is the wider public response to the sickening, self-justifying culture he’s come to represent and the importance of personal responsibility.

Might we be seeing a tad of double standards here?

The evidence was that the young lady in question on one day asked her new found lover for doggie style sex and harder. On the next day she asked Ched for the same. Two weeks later she asked a third bloke for more of the same.

There indeed was a time when we would have said that this behaviour was disgusting. Perhaps we should be saying it is today. But I fear that it might be unwise to insist that a gentleman is disgusting for giving a lady exactly and precisely what she is asking for.

87 comments on “So here’s the moralising about Ched Evans then

  1. Shorter Barbara Ellen: “Men are responsible for everything, women are never, ever responsible for anything, because they are the weaker se…”

    *is shot by the ghosts of Sixties feminists*

  2. “with the men all the while cynically reassuring themselves that what they’re doing is legal (“consented”), ending all thoughts of accountability.”

    Accountable for what? He fucked her. She wanted it. No diseases or children resulted from it. What’s he accountable for? Her broken heart? Her feeling a slut the next day?

    Feminism is pathetic and childish. It assumes no responsibility. That if they wish after the event that it hadn’t happened that they can punish the man. Never mind how they felt and the lack of restraint they showed. I suspect it’s the result of boomers raising their daughters badly, spoiling them rather than making them responsible.

  3. But I fear that it might be unwise to insist that a gentleman is disgusting for giving a lady exactly and precisely what she is asking for.

    At the risk of siding with the feminists, we are not sure what she wanted. She had no clear memory. That puts him in the clear as far as rape goes. Ungentlemanly behaviour? That is another matter, and I guess what she is trying to say. I would not be pleased if he was my son. I would be thinking about honour killings if she was my daughter. Even worse, my child could work for the CPS. No one comes out of this looking good.

  4. If the Guardian hasn’t spent the past forty years sneering at “gentlemanly behaviour” and doing everything it could to undermine it, perhaps it would still be quite common?

  5. All down to the cps for pursuing this case. I truly hope that his lawyers will crucify the likes of Bindle and Perez for libel for comments they have made after the acquittal. As for Ennis-Hill, meat heads are still meat heads, gongs or not. Pay no attention.

  6. The Guardian haven’t accepted comments on any article on this matter. Eve the Mail has been rather limited, but strangely they have an article up by Bindel of all people!

    The Raccoon article is by far the best, most interesting thing I have read on the matter, and anyone who reads it and understands the implications of it can’t help but see that it was the CPS who really fucked this poor young girl harder than she asked for. They used her because it suited their agenda, even if it wasn’t in the best interests of her, Evans or justice; because it pushes the legal discussion further down the path they want it to go, which is to normalise in the public mind the idea of removing any sort of questioning of the “victim”*.

    * Sorry about the double quotes, but it is hard to know how to describe her, she never claimed to be a victim, a complainant or an accuser.

  7. BiW,

    To be fair, the woman reported her stuff missing, not a rape. I’d have less sympathy if this girl had run to the police crying rape, but she didn’t. She simply couldn’t remember.

  8. SMFS,

    There’s nothing ungentlemanly about it. Some women are up for things like dogging and swinging, and the implied setup of that is that you don’t send flowers the next day.

    The only way he was ungentlemanly is towards his girlfriend (although you could argue that unmarried people should have no expectation of fidelity). But if we’re going to attack everyone who fucked a bit of strange while in a relationship, that’s a long list…

  9. Tim Newman,

    I’m not complaining about the woman who went to the police, but the authors saying these things. As far as I can tell, she’s an utter mess and the result of this trial hasn’t been good for her, either.

  10. Bloke in Wiltsire – “There’s nothing ungentlemanly about it. Some women are up for things like dogging and swinging, and the implied setup of that is that you don’t send flowers the next day.”

    Some of them may well be. How many of them are so drunk they need support as they leave the club? The corollary of some women being down for threesomes is that you ought to be damn sure that the one in front of you is. Any evidence of alcohol impairment, while technically legal, is pretty morally dubious if you ask me.

    That is assuming two of you can road train her while your younger brother and a mate are watching in a gentlemanly way. I think that the sexual act may exclude the possibility.

  11. Some women are up for things like dogging and swinging, and the implied setup of that is that you don’t send flowers the next day.

    I knew some dingbat who married a much older guy in her early twenties in an open relationship and who was into orgies, etc. She then spent two years complaining he was cheating and not playing by the rules and not respecting her before divorcing him and remaining bitter thereafter. I’m sure her parents are proud.

  12. SMFS,

    She was asked, she said yes. And she said she wanted it harder. That’s clearly consenting behaviour. Now, did alcohol lower her inhibitions? Sure. But her level of alcohol consumption is her responsibility.

  13. This is the same CPS which deliberately tampered with CCTV footage in that Waterloo station sexual assault claim last year. Something has gone very badly wrong in that organisation.

  14. Bloke in Wiltsire – “She was asked, she said yes. And she said she wanted it harder. That’s clearly consenting behaviour. Now, did alcohol lower her inhibitions? Sure. But her level of alcohol consumption is her responsibility.”

    I am not commenting on her behaviour. I am commenting on his. Her level of alcohol consumption is her responsibility. I think he still has a moral obligation to make sure she is consenting. The more extreme the act, the more certain he should have been about the consent. This is pretty extreme. And the fact that she had to be helped to walk suggests ungentlemanly behaviour even if he has reasonable doubt.

    Also we do not know she wanted more and harder. After an offer of money some other men said she said she had said that on prior occasions.

  15. Rob, “Something has gone very badly wrong in that organisation.”

    Yes, it’s similar to some of the insights in the other thread on Aberfan and the reaction of the public bodies thereto.

    To any objection that the process for the complainant would have been worse than the sex, you can expect CPS lawyers all the way up to have replied: “our policy is clear, this is an allegation of sexual violence and it is in the public interest to prosecute”.

    As I pointed out the other week, there is no such thing in this country as ‘pressing charges’. The complainant does not get to decide. The prosecuting authority does. And it does so with reference to whether it thinks there is a) a reasonable prospect of conviction, and b) whether prosecution is ‘in the public interest’.

    Ally that public interest test to internal policies driven by political pressure and adverse headlines, and you end up with inhumane decision-making. Or, as I put it in yesterday’s thread on the same subject: we must destroy this woman to save this woman.

  16. Edward, do you think the ultimate aim of the CPS, under its current management, is to reduce the burden of proof, particularly in sex cases? Or is there another aim in play here?

  17. SMFS makes a reasonable person point. There was a case years ago when a bunch of soldiers made some local chick airtight and she went to the police afterwards. The soldiers insisted she wanted it, but a lot of people quite reasonably said that they guys should have been smart enough to know that if you’re on a woman like that who is drunk, there could be some repercussions. I’ve backed away from a young woman who was obviously blind drunk and seemed to be swinging between wanting it badly and unconsciousness.

  18. Tim N, “airtight”. Wow, that’s a new one. The marvels of the English language.

    I heard it from two of the filthiest perverts I’ve ever known – university mates who I saw after more than a decade at a wedding. They elected to tell me the story in which they used this term when stood in the church awaiting the bride. Even I thought that was all wrong.

  19. magnusw, I think the ultimate aim is to ensure allegation = conviction.

    I think they’ll probably try to achieve this by abolishing juries in such cases.

    I also suspect the CPS is angling for wider powers of retrial in the event of an acquittal.

  20. SBML, indeed. Public interest tests are at best a crock, at worst carte blanche for self-righteous authoritarianism.

  21. Useless, subhuman cunt.

    This is another golden opportunity to remind journalists that they are trash. Anyone who slandered Evans for being unwise enough to fuck a very easy slag should no longer have a public Twitter.

  22. OT but in the spirit of dodgy prosecutions:

    A former SAS sergeant has said he is being investigated for murder after admitting he shot dead enemy fighters in what he called a “mercy killing”.
    Colin Maclachlan, 42, from Edinburgh, wrote about how he had killed “two or three” mortally wounded enemy soldiers in Iraq in 2003 in a new book.
    Killing mortally wounded soldiers is against British military law and the Geneva Convention.
    The MoD would not comment on the reported military police inquiry.
    ‘Pleading’
    Sgt Maclachlan said the killings took place on the Syrian border in March 2003, where an SAS squad fired rockets at enemy units. After the attack Mr Maclachlan discovered two Iraqi soldiers who had been disembowelled and another that had lost three limbs.

    He wrote: “Special Forces operatives quickly put them out of their misery, rather than leaving them to die slowly and in agony.”
    http://www.bbc.co.uk/news/uk-37670794

    In their book Don’t Cry For Me Sergeant Major, the authors tell a similar story following the capture of Goose Green when a mortally injured Argentinian PoW who was in agony was shot, to the thanks of the other PoWs.

    Of course no Twitter to put pressure on the authorities. And no CPS needing to pander to the latest moral Twitter storm.

  23. Tim Newman – “Didn’t they put a woman in charge?”

    Could be worse. Demographics means that a Nigerian will be in charge soon enough. Maybe a Nigerian woman. Imagine what the CPS will be like with Dianne Abbott in charge.

    Paul Rain – “Anyone who slandered Evans for being unwise enough to fuck a very easy slag should no longer have a public Twitter.”

    I good thing I don’t have Twitter then. Because he was a c*nt. What he did was within the law, but there is no way it was right.

    Bloke in North Dorset – “OT but in the spirit of dodgy prosecutions”

    The people who run this country hate us. They have been persecuting British soldiers for a generation without, as far as I know, a single conviction. Why anyone would actually volunteer to protect these scum escapes me.

  24. So remove her name from the stand in Sheffield United’s ground. It’s not her stand; she doesn’t get to set conditions.

  25. @SMFS

    I’ll be honest. I wasn’t there in that hotel room. So I can’t say what he did was right or not. Some girl begged me to fuck her, I probably would. I don’t know if that’s what happened. Neither do you .I suspect that athletic rich young men are rather attractive to young women. So I expect they get a lot of opportunities. To be honest I was a amateur athletic rugby player at a moderate level of the game and I found women pretty easy to pick up. Certainly I do not claim any credit for that. But if any drunk girl woke up the next morning with regrets, that doesn’t make me a cunt (why not just type the word?). And the girl in this case didn’t even wake up with regrets. It’s sex between young people. That’s all. “No way it was right” Sorry? You think he should have asked to marry her first?

  26. I also thought Anna Racoon summed it up pretty well.

    And yes, the left has spent decades trashing the idea of respectable, gentlemanly behaviour, and agitating for the freedom for women to get drunk, take drugs, and have sex with whoever they please, so they can hardly complain about the results of the success of their campaign.

  27. One of the twin myths keeps being put as unchaste people aren’t more likely to have consented. Better put this is, we don’t want juries to make their decision on past history because unchaste people can still be raped. But it also reveals why there still has to be an exception. Because I had consensual sex several times in my life with A, B, C and D does not mean In anyway I consented to sex with F. Therefore if i say i did not consent to sex with F do not bring before the court my sexual history with ABCD into the court. If I can’t remember what happened, surely the exception is there to determine whether sex in a hotel room with footballers is the type of thing you would do. If it’s not then woe to F if it is then F in the absence of other evidence to the contrary is entitled to put it to a jury.

  28. @SMFS

    “And the fact that she had to be helped to walk suggests ungentlemanly behaviour even if he has reasonable doubt.”

    Well thank goodness Evans had chance to review the CCTV footage from which the court learned that she was unsteady on her feet before he met her for the first time, prone in a hotel bed. Otherwise your moralising might look a bit silly.

  29. Andrew C – “Some girl begged me to fuck her, I probably would.”

    So would I, I expect. That is not what I am objecting to. He got a rather extreme sexual performance from a girl who was so drunk she remembered nothing. So drunk there is video footage of her being helped to walk back to his hotel room. So drunk she lost her purse.

    I am happy to accept he *might* have thought she was consenting. It is possible. But I don’t think this is particularly outstanding behaviour from these young men.

    “But if any drunk girl woke up the next morning with regrets, that doesn’t make me a cunt (why not just type the word?).”

    True. But that is not what happened.

    “You think he should have asked to marry her first?”

    No, I think he should have married her first. And not had sex with her immediately after another man who was still in the room. While two other men watched. Hey, call me old fashioned. However none of that matters as I accept my values are not everyone’s.

    What I think does matter is that most of us would agree that if your mate gets a totally drunk girl back to your place, then gives you a ring asking you if you want a turn, perhaps you should just say no. Some things I think are extreme. I would hope this is not one of them. Does anyone seriously think otherwise? How drunk does a girl have to be before you would think twice?

  30. Nemo – “Otherwise your moralising might look a bit silly.”

    It might. Are you saying that he did not take the time to have enough of a conversation with her that he might notice she was too drunk to walk properly?

  31. @Hallowed Be,

    No: the exception was applied not to question the mores of X but to corroborate Evans’s assertion of the manner in which she implied consent; it was not to reflect on morality but to establish fact – was Evans’s description of her words and deeds by which he assumed consent plausible, and in this case the judge found the descriptions provided by two other sexual partners to be too similar to be mere coincidence that Evans should say the same that he allowed the evidence to be presented to the jury.

    It’s somewhat wry that the evidence was presented only in relation to the veracity of Evans’s description of events, yet those ranting about her character being trashed are the ones actually making it a character issue.

  32. @SMFS

    OK. So because he isn’t as old fashioned as you that makes him a cunt?

    Maybe she desperately wanted to be shagged by a second bloke while being watched? I don’t know. Hate to break it to your morality but I had an affair with a married woman who loved given blow jobs to strangers while I watched.

    Maybe Ched was drunk? Or tipsy? Are you saying girls must be protected from drunken behaviour and men condemned?

  33. Andrew C – “So because he isn’t as old fashioned as you that makes him a cunt?”

    Seriously? My point is so hard to understand? Despite me stating it clearly half a dozen times? You seriously think that f**king a girl too drunk to walk properly, too drunk to remember, is sterling behaviour? Yes, it may be legal but is it really something you would do or want your son to do?

    “Maybe she desperately wanted to be shagged by a second bloke while being watched? I don’t know.”

    Maybe she did. How would he know? Do you think it is really too much to ask that he find out first? You know, talk to her, perhaps in a nice relaxed settling, over dinner. I know, I know, the younger generation doesn’t do that. But perhaps they should.

    “Hate to break it to your morality but I had an affair with a married woman who loved given blow jobs to strangers while I watched.”

    Class. How long did you know this woman before you got off watching her blow strangers?

    “Maybe Ched was drunk? Or tipsy? Are you saying girls must be protected from drunken behaviour and men condemned?”

    I have not avoided condemning her behaviour. But no one charged her with anything. Maybe he was drunk. He doesn’t seem to have used that as a defence so perhaps not. It would be mitigating.

  34. @SMFS

    Please tell me that’s self-deprecating absurdity to obfuscate you earlier silliness. Because of course when you walk in on a mate and some random girl in bed together you engage her in conversation to satisfy yourself about her walking. Any particular topic you can suggest that would both keep the mood right and be a good indicator of perambulatory reliability?

  35. Nemo – “Any particular topic you can suggest that would both keep the mood right and be a good indicator of perambulatory reliability?”

    How about “would you like to have sex with me while three of my mates watch?” Are you now suggesting that they did not exchange words? Wouldn’t that be, you know, a little rape-y?

    I do not agree with the affirmative consent laws but I think that someone is probably required to make a minimal effort to ascertain consent before sticking his d!ck in someone else.

    I am amazed at some of the positions being taken here. No one is more opposed to the rape laws and the way they are used these days than me. But seriously people what are you trying to defend? How about if she was unconscious? Would that have been fine with you all?

  36. She presumably smelled of booze, kebab and sick. She must be quite a looker to overcome those demerits.

  37. SMFS, i think the word you’re groping for is ‘caddish’, even if it was only towards his girlfriend.

    I also think you’re talking at cross purposes.

    You’re talking about standards. A certain idea of decent behaviour. Largely, others are talking about the application of law.

    Personally I find the event in question tawdry and rather disgusting. But that’s the realm of private sexual conduct, none of my business. I feel sorry for Evans’ girlfriend, for the ‘complainant’ and, yes, for Evans who, however much a cad did not deserve the destruction of his career and two years’ chokey.

  38. @SMFS

    But she wasn’t unconscious so I fail to see any point whatsoever in your raising it. She was conscious enough to encourage Evans in clear English* – “Give I to me harder”, or something similar. As to “I am amazed at some of the positions being taken here.” – naked, are in the air seems the one that matters.

    For myself, I’m only interested in the truth of the matter and clearing away some of the idiocy, hence my comment on yours. There’s all kinds of wrong in this story, but getting the analysis wrong almost guarantees getting the prescription wrong too.

    *Rhuddlin-ish

  39. @Edward Lud,

    “She presumably smelled of booze, kebab and sick.”

    From the evidence presented, it appears Evans was in a position to minimize those effects.

  40. @Nemo – ok yes you’re right, difference between type of thing I would do, to the type of thing I would say (if I was consenting).

  41. Nemo – “But she wasn’t unconscious so I fail to see any point whatsoever in your raising it. She was conscious enough to encourage Evans in clear English* – “Give I to me harder”, or something similar.”

    Well no, you don’t know either of those things. We have no idea what she said or if she was conscious. Which means Evans gets the benefit of the doubt in Court. No more.

    The point escapes you. I don’t know why. Even if she did encourage him, in clear English, it could still be rape if he knew she was impaired. Not that it matters.

    She seems to have been drunk enough for sensible men to think twice. For decent men to think twice. I am sorry to see you find that hard to grasp.

    “For myself, I’m only interested in the truth of the matter and clearing away some of the idiocy, hence my comment on yours.”

    Not interested enough to become acquainted with the basic facts.

    Nemo – “From the evidence presented, it appears Evans was in a position to minimize those effects.”

    You mean quick? Uncommunicative? Uncaring? What?

  42. Edward Lud – “At the stern, not the bow.”

    They must have better kebabs around her part of the world than they do around mine.

    Not exactly easy to have a conversation with the girl, I suspect. As she seems to have been otherwise occupied. Getting consent must have been a little difficult. Given he just came in and, well, came in. But the good news is that Nemo thinks he did not need any consent at all.

    Also makes me suspect the words those nice young men said she said after someone offered them money. I mean, a little difficult for Evans to have heard them while her mouth was, well, full.

  43. You’re correct: we cannot know with absolute certainty that she was conscious and said that. But the judge was sufficiently satisfied that Evans’s assertion that she said that was true that he allowed the exceptional presentation of testimony regarding X’s previous sexual activity to be presented to the jury, who also found it sufficiently plausible to acquit. Nobody who was there has ever disputed Evans’s claim that X said this, and it was the unlikeliness of Evans coincidentally inventing the words and position which were so similar to words and position described by X’s former sexual partners that it was the sole basis of the retrial in the first place.

    That position was specifically quick, uncommunicative or uncaring – it was doggie. And that’s usually the best sexual position to minimize the effects of booze, kebab and sick – assuming it’s not your own. And, candidly, I think I’ve displayed a lot more familiarity with the facts of this case than the fool who talks of assessing a woman on the basis of what was only known by recovery of CCTV recording.

    What y

  44. The CPS –like most other institutions in Western society have been captured by cultural Marxism.

    They all need to be Purged of the creatures of the left.

  45. SMFS,

    “The point escapes you. I don’t know why. Even if she did encourage him, in clear English, it could still be rape if he knew she was impaired. Not that it matters.”

    Maybe we should nullify all contracts in late-night curry houses then, as clearly that bloke who thought he wanted a curry didn’t after it arrived and he fell asleep on a table? Or let drunk drivers off who gained extra confidence to drive drunk? Or let blokes off who start a fight once the lager is talking?

    If your judgement is impaired by alcohol and you ask a bloke to fuck you, tough shit. You are responsible for your actions.

  46. Cont’d:

    What you mean by ‘rape if impaired’ is beyond me; I’m not aware of any impairment to consent other than totally beyond comprehension. If you’re now saying rape is to be a consequence of inebriated poor judgement, have you considered the implications? What would be the legal standard that a man would have to be satisfied before sleeping with a woman – blood alcohol level, to be ascertained by breathalyser? Is a woman now to be deemed incapable of independent decision-making after a glass of wine?

    And now I see you claim to know what I think, though you seem barely able to read, and even less able to comprehend. Perhaps if you removed your head from your arse you might see things a little clearer.

  47. I cannot see how this case was ever brought. If she was too drunk to consent she couldn’t have consented to sex with the other bloke. The fact that they did not charge him means they shouldn’t charge Evans

    I am looking forward to all those who demanded he not be employed after his release compensating him for his loss of earnings

  48. “And the fact that she had to be helped to walk suggests ungentlemanly behaviour even if he has reasonable doubt.”

    If I recall accurately, the CCTV in the hotel reception showed her walking back to the door alone, steadily and quickly although she was wearing high heels. She then bent down to pick up the pizza box that she’d left outside when she got out of the taxi and walked back in with it to go to the bedroom with Clayton whatever his name is. Did anyone else see it?

  49. “But her level of alcohol consumption is her responsibility.”

    B in Wilts is right. Aristotle held that if you choose to get drunk, you are responsible for your actions when drunk; and that notion held sway, as far as I can see, for some 2500 years in the West. Yet, in recent decades, the law here has sought to use drunkeness as an excuse. If some drunken idiot dives into my empty swimming pool, I can be held responsible for his injuries, if I am deemed not to have secured it adequately. If I top the wall around the pool with broken glass, and the drunken idiot lacerates himself and bleeds to death, I might well be held responsible for his death.

  50. Another point which I think is worth making relates to the old principle of open justice. The idea was that proceedings in court should be public, for the very good reason that daylight is the best antiseptic, and the wider the public knowledge of a particular case, the greater the chance of relevant witnesses coming forward, to the potential benefit of prosecution and defence.

    Of course, the anonymity afforded to this girl, quite aside from the obvious unequal treatment as between ‘complainant’ (as noted above, she did not, in fairness to her, complain) and defendant, meant that witnesses relevant to his defence did not, at first, come forward.

    So, again, she had to go through the ordeal of a trial twice, due to a measure supposedly intended* to protect her.

    * Actually intended to insulate the Crown’s case against antiseptic.

  51. Perhaps m’learned friend Mr Lud can elucidate for us why, if inebriation vitiates consent, it doesn’t also reduce or destroy mens rea in the defendant. As I understand it, the answer is that it does, under certain circumstances (e.g. murder → manslaughter, possibly). But if you wake up next to a crocadillyhorrendapig having had a few too many shandies the night before that’s just a good anecdote; if she cries foul then you’re neck deep in the shit. The burden of assessing whether consent can meaningfully be given falls entirely on the man, even if his cognitive capacity is diminished. That seems unjust.

    From personal experience, the only time I ever messed about with someone in an existing relationship was when I was hammered, but even then I wouldn’t have been up for anything even remotely like what Evans did. I never played away, even when I was drunk (I did plenty of other stupid things while pissed, but not that).

  52. BiCR, good question.

    If I complain that Mohammed has burgled me, that I know it was Mohammed because I recognise him and I saw him do it, and Mohammed’s defence is that yes he did come into my home and take x because I told him he could, and I was drunk when I said this, have I consented to what would otherwise be burglary? Does my drunkenness mean that Mohammed acted dishonestly, taking advantage of me?

    I think much would depend on whether my drunkenness was evident to Mohammed, and whether he would in those circumstances have reason to think that I would not give permission were I sober. But these would be questions of fact and degree for the jury to assess. My inebriation would not automatically absolve or condemn Mohammed.

    Turning back to rape, if you have a drunken man and a drunken woman, both equally impaired, who get to know one another in the Biblical sense, and she then cries rape, why should her blottoness absolve her of responsibility when his does not?

    I do not know (although I think most juries would refuse to convict … not that that is a terribly encouraging answer).

    Besides, rape is, as far as I know, unique in being in law an offence capable of being committed only by one sex: men. I have not checked whether there are any decisions involving bull dykes with dildos, but the statute refers to “his penis”, so parliament’s apparent intention was to criminalise penetrative male sexual aggression.

    Saying all of that, I don’t do this kind of work, so I may well be talking out of my hat. Perhaps there are plenty of very good justifications for the foregoing.

  53. PS, it’s not just rape, btw. Government has for decades been thinking up new and inventive ways of screwing defendants over. The trend has accelerated in the last 20 or so years, but it’s nevertheless a long-standing trend. So whilst I have no difficulty perceiving a strain of pernicious man-hating in all this, it’s by no means unique to rape allegations.

    On the other hand, contrary to Helena Kennedy’s ridiculous book of about 20 years back in which she claimed women are more harshly treated than men by the criminal justice system, female defendants are routinely pregnant or ‘looking after’ children and as such are given a pass by the CPS, which uses them as bargaining chips to get name co-defendants to plead guilty. Or, if they do call to be sentenced, the patriarchy of name judges hates sending them into durance vile.

  54. There can be quite a difference between consenting at the time and not remembering next day.
    Many times have been out with friends and they have got merry, sometimes they have done stupid stuff or gone off with some girl or guy (have both male and female friends who drink). At that point you would happily say they were merely merry, perhaps inhibitions reduced but perfectly able to say yes or no.
    Then next day be unable to remember any of it.
    Have seen it with over a dozen friends, probably over the years hundreds of instances. Including one friend who has slept the night on our sofa and no clue what she did the previous night – but acted pretty sober at 3am.

    There is quite a difference between someone so drunk they are incapable of deciding to have sex and someone so able
    to have and enjoy sex but unable to recall details the next day.
    Different people react different – I have had plenty to drink but always able to recall the night before no matter what. And always able to consent.

  55. @Edward, thanks for your earlier response. It’s both remarkable and scary that a member of the legal profession thinks the CPS’s political aim is to remove the entire legal process from the legal process, as that seems to be the implication of your comment. The whole thing then becomes simply an administrative process, accusation = charge = conviction, no investigation, no troublesome jury.

    There are a few dictators who would blush at attempting that.

  56. @Edward Lud: I think the most horrifying thing is strict liability offences. Those seem completely counter to justice. I mean, what happened to actus non facit reum nisi mens sit rea? There was that bloke who found a discarded shotgun, handed it in to the fuzz and got done for firearms possession. If that’s what the law says, it’s not an ass, it’s a demon.

  57. magnusw, the CPS is an appalling organisation. A sort of low-rent Roland Freisler, made all the worse by the fact that most of its minions know not what they do. My sadness right now is that this comes as a surprise to you.

    BiCR, yes, yes and yes. Although if memory serves we have the Victorians to thank for strict liability offences.

    If I could achieve one thing only as a lawyer, it would be to get people thinking rigorously about what criminality ought to mean in law, and what the purpose of the criminal justice system ought to be.

  58. BiCR, I don’t know much about the firearms offences, but there are other strict liability offences (though more typically civil matters) that I don’t have a problem with, in particular where Person A does something for profit that puts Person B at risk, in such cases Person A should pay the price even if they did all in their power to prevent injury to Person B.

    Eg, Person A is driving their car, it kicks up a stone and Person B loses an eye, there was no harm or fault on the part of Person A, but it is still right that they pay because they put person B at risk for their own benefit.

  59. Given that the CPS are a bunch of incompetents, only lowering the burden of proof will get them closer to their targets.

    The CPS hired only the most useless and gormless of criminal attorneys when they were first set up. When the idiots in charge realised they only had the stupid, being idiots, they increased the pay rate to hire better people, thus ensuring the useless people they originally hired would never leave and also making reform impossible – the only solution would be to close it down and start again. Needless to say the present head of the CPS is one of those hired into the CPS when it was first set up. Her bio does not suggest someone of ability

    https://en.wikipedia.org/wiki/Alison_Saunders

  60. magnusw: there is a world of difference between strict liability for civil cases and for criminal cases. For a start, your example is something that can be insured against, and typically would be. But strict criminal liability in your hypothetical would be like Person A’s car kicking up a stone, Person B losing an eye, the CPS charging A with GBH and the beak saying, “sorry mate, strict liability, law says you have to do ten years.”

  61. magnusw, what is an offence, and how does it differ from a civil wrong giving rise to a civil cause of action?

    ken, the abilities of individual CPS staff are neither here not there. What must be grasped is that it, assisted by the police, is the officially-sanctioned enforcer of state ideology. Sure, one can wag the finger at Me Saunders as a man-hater, but she’s irrelevant. If it was not her it would be someone else.

    Why do we have ‘offences’ where there is no named complainant? Or, hells bells, complainants who haven’t complained?

    If Smith is harmed by the criminal conduct of Jones, however we are defining criminality, why should not Smith himself bring his case?

  62. @edward lud

    I can see where you are coming from – you see the ideological idiocy. What irks me is that the CPS is terrible at the regular prosecution job – lost files, poor process etc. The organization is beyond repair, too riddled with incompetents to recover. A lot like the SFO.

  63. ken, like all publicly-funded organisations it is badly underfunded. Sure, peanuts and monkeys. Yet it also has diligent, capable staff.

    The problems with the organisation are a feature. They can’t be fixed.

    See also: NHS, state schools, and so on.

  64. It, and the underfunding is a prime driver of the various initiatives to make it easier to prosecute people.

  65. Edward,

    “If I could achieve one thing only as a lawyer, it would be to get people thinking rigorously about what criminality ought to mean in law, and what the purpose of the criminal justice system ought to be.”

    Perhaps you should start your own blog?
    I’m sure you’d start with quite a readership the first time your link appears here.

  66. Ed Lud

    Minor point of little interest, but rape is not solely a male offence; it may require a male for the penetrative penis, but a woman acting in concert with the man or men can also be guilty – as happened in a Kilburn gang rape about twenty years ago. I’d provide a link but google returns a depressingly large number of more recent episodes to wade through.

  67. Nemo – “You’re correct: we cannot know with absolute certainty that she was conscious and said that.”

    So you lied about what you claimed you knew. Fine.

    “But the judge was sufficiently satisfied that Evans’s assertion that she said that was true that he allowed the exceptional presentation of testimony regarding X’s previous sexual activity to be presented to the jury, who also found it sufficiently plausible to acquit.”

    Actually that is backwards. In order to test whether what he said was credible, testimony of the girl’s behaviour was allowed. And the jury acquitted.

    “And, candidly, I think I’ve displayed a lot more familiarity with the facts of this case than the fool who talks of assessing a woman on the basis of what was only known by recovery of CCTV recording.”

    I get it. You’re Ritchie! It all makes sense now.

    Bloke in Wiltsire – “Maybe we should nullify all contracts in late-night curry houses then”

    I am sorry but you think that if I get someone sloshed at a business meeting and then get them to sign a contract it wouldn’t be voided in nanoseconds?

    “Or let drunk drivers off who gained extra confidence to drive drunk? Or let blokes off who start a fight once the lager is talking?”

    We do. Both of those. Perhaps we shouldn’t. But getting in your car and killing someone while drunk is not treated the same as getting in your car and killing someone stone cold sober. Alcohol impairment is a defence in assault cases.

    “If your judgement is impaired by alcohol and you ask a bloke to fuck you, tough shit. You are responsible for your actions.”

    If she asked. I am not defending her actions. I am saying that Evans also had a moral obligation to make sure she was consenting. The more extreme the act, the more sure he should have been of the consent. How is this, in any way whatsoever, a controversial statement? If your son was at home and a friend rang up to say he had a really drunk bird around his place, and would he, your son, like a turn, what advice would you give him?

    Nemo – “What you mean by ‘rape if impaired’ is beyond me; I’m not aware of any impairment to consent other than totally beyond comprehension.”

    I noticed. So much is beyond you.

    “If you’re now saying rape is to be a consequence of inebriated poor judgement, have you considered the implications?”

    Suppose that a group of young men plan to go out, find a really drunk girl, and then all have sex with her. They text each other about their plans to f**k a legless girl so hard she cries. They find a really drunk bird. Who can’t remember anything in the morning. They all claim she consented. Do you think that perhaps their plans to find someone too impaired to consent properly constitutes evidence of rape?

    Wack – “I cannot see how this case was ever brought. If she was too drunk to consent she couldn’t have consented to sex with the other bloke.”

    I can’t see why they brought it either. But a drunk girl might reasonably consent to sex with one man. A jury will have to think how likely it is that she consented to sex with two – while another two were watching. Some people might find that harder to believe.

    Theophrastus – “Yet, in recent decades, the law here has sought to use drunkeness as an excuse.”

    Indeed it has. As we see with drunk drivers. We do not charge them with murder. Perhaps we should.

    Edward Lud – “Government has for decades been thinking up new and inventive ways of screwing defendants over.”

    That is certainly true. But rape is the worst area for this.

  68. Sorry if this has already been said somewhere, but isn’t the logical outworking of this case that women are forbidden from having sex when drunk? (If men cannot safely ascertain consent when women are drunk).

    Feminism and the laws of unintended consequences?

  69. SMFS,

    Candidly, you really are the most spectacular most spectacular dullard. If I called you a pendant I expect you’d seriously intone about jewelry. Regarding the testimony of prior sexual behaviour presented in this case I think you’ll find it’s you that is woefully ignorant: in order to allow this exception the judge must satisfy himself that it is beyond the bounds of coincidence that the behaviour described by the defendant should match that of the witness(es). Thus, if the defendant claims “She said ‘yes'” and former partners are found who also state “She said ‘yes’ to me too” then it be very unlikely to be admitted – ‘yes’ being so commonplace that the defendant could easily have guessed those words, and them adding nothing of worth to the case anyway.

    If, however, the defendant claims “She wanted to do it doggie and kept shouting ‘harder, harder, give it to me harder'” and ex-shags then come forward and state “She liked doggie best and hard – yelling ‘harder’ all the time, then this might satisfy the judge that it is unlikely to be coincidence and the testimony is allowed. Thus the judge applies a prior test to the evidence – as prescribed in law (http://www.legislation.gov.uk/ukpga/1999/23/section/41). Got that? The judge must satisfy himself that the evidence passes a probability threshold. And because you’re obviously thick as mince I’ll point out the obvious point that this has nothing whatsoever to do with the character of the ‘victim’ but only touches on the veracity of the defendant’s description of events by which he assumed consent to have been given. The jury then hears the evidence and delivers a verdict.

    You may not like it, you may think it’s immoral and the cads should be horsewhipped for defiling a lady’s virtue, but its the law, so tell it to the judge. But spare me your slow-minded pomposity, please.

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