Daily Telegraph, 14 October 2016
The judge who presided over the second trial of the footballer Ched Evans got it right: ‘This case has been conducted out in the public gaze,’ Mrs Justice Nicola Davies said as she discharged the jury. They had just cleared Evans of rape after deliberating on their verdict at Cardiff crown court for three hours.
Few cases have attracted as much attention as that of Evans. His conviction for raping a 19-year-old woman in 2011 was quashed by the appeal court earlier this year, leading to a retrial. Applause was heard from the public gallery following the ‘not guilty’ verdict and Evans sobbed as he embraced his girlfriend, Natasha Massey, who was involved in a high-profile campaign to clear his name. The jury at the retrial was not told that Massey sent a Facebook message about a £50,000 reward to a key witness, signing it with a kiss.
Evans has always denied rape, saying that he walked into a hotel room in Rhyl where his friend, the footballer Clayton McDonald, was having sex with the complainant. He said that McDonald asked ‘Can my friend join in?’ The prosecution claimed that the woman was too drunk to consent but Evans insisted that she replied ‘yes’.
He admitted in court that he lied to get a key for the hotel room and did not speak to the woman before, during or after having sex with her. His lawyers argued that the prosecution case was ‘built around the myth’ that the woman was too drunk to agree to sex.
His legal team asked for and was given permission to question the complainant at his new trial about her sexual behaviour with two other men, arguing that it was ‘so similar’ as to be relevant. That is one of a number of respects in which the Evans case is unusual - not least the fact that it has been going on for more than five years.
It comes at a moment when the subject of rape and the criminal justice system is rarely out of the headlines. Less than two decades ago, it was routine for complainants in rape trials to be questioned about their sexual history. But it was widely accepted that fear of being cross-examined about other, consensual relationships deterred women from giving evidence.
The law has since been changed in several respects, based on a recognition that complainants in rape trials are often vulnerable witnesses. Many people believe that the 1999 Youth and Criminal Justice Act outlawed questioning on these lines, not realising that the act contains significant exceptions. Some campaigners are uneasy that such evidence is allowed in some cases but not others, which means that a woman who makes a complaint to the police has no idea whether her sexual history will become an issue.
We already know that some of the protection put in place for complainants has not proved as effective as it should. They are entitled to lifetime anonymity but social networking platforms have been used to reveal their identity in some cases and even where they live, in defiance of the law. The abuse they have received, regardless of the verdict in an individual case, is an issue that the criminal justice system urgently needs to address.
No doubt the Evans case will also prompt renewed calls for anonymity for defendants in rape trials as well as complainants. It is based on a fundamental misunderstanding of rape, which is almost always a serial offence. Conviction rates in rape cases are low and falling, but what makes a difference is when more than one woman gives evidence. Often other women only come forward when a man is arrested and charged - and they realise it has happened to someone else. Granting anonymity to defendants would actively obstruct the process of getting justice for victims.
Critics of the present system also argue that cases take too long to get to court and complainants don’t get sufficient support. They say that the focus should be whether the complainant consented to sex with the defendant, not how she behaved in sexual encounters with someone else in different circumstances.
They also worry about opinion polls showing that sizeable numbers of people have harsh attitudes to women, blaming them if they danced with a defendant before the alleged rape or had been drinking, for instance.
The balance between the rights of defendants and complainants has been the subject of fierce debate for many years, and no doubt will continue to be so. But there is a legitimate anxiety about the effect of lurid publicity around high-profile cases. Justice will not be served if future victims fear the trial process so much that they are deterred from going to the police.