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Complicated issues

Oliver Fortune returns to the fray

Ched Evans and his girlfriend Natasha Massey

As a spin-off from my piece yesterday on the sentence given out to Oscar Pistorius in South Africa, today I venture into equally difficult and complex waters by taking as my subject the current media cause célèbre of the release from prison of convicted rapist Ched Evans and the row over whether he should be allowed to return to professional football at all, let alone with his former club Sheffield United.

[As previously, I begin with a disclaimer or two. I am a man and acknowledge that – instinctively and/or unconsciously, without ever meaning to be sexist, which in any event is not my intention – I may naturally tend to a different view of things than a woman. I also have a degree of legal experience but I have no great knowledge of the facts of the criminal case involved, having picked up that which I have only from reading reports in the media.]

As I understand them, the bare facts of the case are that two professional footballers – Evans and a team-mate – as part of enjoying a ‘night on the town’, decided to see if they could pick up one or more girls with a view to having casual sex with them in a hotel room that they booked (without the hotel’s apparent knowledge) expressly for the purpose. In the small hours, Evans’ team-mate hooked with up a girl who had drunk a significant amount of alcohol and brought her back to said hotel, where first the team-mate and then Evans had sex with her. The footballers left the hotel room soon afterwards. The girl slept through until the late morning before leaving the hotel, by then aware that she had no memory of what had gone on the night before.

Both footballers were charged with rape. At the subsequent trial, Evans’ team-mate was acquitted but Evans was convicted and sent to prison. This, in bald terms, is where we have reached.

Again, as I understand it, and I admit might be wrong in my understanding – and here I am discussing only Evans’ case – the key issue was consent.

The legal position in England & Wales (whether stature or via precedence) is that, if a woman is sufficiently drunk that she doesn’t know what she is doing, by definition she is deemed to be incapable of giving consent to sexual activity.

This applies even if any man that she is with honestly believes that she isn’t that drunk … and/or (perhaps because he is also pretty drunk) he has either mis-read how drunk she is and/or has erroneously formed the view that she has given genuine consent to sex in that place, in that situation, on that night.

EvansIt seems that Evans, who apparently maintains his innocence of rape and may be trying to appeal his conviction, is challenging the notion that the female concerned was so drunk that she was incapable of giving her consent to what went on – in other words (presumably) he is claiming that she did consent to have sex with him … and therefore his conviction for rape was wrong.

I’m not saying anything more about the legal situation because I’m not sure of my facts and might be straying into the realms of speculation.

However, I have two comments to make upon the row that has arisen around this case.

The first is about the complexity of the issues surrounding the legal position that being incapable through drink renders a woman incapable of giving consent to sex. In effect, to a degree, this is a subjective standard. How drunk does a woman have to be before her state reaches this point?

There seems little point in specifying a number or type of drink consumed in deciding this point, simply because – plainly – different people vary in their susceptibility to the effects of alcohol.

The issue, surely, is simply whether the woman concerned is ‘out of it’, period. And who decides this? Is it the woman deciding the matter at some point afterwards (“I didn’t know what I was doing”)?

Perhaps, ultimately, it doesn’t matter because the law places the onus upon the man –  in other words, the law decrees “if in any doubt as to whether she’s ‘out of it’, don’t – you might be committing rape”.

As I mentioned above, these are complicated issues. There’s an added factor, too. Considering such a situation in the cold light of day – as indeed I am, full of black coffee in the wee hours and indeed as rape counsellors, women’s campaigners and even a jury sitting in the formality of a court room might do – is to bring a particular (cold, sober) mind-set to what went on. The very concept of two footballers – indeed two males of any profession – out on the prowl hoping and/or intending to have casual, probably sordid, sex with one or more susceptible girls – whether drunk or not – seems inherently depraved, disgusting and offensive to common decency.

As so it should. However, I bet that – up and down the land – it happens on a daily basis a lot more than any of us would imagine.

My second point – which may be unpopular with some ‘right-thinking’ people – is that I find somewhat skewed the venom with which women’s campaigners (to use a perhaps inadequate term as a description) turn on anyone who criticises, or hints at a criticism, of any female’s conduct in a situation leading to sexual assault up to and including rape.

I’m thinking in particular of BBC presenter Michael Buerk, for example, who – in trailing last night’s edition of The Moral Maze (on the issues surrounding the Evans case) on Radio 4 yesterday morning – said that nobody, including the girl concerned, “who was so drunk she could barely stand” emerges from this episode with any credit. He has been vilified for this comment since and the BBC has now issued a formal apology for his words.

I happily plead guilty to being a man here, but I do think that there is a degree to which any reasonable woman ought to take basic precautions when out and about.

This is not a popular view with feminist women’s groups – and indeed those of both genders who take the hardest possible line on issues of domestic violence and/or sexual assault up to and including rape – but I regard it as simply a matter of straightforward common sense. I’ll probably receive a bucket-load of criticism for even saying it here, but I don’t care.

I don’t accept the idea that women can go out for an evening with their mates dressed in short skirts, cleavage-revealing tops and high heels – with the added express intention of getting completely bladdered in the cause of having fun – without taking any responsibility at all for these decisions and actions.

To wear clothes which, inadvertently or deliberately, are designed to attract the opposite sex – and then drink significant amounts of alcohol, which by definition reduces one’s inhibitions – are choices tending to invite attention from males which, to one degree or another, may be wanted … or indeed, quite the opposite. Inevitably, there are risks involved. Just as there are risks involved in walking home along a deserted, ill-lit, lane, or crossing a busy road, or climbing into a lion’s cage at a zoo.

And there are straightforward precautions you can take against risks. Like not taking them, for example. Or at least toning down the things that might cause them.

That’s all I’m saying.


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About Oliver Fortune

A doctor formerly specialising in sexual health, Oliver has written widely on matters relating to sex, relationships and counselling. He is divorced and has one daughter. He is a keen skier and mountain biker. More Posts