I have watched the sorry story of Ched Evans over the past years with increasing feelings of fear and anger. In 2012 he was convicted of rape following an events during an evening in Rhyl the previous year. During the trial I can recall my feelings, shared by many others, that this young man had unfortunately become a political symbol in the battle over the nature of rape and issues of consent in our society and had suffered a miscarriage of justice.
He was unfortunate because he was a high profile celebrity who was to be used in the battleground of the issue of consent. It was important to many who held partisan ideas on this issue that he was brought down so as to send a message to others. It did not matter that the grounds for his conviction were unsteady, through his trial social media clamoured for his punishment in a strident manner. After his conviction the general media also joined in with calls for further and extra-judicial punishment. Notoriously Caitlan Moran called that his life be “reduced to ash” in a phrase that sounds reminiscent of bringing back burning at the stake. Articles in the Guardian asked that he be denied any work after he served his jail sentence and that he treated like a pariah while Jessica Ennis wanted her name removed from a stand if Sheffield Football club considered re-employing him. Petitions were organised and companies boycotted all to ensure that he suffered well after he had served his time.
This may have been understandable had the crime been at the serious or severe end of the scale but this had never been suggested as the case. This was not an anger based on hearing of hurt or damage to an unfortunate victim but rather anger based on a desire to change our attitudes to the laws surrounding rape. An anger that was taking as its focus a case which many people could see was flawed and dangerous. Our society now has much more permissive ideas regarding drunkenness and promiscuity and this change has occurred at the same time as a broadening of our views of sexual abuse. This case was where these two issues collided; having a high profile international footballer at its centre allowed the flames of this debate to blaze much more brightly.
Fortunately Ched Evans did not passively accept his role in this drama and he and his family fought for an secured an appeal following which he was acquitted. Many have commented on the financial cost that was paid to fight for this appeal and retrial and this is an important point. It is a horrible thought that, had he not been a wealthy young man with plenty of money, he would not have been able to clear his name. Had he been a joiner or nurse then he may still have the stigma and shame of a rape conviction damaging his life.
But, even after the retrial and acquittal, many on the media will not stop trying to use them in their battles. Ungracious at best, and more commonly disbelieving, in their tone the media has tried to portray his acquittal as an error. The Guardian suggesting that it has set a precedent that future rape victims will be less likely to come forward, Julie Bindell called his retrial a “Rapists Charter” and the popular midday TV programme Loose Women had to issue and apology as their presenter Gloria Hunniford expressed her opinion that the jury got it wrong.
These statements are both wrong and counterproductive. Nothing has occurred in the re-trial other than the overturning of an incorrect decision. There is no change in the law but these statements themselves, by whipping up fear and uncertainty, might deter victims of rape pursuing their case. As Francis FitzgGibbon QC, the chair of the Criminal bar Association, has said :-
“There’s been a huge over-reaction to what this case means. The answer is not very much. The thing that troubles me is people saying it sets the law back 30 years and it’s a rapists’ charter. That is what is going to make people think they daren’t report what’s happened to them. Those cries of anguish are a self-fulfilling prophesy.”
The use of information about a complainant sexual history is controlled by Section 41. This has not changed and only allows its use in specific circumstances when it may prevent a miscarriage of justice. As Angela Rafferty QC added :-
“It is a disservice to victims of sex offenders to misinform them that the Ched Evans case has put the law back 30 years or has made it a rapists’ charter. That case has not changed the law. The law forbids questions about the previous sexual behaviour of a complainant in sexual offence cases, except in highly unusual circumstances where the trial would be unfair, and a wrongful conviction might result, if the evidence was not given.
“The court of appeal thought Evans’s was such a case. Cases like Evans’s will remain wholly exceptional. There is no relaxation of the rule against this type of questioning.”
A more worrying trend is the oft-repeated phrase, especially on social media, that he has “not been proven innocent“. This is not how our law works. One never has to prove one’s innocence, the court has to prove ‘beyond any reasonable doubt’ that one is guilty. If the court does not prove this then one remains innocent. The presumption is that of innocence. This is an important foundation of our legal system and is seen as a Universal Human Right and is Article II of the UN declaration of human rights :-
“(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.“
This is a vital safeguard as it defends the weak against the state. We do not have to prove our innocence our guilt must be shown beyond doubt. In the days of the inquisition or under totalitarian states it may have been necessary to demonstrate that you were good and free from evil but, thankfully, no longer.
To question this principle is very dangerous and could start to undermine our fair society. I fear that this is part of a campaign to weaken this safeguard. It is related to the #Ibelieveher movement when people propose that the complainant should be considered true before the trial has run its course and evidence been tested. This again takes away the presumption of innocence and is part of a very worrisome trend.
Though I ams ure many of the people suggesting these changes do so with the best of motives, and none of us would want a rapist to escape justice, but tampering with the fundamental safeguards of the legal system and permitting injustice and miscarriages to occur make us all less safe in the future.