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Sunday, 23 November 2014

The point not made or not taken at the trial of Chad Evans and the obviously perverse verdict of the jury

'When he came to pass sentence the judge said: ".... [the complainant] was in no position to form a capacity to consent to sexual intercourse, and you, when you arrived, must have realised that."

That accurately reflected the way in which the verdict should be interpreted. No force had been used on the complainant and no injury had been caused in the course of the rape. But the long-term psychological consequences to her could not be ignored. The judge took the view that they were not lessened by the fact that she had no direct recollection of the events.'

https://www.crimeline.info/case/r-v-ched-evans-chedwyn-evans

Why did the jury decide that black footballer was not guilty of rape but that the white footballer was?

If she was too drunk to give consent to Ched Evans, was she also too drunk to give consent to Clayton McDonald?

But Clayton McDonald was acquitted.

It is possible that she could have consented to sex only with McDonald and not Evans, but it was Evans' claim that he did obtain her consent by doing as she asked, ie "lick her out", which he did.

http://www.mirror.co.uk/news/uk-news/ched-evans-and-clayton-mcdonald-rape-798633

Evans told the court he watched them having sex for about "10/20 seconds" and then McDonald "asked" if his mate could "get involved".

"Then she looked at me and said yes," Evans said.

The footballer then said he carried on watching "for a minute or two" before McDonald got up to close the bedroom curtains, as there was "giggling" coming from the window, where Evans' brother and a friend were trying to watch from.

Evans said that when McDonald got up the girl asked him to perform oral sex on her, which he did.

He said: "I performed oral sex on her for maybe two or three minutes and then she turned over on all fours and then asked to be f***** basically".

He said the girl asked him to "f*** her harder".

"They were the words she was using," he said.

Evans then said they changed position so he was facing her while McDonald "watched for a bit" before leaving.

"As he left the room we stopped having sex," Evans told the jury.

http://chedevans.com/key-and-undisputed-facts

Having obtained the keycard, Ched walked down the corridor and entered Room 14. From this point onwards it should be remembered that the only evidence as to what happened in Room 14 came from the accounts given by the two accused men who were in the room and the night porter who was listening at the door outside. The complainant claimed that she could not remember anything of what happened in the room.

On entering the room Ched said that he did not know what to expect but he quickly realised that his friend, Clayton, was engaged in sexual intercourse with a girl. In his evidence he stated that the door clunked behind him and this caused both Clayton and the complainant to turn around and to look at him. He said that he made direct eye contact with the complainant. At this point according to the evidence of both Clayton and Ched the question of whether Ched could “join in” was asked of the complainant, they both said that she replied with a positive “yeah”. Both of the accused thought that the other had asked the question but both agreed that the question was asked.

Whilst this was happening, outside, Ched’s brother and his friend had gone to the window of Room 14. They were fooling around, giggling and laughing (caught on the soundtrack) and attempting to film on a mobile phone what was happening in Room 14. They made two short clips but did not obtain any discernible footage.

According to the testimony of Ched, he watched his friend having sex for a minute or two and then, after Clayton had moved away from the bed, he engaged in sexual activity himself with the complainant on the basis that she had agreed to his participation by replying “yeah” to the request of whether or not he could join in.

Ched stated that the complainant asked him to perform oral sex upon her by telling him to “lick me out”. He did so and then followed this act by having intercourse with her. This was all corroborated by Clayton. Both men stated in evidence that the complainant was verbally encouraging Ched to have more vigorous sex with her by calling out to him on numerous occasions to “F**k me harder”. Both men also said that she was in control of the situation and activity as she was changing the sexual positions herself. (It is worth noting that the complainant stated in her police interviews that “licking out” is the phrase she understands to mean male on female oral sex).

Clayton decided to leave the room. He went and sat in the reception area. He spoke to the night porter and requested that he ‘keep an eye out’ for the girl in Room 14. Unbeknownst to Clayton, the night porter had only minutes earlier been listening at the door of Room 14 because he was concerned that the occupancy of Room 14 was more than the hotel rules allowed. The night porter stated in Court that he had heard the sounds of people having sex – when pushed on this he said that he had heard both female and male voices “squealing, panting and groaning”. He also said that he heard a male voice ask for oral sex in a “playful” manner.

In his evidence, Ched stated that when his friend had left the room he had suddenly become nervous that his girlfriend may ring him. He spoke to Clayton on the phone who was by now outside of the hotel. He said he stopped having sex with the complainant and decided to join his friend outside. He left the complainant on the bed who he said huffed in disgust that he was leaving her and pulled the covers over as if to go to sleep. Ched left the room and then left the building by the fire exit.


McDonald confirmed that he was in the room while Evans complied with this request so Evans' testimony was CORROBORATED.

The complainant herself could not say one way or another if this happened because her case was that she had no memory of that evening AT ALL.

Now, why would the jury COMPLETELY IGNORE this point?

The defence either did not make that point or it was not taken.

 If the defence lawyers did not make that point they must have been incompetent or negligent.

If the point was made but not taken then the judge was guilty of clear bias against the defendant.

Basically, the complainant was saying that she was not the sort of woman who would accompany a strange black man she has just met after falling over drunk in a kebab shop and then have sex with him and his friend, one after another, in the same room.

If that was what she was claiming then her sexual history should have been examined more closely.

Also, if she had not known they were professional footballers, would she have called the cops?

http://chedevans.com/key-and-undisputed-facts
According to her evidence, the complainant awoke on Monday **th ***** 201* in the Premier Inn totally unaware as to how she had got there. Having searched for her bag and mobile phone she then proceeded to Reception. Her mother picked her up and took her to her friend’s house. Later that day she returned to work. At the end of her shift at 11pm she went to the reception of the Premier Inn and requested to see CCTV footage to see, she claimed, if she could find out how she got there earlier that morning. She did not get to see the CCTV footage but was told by the receptionist that the room had been booked and was occupied by footballers.




Why was the complainant's previous sexual history NOT admitted?

10 comments:

Norman said...

The complainant's previous sexual history was not admitted because it is irrelevant. In the same way that Clayton and Ched's sexual history is irrelevant.
Judging by your comments and tweets you have a very negative view of the compliainant. Correct me if I am wrong. Does that inform or bias your conclusion that Ched is innocent at all? Others have chosen to say that she isn't a victim in this case. You may have specifically said this in one of your numerous writings on the subject. There is no sympathy for her from Ched's supporters citing her actual or alleged past history and conduct.
Let's talk about Ched. His claim is that he is the victim of a gross miscarriage of justice and is innocent of the crime of rape. He has tried to appeal which was denied through the lack of any new evidence. He has submitted to the CCRC who will look at the case and re-evaluate if he can appeal again.
I afford the same level of sympathy for Ched Evans regarding his claim of a miscarriage as has shown to the complainant in the case from you and his supporters.
Because of the following facts of the case.
1. He obtained the key card to the room through deception.
2. He entered the room without consent from the occupants.
3. The hotel porter gave testimony that the complainant was extremely drunk. The word extremely is omitted from chedevans.com but is cited on the crimeline.info notes. Disclaimer: I haven't read the exact court transcript for clarification as to whether these were his actual words.
4. Both Ched and Clayton testified that the complainant gave consent for sexual intercourse and that she was not very drunk.
5. After Clayton has left the room he spoke to the night porter and asked him to look after the girl in room 14 as she was sick.
6. Ched stopped having sex with the complainant and left the room leaving the hotel by the emergency exit where he met up Clayton outside. They left the hotel together.
7. The complainant wakes up the next morning and is naked, confused and has urinated the bed.

Number 5. is the key one for me. What did Clayton mean by this? Sick? According to both of their testimonies she was conscious enought to have just consented to sex with both of them yet he was concerned enough to ask the porter to look out for her? Not concerned enough to stay in the hotel room with her though. A hotel room that had been booked for him because there wasn't any accommodation elsewhere. However some obviously became available. Thankfully the complainant didn't choke to death on her own vomit.
If you are intent on judging the complainant by her actions don't be surprised by me judging the accused by theirs.

Claire Khaw said...

What do you mean "No 5 is the key one" for you? I really don't see how this is at all relevant to whether Evans raped the woman.

It is clear to me what Evans and his mates were doing that evening: picking up women and "roasting" them for sport.

It is also clear that the 19 year old complainant was not exactly a virgin as you would not expect a woman to be if she regularly does the kind of thing described below.

"The complainant left the kebab shop and walked up Queen Street. CCTV footage outside the kebab shop and on Queen Street showed her:

unstable on her feet walking up Queen Street;

unstable on her feet crossing the road;

squatting in a doorway;

urinating in a doorway; and

reacting to a car that flashed its lights at her."

http://chedevans.com/key-and-undisputed-facts

As you must already know, sexual intercourse with consent is not a crime.

It also follows that "roasting" with consent is also not a crime either, otherwise it would be gang rape.

As I have also pointed out, Evans claimed he had obtained her consent by "licking her out" as she requested, after which he then proceeded to have vaginal sex with her.

This means Evans *believed* he had her consent.

This was also CORROBORATED by Clayton McDonald who witnessed this.

The complainant on the other hand offered no evidence because she claimed she remembered nothing.

This is hardly guilty BEYOND ALL REASONABLE DOUBT, is it?

Claire Khaw said...

Of course, it is possible that they were both lying, but professional footballers are not men so desperate for sex they need to rape women to get sex.

http://www.theguardian.com/football/2004/nov/15/newsstory.sport7

"Amanda Hughes" says in The Guardian:

"On one occasion I drove from London to Manchester to meet a United player in a hotel car park. He handed me a wad of cash to go and book a room - which I did, and then waited there for him. We both knew that if I wasn't prepared to, there were hundreds of other girls out there who were."

One would expect these footballers to be sexually promiscuous because they were constantly offered no-strings by football groupies. This kind of sexual history is therefore not relevant to proving that these men were likely to be rapists unless they both had a conviction for rape, which they did not.

As for the complainant, there is more than a suggestion that going clubbing and having recreational sex with strange men she had just met the same evening was something that she and her friends regularly enjoyed.

http://chedevans.com/key-and-undisputed-facts

'Whilst in the foyer, the night porter gave evidence that he heard the complainant say to Clayton in a slurred voice “you’re not going to leave me are you?” '

This suggests that the complainant was regularly "pumped and dumped" and reacted almost with resignation after the both men, one after another, left her.

"In his evidence, Ched stated that when his friend had left the room he had suddenly become nervous that his girlfriend may ring him. He spoke to Clayton on the phone who was by now outside of the hotel. He said he stopped having sex with the complainant and decided to join his friend outside. He left the complainant on the bed who he said huffed in disgust that he was leaving her and pulled the covers over as if to go to sleep. Ched left the room and then left the building by the fire exit."

It is interesting that neither men ejaculated during sex with her.

One would have thought that a man who has taken the trouble to rape a woman would at least see to it that he had finished the job, so to speak.

"When questioned in the police station it should be noted that neither of the accused had ejaculated during sex as a result of which the police had no forensic evidence to link either man to the sexual act, nor did the police have a complaint of rape. Regardless of this, both men gave a full account of their actions to the police. On 26th July 2011 the police charged both Clayton and Ched with rape."

The rape was alleged to have taken place on 29/30 May 2011.

It all sounds very suspicious to me and there is a suggestion that she only called the cops because she knew who they were.

Norman said...

This whole conviction rests on whether consent was gained for the sex that occurred. It's as simple as that. Did they get consent? Can they prove consent? The defendant saying they got consent doesn't make it so in a court of law. You seem to fail to understand that.
Clayton wasn't convicted because the conclusion was that he believed he had consent to sex because the victim had gone back with him to the hotel.
Ched was convicted because the jury concluded from the evidence and the testimonies that he didn't get HER consent to have sex with her.
"It is clear to me what Evans and his mates were doing that evening: picking up women and "roasting" them for sport." And that isn't illegal as long as you get consent to do so.
"It is also clear that the 19 year old complainant was not exactly a virgin as you would not expect a woman to be if she regularly does the kind of thing described below." There you go again, bringing the complainant's history in to it. It's irrelevant in a court of law. So you would only convict rapists if the complainant has never had sex before and hadn't consumed any alcohol leading up to the rape?
"As you must already know, sexual intercourse with consent is not a crime." Yes and someone believing they had consent is what has to debated and discussed at a trial. Evidence and testimony is given to establish this. In this case it was concluded that Clayton got it and Ched didn't because the complainant wasn't in a fit state to give it.
That's what I mean by No.5 and Clayton's comments. His request implies that she wasn't in a very good state physically. He was concerned for her physical well being. Does that really sound like someone who has just actively participated in sex with two men? And is sober enough to fully understand the situation and give consent? The jury didn't think so they convicted Ched.
"Of course, it is possible that they were both lying, but professional footballers are not men so desperate for sex they need to rape women to get sex." Yes it is possible they were lying. It is also possible that they both asked a very drunk person a question and that person responded with a sound or word acknowledging that they had a least heard the question.
Claire, have you ever been drunk? Really drunk, so you didn't really know what you were doing. So that when you eventually got home and in to bed you pass out? Have you ever interacted with someone who is really drunk? Do you think that when in that state if you ask them a question, they understand all of the question and answer to the same ability as when they are sober?
Look, you say some unconventional things and have some questionable views but you seem like a good person. You ask questions and seem like you really want to understand this case and what might have happened that night. Look past what Clayton, Ched and his supporters might have to say about that night. They have a problem with objectivity when it comes down to it. It's a jury's job to be objective and look at the evidence and the testimonies and reach a conclusion. Guilty or not guilty? They decided. The judges looked at the appeal and concluded as there was not new evidence the verdict stands. The CCRC will look at the case and make their decision. If it goes Ched's way and he gets cleared then I assume he will move on with his life as much as he can and the public will let him. Maybe with the conviction overturned he will come out and show some sympathy towards the complainant accept that he did some very questionable things that night. He might talk in public how he should be a lesson to all men that how he behaved isn't an acceptable way to behave and there are some dire consequences to behaving that way. Respect yourself by respecting other people.

Claire Khaw said...

Norman says:

"his whole conviction rests on whether consent was gained for the sex that occurred. It's as simple as that. Did they get consent? Can they prove consent? The defendant saying they got consent doesn't make it so in a court of law. You seem to fail to understand that."

My point is that Evans had a reasonable belief as to consent because she requested a sexual favour which he carried out.

Would a reasonable man thik that woman asking him to "lick me out" would consent to sex?

Would a reasonable man interpret her request as a prelude to sex?

If so he held a reasonable belief as to her consent.

Was this particular point put to the jury? I can't tell, can you?

Claire Khaw said...

VERY IMPORTANT POINT******************************************
Norman says:

"Clayton wasn't convicted because the conclusion was that he believed he had consent to sex because the victim had gone back with him to the hotel.

Ched was convicted because the jury concluded from the evidence and the testimonies that he didn't get HER consent to have sex with her."

POINTS TO BEAR IN MIND

1. The complainant said she couldn't remember anything so she could confirm or deny whatever the defendants said.

2. Ched Evans said he believed he had her consent because

a) she said YES to sex

b) she requested a sexual favour from him

c) he did as she requested

d) Clayton McDonald witnessed him doing as she requested

e) she did not resist

f) she said "fuck me harder"

g) she changed positions

None of the above suggests that she she was so dead drunk she was unable give consent, rather the opposite.

IT IS UP TO THE PROSECUTION TO PROVE BEYOND REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY.

Because she had no memory of any of this, the evidence given by Ched Evans which was corroborated by Clayton McDonald MUST BE ALLOWED TO STAND UNCHALLENGED and UNCHALLENGEABLE because the Prosecution could not contradict it, not dismissed out of hand, as it apparently was.

The burden of proof is still on the Prosecution, is it not?

Claire Khaw said...

SEXUAL HISTORY RELEVANT AS TO HER CREDIBILITY

Norman says:

"It is also clear that the 19 year old complainant was not exactly a virgin as you would not expect a woman to be if she regularly does the kind of thing described below." There you go again, bringing the complainant's history in to it. It's irrelevant in a court of law. So you would only convict rapists if the complainant has never had sex before and hadn't consumed any alcohol leading up to the rape?

No, whether or not she was virgin is neither here nor there. How promiscuous she was is directly related to her credibility and her motivation in reporting the rape.

A successful prosecution would mean she would receive a payout of £11k from the Criminal Injuries Compensation Board.

It is not a sum to be sneezed at by a waitress, is it?

Bad character evidence may also be relevant.

Claire Khaw said...

Norman says:

"As you must already know, sexual intercourse with consent is not a crime." Yes and someone believing they had consent is what has to debated and discussed at a trial. Evidence and testimony is given to establish this. In this case it was concluded that Clayton got it and Ched didn't because the complainant wasn't in a fit state to give it.
That's what I mean by No.5 and Clayton's comments. His request implies that she wasn't in a very good state physically. He was concerned for her physical well being. Does that really sound like someone who has just actively participated in sex with two men? And is sober enough to fully understand the situation and give consent? The jury didn't think so they convicted Ched."

That Clayton McDonald exhibited what passes for chivalry these days is neither here nor there in deciding whether Ched Evans raped her!

She was not dead drunk when she arrived and she was not dead drunk when she was in the room, because the porter heard male and female noises of enjoyment when he was listening at the door.

Claire Khaw said...

Norman says:

"Claire, have you ever been drunk? Really drunk, so you didn't really know what you were doing. So that when you eventually got home and in to bed you pass out? Have you ever interacted with someone who is really drunk? Do you think that when in that state if you ask them a question, they understand all of the question and answer to the same ability as when they are sober?"

While I am aware that people who are drunk can have what passes for a conversation while retaining no memory of it the day after, my point REMAINS that if she said yes then Ched Evans was ENTITLED TO TAKE HER AT FACE VALUE and therefore had a REASONABLE BELIEF AS TO CONSENT.

He should be given the benefit of the doubt because it is

1) for the Prosecution to prove its case

2) she is a worthless slag with her eye on the £11K

3) it would not be in the public interest for the law to be so biased in favour of a worthless slag just because she was born female and so biased against a promising young footballer just because he was born male

Claire Khaw said...

Norman says:

"Look, you say some unconventional things and have some questionable views but you seem like a good person. You ask questions and seem like you really want to understand this case and what might have happened that night. Look past what Clayton, Ched and his supporters might have to say about that night. They have a problem with objectivity when it comes down to it. It's a jury's job to be objective and look at the evidence and the testimonies and reach a conclusion. Guilty or not guilty? They decided. The judges looked at the appeal and concluded as there was not new evidence the verdict stands."

Why the conviction was wrong:

1. The judge actually said the reason why the jury convicted was because they thought she was unable to give valid consent to Ched Evans because she was too drunk to give valid consent.

(a) This is illogical because if anything she would have been more sober when she had sex with Ched Evans than when she had sex with Clayton McDonald.

(b) This is illogical because she did not have anything to drink between having sex with Clayton McDonald and Ched Evans.

(c) The Court of Appeal affirmed this illogicality.

https://www.crimeline.info/case/r-v-ched-evans-chedwyn-evans

When he came to pass sentence the judge said: ".... [the complainant] was in no position to form a capacity to consent to sexual intercourse, and you, when you arrived, must have realised that."

The Court of Appeal affirmed this decision by saying

"That accurately reflected the way in which the verdict should be interpreted."

This means they were ALL WRONG.