By Liam Brolan, PhD Researcher and Visiting Lecturer in Criminology at Birmingham City University

The quashing of former Wales international and Chesterfield striker, Ched Evans’ rape conviction two weeks ago, would appear to be one of the most provocative criminal justice stories of 2016. The outcome of the case, which has split opinion and sparked fierce debate amongst academics, legal professionals and the public alike, catapulted issues surrounding rape and consensual sex into the media and political spotlight.

The conversations that have been taking place online, more often than not, are centered around a specific piece of legislation which ultimately led to Evans’ acquittal of rape at Cardiff Crown Court.

That piece of legislation, Section 41 of the Youth Justice and Criminal Evidence Act (1999), imposes stringent restrictions on what evidence can be put before a court by the defence about an alleged rape victim’s sexual behaviour. Section 41(3), however, provides evidence relating to a complainant’s sexual history may be utilised in court if failure to do so would potentially jeopardise the safety of a criminal conviction.

In this case, Section 41(3) allowed Evans’ defence team to present to the jury, details of the complainant’s sex life – outlining a number of her sexual encounters which occurred around the time of the alleged incident. The accounts, which were provided by two, separate individuals offered descriptions of the alleged victims sexual behaviour, and alluded to a willingness, on her behalf to engage in consensual sex whilst under the influence of alcohol. These descriptions, which included details of the types of language the complainant had used during her previous, consensual sexual encounters, bared a number of similarities with the version of events that Evans has provided in relation to his own encounter with the complainant – similarities which, based on the provisions of Section 41(3) and according to the defence, could not reasonably be explained as a coincidence and which would ultimately support Evans’ narrative that he believed that she was consenting and willing to engage in sexual activity.

So then, why has this caused so much controversy? Well, there are a number of reasons worth mentioning. The first is that in response to Evans’ acquittal, it quickly became the popular assumption that the complainant involved in the case had lied and falsely accused Evans of rape. However, this was a flawed and misinformed argument, given the fact that the alleged victim had actually never accused Evans of rape in the first place. Instead, she had maintained throughout the case that she simply could not remember what happened in the early hours of the morning of the 30th May 2011 – therefore rendering any accusations of dishonesty on her behalf completely inaccurate. However, despite the factual reality, Twitter and other social media platforms were awash with people calling for her to be punished for ruining Evans’ career – given the fact that he had already served two and a half years of his original five-year prison sentence.

So, too, the use of Section 41(3) sparked outrage amongst rape victim support groups and women’s rights campaigners. Stories were published which referred to the use of the legislation as a huge backwards step for criminal justice. Those against the use of the legislation feared that the case would set a dangerous precedent for future rape cases and could potentially deter victims of rape from coming forward, in fear that their previous sexual history may be used against them in a court of law. Such arguments have since been met with strong opposition and even described as counter productive. For example, according to the Secret Barrister (2016) “The newspapers, activists and charities propagating this false message are needlessly terrifying present and future victims, and will only risk deterring them from coming forward.” Indeed, figures published in 2013 by the Ministry of Justice suggest that only 15% of women who have experienced sexual violence choose to report it to the police and in such cases, only 5.7% end in a conviction for the perpetrator.

Clearly, the future impact of this case is yet to be seen, however, it does seem to me to be unlikely that Section 41(3) will become a frequent feature in rape cases, given the fact the its use depends on a number of stringent conditions being met before evidence of this nature becomes admissible in court. Indeed, we simply will never know the absolute truth about what happened in this case, but what we do know is that Evans’ defence team were sufficiently able to demonstrate reasonable doubt as to his guilt – the burden of proof for criminal convictions in this country. The jury have made their decision, based on the information presented to them and ultimately, it should be respected. We should also remember, that the verdict does not mean that the complainant was lying and should avoid encouraging narratives of this nature. The fact that Section 41(3) was used to aid Evans’ acquittal will continue to cause controversy and divide opinion about the treatment of women involved in cases of rape. But for now, only time will demonstrate the significance of the impact of this verdict on future cases.


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