24 replies to this topic

[Orion]

I am referring to the recent rape trial where one footballer was found guilty, and one was found innocent. (Please note: I don't intend this to be a debate about whether they are really guilty or not).

My question is: If they are both accused of taking part in the rape of the same woman at the same time, how can one be found guilty and the other not, even though both admit they had sex with her?

What seems to have been key in the case is that the CCTV footage shows the woman to be very intoxicated before any of this happens, and this is what the judge said (from BBC):

"CCTV footage shows, in my view, the extent of her intoxication when she stumbled into your friend.
"As the jury have found, she was in no condition to have sexual intercourse.
"When you arrived at the hotel, you must have realised that."


But, as both men admit to having sex (consensual, in their view) with the woman after the CCTV footage was taken, how can they each be given a different verdict?

Edited by Orion, 24 April 2012 - 23:00.

[jonker]

I am a blades fan, so the loss of Ched Evans is a big blow (he was the one found guilty). I think there must have been some other evidence we have not heard, otherwise like you say it makes no sense. Unless it was just Evans being an arrogant idiot in front of the jury, which is a possibility - he's a good footballer but a big aerosol as a bloke!

[Irgendeiner]

Rape is a fairly complex offence in English law, for various reasons. After Morgan Heilbron J was tasked with doing a paper on the law of consent to intercourse, and, surprise, surprise she found that Morgan was sound. (If you don't know Morgan's story, just accept that they were all members of an RAF Sergeants' Mess having a good time).

The lucky man in the instant case is not "Innocent" - all he got was to be found "Not Guilty"! In the English game of "justice" (contrast how dirty foreigners, like the frogs or krauts do it+) the question is emphatically NOT whether the accused did it or not. It is whether the prosecutor can satisfy the jury on the charge(s) on the sheet beyond reasonable doubt!

In rape there is the actus which used to be (vaginal) "penetration soever" with no need to prove emission, and has now been muckked about by Hattie, but in this case was indeed straight fucking, and about which there was no dispute.

There is then the mens rea which is much more complex (and I'm sure I'll miss some element, given that my Archbold is not before me, so I look to my brothers to improve on my formulation). To convict the jury has to be sure that the man had the victim either knowing that he/she was not consenting, or not bothering whether he/she consented or not. [To digress, but only slightly, once, many years ago, I was "with" an attorney of the New York bar, and at the appropriate moment I said, "I assume, Counsellor, that you are consenting?" - she didn't answer, but slapped my face - I entered her, with pleasure. Was I a rapist? I believed that she was consenting, and since she stayed in my bed until breakfast next morning, and got back in tfor the following night, I think that my belief was justified, but the aspect that I would have had to satisfy the jury on would have been the sincerity of my belief in her consent at the time that I entered her, and the reasonableness of that belief.]

In this case, and not having seen the two accused give their evidence (and I assume that they did testify - they had to, didn't they?) the jury didn't believe the first to have her, when he asserted not that she didn't object, but that she actively consented, but did believe the second. Could it be that he watched his mate on the job, and assumed, indeed believed, "If she'll have him up her, she'll have anybody, even me"?

Jurors are funny animals!

+ex abundante cautela, I'd add, in case any of our continental friends read this posting, their courts are actually concerned to discover what actually happened on that night many months ago, but also why it happened. There is simply no accounting for the way foreigners do things.

Edited by Irgendeiner, 25 April 2012 - 09:39.

[punter992005]

I am referring to the recent rape trial where one footballer was found guilty, and one was found innocent. (Please note: I don't intend this to be a debate about whether they are really guilty or not).

My question is: If they are both accused of taking part in the rape of the same woman at the same time, how can one be found guilty and the other not, even though both admit they had sex with her?

What seems to have been key in the case is that the CCTV footage shows the woman to be very intoxicated before any of this happens, and this is what the judge said (from BBC):

"CCTV footage shows, in my view, the extent of her intoxication when she stumbled into your friend.
"As the jury have found, she was in no condition to have sexual intercourse.
"When you arrived at the hotel, you must have realised that."


But, as both men admit to having sex (consensual, in their view) with the woman after the CCTV footage was taken, how can they each be given a different verdict?

As far as I can see the only appreciable difference (that was publicised) was that the one who was found not guilty was the one she came back to the hotel with. Perhaps this had some bearing on the verdict, although since the rape allegation was based on her being too drunk to consent, as opposed to being held down and forced I can't see how one can be guilty and one not guilty. The suggestion was that all the alcohol she consumed was prior to her arrival at the hotel - so she was no more drunk with Evans than with the other guy. I would imagine the two different verdicts are part of the appeal that has now been launched by Evans' solicitors

[punter992005]

Rape is a fairly complex offence in English law, for various reasons. After Morgan Heilbron J was tasked with doing a paper on the law of consent to intercourse, and, surprise, surprise she found that Morgan was sound. (If you don't know Morgan's story, just accept that they were all members of an RAF Sergeants' Mess having a good time).

The lucky man in the instant case is not "Innocent" - all he got was to be found "Not Guilty"! In the English game of "justice" (contrast how dirty foreigners, like the frogs or krauts do it+) the question is emphatically NOT whether the accused did it or not. It is whether the prosecutor can satisfy the jury on the charge(s) on the sheet beyond reasonable doubt!

In rape there is the actus which used to be (vaginal) "penetration soever" with no need to prove emission, and has now been muckked about by Hattie, but in this case was indeed straight fucking, and about which there was no dispute.

There is then the mens rea which is much more complex (and I'm sure I'll miss some element, given that my Archbold is not before me, so I look to my brothers to improve on my formulation). To convict the jury has to be sure that the man had the victim either knowing that he/she was not consenting, or not bothering whether he/she consented or not. [To digress, but only slightly, once, many years ago, I was "with" an attorney of the New York bar, and at the appropriate moment I said, "I assume, Counsellor, that you are consenting?" - she didn't answer, but slapped my face - I entered her, with pleasure. Was I a rapist? I believed that she was consenting, and since she stayed in my bed until breakfast next morning, and got back in tfor the following night, I think that my belief was justified, but the aspect that I would have had to satisfy the jury on would have been the sincerity of my belief in her consent at the time that I entered her, and the reasonableness of that belief.]

In this case, and not having seen the two accused give their evidence (and I assume that they did testify - they had to, didn't they?) the jury didn't believe the first to have her, when he asserted not that she didn't object, but that she actively consented, but did believe the second. Could it be that he watched his mate on the job, and assumed, indeed believed, "If she'll have him up her, she'll have anybody, even me"?

Jurors are funny animals!

+ex abundante cautela, I'd add, in case any of our continental friends read this posting, their courts are actually concerned to discover what actually happened on that night many months ago, but also why it happened. There is simply no accounting for the way foreigners do things.

As in my other reply the one who was found not guilty was the one she arrived at the hotel with - so presumably he would have been the first one to have sex with her.

[nntt]

I'm not aware of the full details of the case.

However, one assumes with the defendant upon whom she agreed to return to the hotel with that at some stage she did so of her free will and offered consent, I assume at some stage the woman had not been "drunk" and therefore able to offer consent, if that was not the case surely the initial defendant would have faced some form of kidnap charge?

I therefore assume the jury felt the woman involved did offer consent and by his not guilty verdict did not act to withdraw that consent at a later stage when drunk.

The same could not be said of defendant B who met the woman drunk and therefore no consent could have been obtained at any stage under the law.

Although as indicated, the issues surrounding consent appear quite complex.

Edited by nntt, 25 April 2012 - 15:28.

[prodigal]

He is now appealing the verdict

Perhaps therefore any further speculation should be stopped

[Irgendeiner]

I therefore assume the jury felt the woman involved did offer consent and by his not guilty verdict did not act to withdraw that consent at a later stage when drunk.

The same could not be said of defendant B who met the woman drunk and therefore no consent could have been obtained at any stage under the law.

Although as indicated, the issues surrounding consent appear quite complex.

If the jury just thinks that he might have believed she consented, that is the "reasonable doubt"

[Irgendeiner]

He is now appealing the verdict

Perhaps therefore any further speculation should be stopped

PN is hosted in the USA so the Contempt of Court Act 1981 has no application to it. As for individual UK based posters, I'd rather think that the s.5 Discussion of Public affairs saving is relevant, particularly given that the appeal will be considered by a panel of judges who are immune to prejudice from our postings, which, I have no doubt, they read avidly.

Anyone know the grounds of the appeal? Mis-direction or perversity?

[Silverado]

He is now appealing the verdict

Perhaps therefore any further speculation should be stopped

Any appeal will be heard by the Court of Appeal, and without a jury.

It's extremely unlikely that there's a a substantial risk that the course of justice in any appeal proceedings will be seriously impeded or prejudiced.

I'm not aware of any PN members being judges in the Court of Appeal ( Criminal Division) - but then who knows?

I see that Irgendeiner is of the same opinion.

[prodigal]

Unless of course it is sent back for retrial.......

[georgem]

Unless of course it is sent back for retrial.......

That looks like clutching at straws to justify your argument. Apart from some erudite legal opiniom,which would not be considered contempt, there is little here that could not be gleaned from newspapers.

[Silverado]

Unless of course it is sent back for retrial.......

On what grounds? It isn't going to happen in this case.

[nntt]

If the jury just thinks that he might have believed she consented, that is the "reasonable doubt"

Sorry I don't follow your logic, I thought what I outlined was fairly clear.

On a notional basis, for example, Defendant A is with whom the woman met and I assume agreed to return to a hotel with (since no charges of kidnap or false imprisonment were implied). I assume defendant A at some stage met the woman and she did offer consent and was legally able to do so. The not guilty verdict against him would suggest to me no evidence was sufficient enough to prove this consent was not explicitly withdrawn.

With defendant B he met the woman drunk. She was not able to legally consent under those circumstances and so any such defence is not relevant. I think the law is fairly clear here, if you have sex with anyone who is in no fit state to consent then no such consent can be implied and you have committed rape, subject to a complaint being made.

What defendant B thinks the woman may or may not have done is entirely irrelevant, if she was unable to offer consent by being drunk.

Infact, you argument seems totally at odds with the law. Are you saying a jury is instructed or acts upon what a defendant may or may not think and not the evidence?

I'd suggest under such logic many people found guilty "think" or "justify" illegal acts, that is not a basis for defence, perhaps mitigation, but not guilt or innocence.

Edited by nntt, 27 April 2012 - 10:00.

[Irgendeiner]

Infact, you argument seems totally at odds with the law. Are you saying a jury is instructed or acts upon what a defendant may or may not think and not the evidence?

I'd suggest under such logic many people found guilty "think" or "justify" illegal acts, that is not a basis for defence, perhaps mitigation, but not guilt or innocence.

Lets start with Morgan! One night he said to his mates, "Come on back to my place, and give the wife a seeing to! Her fantasy is being raped. She'll kick and scream a bit, but that's all part of the role play!" So there they went and that they did. The daughter climbed out of the loo window, eventually, and went for help.

In those days a man could not rape his wife, but Morgan was convicted of the offence, as an accessory to his mates' raping her. His mates claimed in their defence that they believed the wretched Mrs Morgan was just playing, and really consented.

The appeal decision was that if the jury had thought that they might have believed this story, then that that was a defence, but that the more unreasonable such a belief looks, then the less likely it is that a jury will believe it, and in Morgan's case the jury didn't believe his mates, and they went down for a long time.

In English law the prosecutor has to prove his case beyond reasonable doubt. I've often ended my spiel to the judges of fact, "...and, if, in the end, you think that my client is probably guilty, then it will be your duty to acquit him, because 'probably' isn't 'beyond reasonable doubt' " Where the offence laid down in statute specifically includes a mental element the jury has to decide what the accused was thinking. Look at the difference between "unlawful wounding" and "wounding with intent"! The same injury, either a "wound" (the continuity of the whole skin is broken) or "gbh" - grevious bodily hard, grevious meaning "really serious", can give rise to either a max of five years, or life. For unlawful wounding the jury needs to be satisfied that chummy did it, and that it was no accident. For wounding with intent, they need to be sure that chummy actually intended to do really serious harm to his victim. Verbals like, "Come here, and I'll kill you!" help, but a lot of it is going to be body language, and inference - did he bring a knife with him (looks more like intent) or did he snatch a steak knife off the table?

With rape, if the victim says "No! You are not for it! I'm a virgin and intend to remain one until my wedding night!" there is no room for the accused to have any belief that she consents. But remember that in English law, unlike French (viol) or German (Vergewaltigung) law, the victim does NOT have to resist. She merely needs not to consent. Of course, there is post-coital non-consent, when she hears the husband's/father's key in the lock, which gives rise to problems for both sides.

If there is violence, then it looks like he knew she wasn't consenting, or simply didn't bother, but if there is no actual violence, and she doesn't resist, it is (usually) just the two of them with no other witness to the actual deed. So, inevitably, it is a matter of what he might have believed. If the jury, having heard his evidence - if he says consent, then he has n o option but to give evidence and submit to cross-examination - retires and after debate, concludes that although not very likely (nice girl from good family!!) she might have allowed him to believe that she was consenting, then they have to acquit.

[Orion]

Thanks for all the responses. Once the appeal process is finished then maybe we will get a better understanding of how they came to the two different verdicts.

[nntt]

As I said Irgendeiner, the motive of the defendant may or may not offer a mitigation to an offense, but it doesn't determine guilt or innocence, as you have detailed in your paragraph concerning "wounding with intent".

Your first few paragraphs I find highly problematic. You cannot offer consent on the behalf of another.

The point I'm making is quite straightforward here. The law in this area is no longer a subjective test on what a defendant may or may not think, reasonably or otherwise, it is an objective test in relation to consent. If someone is "drunk" etc they are simply unable to offer consent, it is that simple in law.

I just think your final paragraph assumptions are wrong in law post the 2003 sexual offenses act. There are major presumptions against inferring consent.

[punter992005]

Thanks for all the responses. Once the appeal process is finished then maybe we will get a better understanding of how they came to the two different verdicts.

Possibly not - it was the Jury that made the decision and they can't be asked how they arrived at their decision, except in very special circumstances such as where jury tampering or misconduct is suspected. It wouldn't surprise me if the two different verdicts is essentially what the appeal is based on i.e. the defence could claim that it's not possible for the jury to reasonably and fairly acquit one person and find the other guilty. They may argue that the evidence against the two was essentially identical and therefore they couldn't have different verdicts. We'll certainly find out what the appeal is based on and what the judge says in regard to that but we'll never actually know what the jury based their decision on.

[Irgendeiner]

The point I'm making is quite straightforward here. The law in this area is no longer a subjective test on what a defendant may or may not think, reasonably or otherwise, it is an objective test in relation to consent. If someone is "drunk" etc they are simply unable to offer consent, it is that simple in law.

So first point, she is too drunk to be capable of consenting! Fine. She didn't consent, and he screws her (sorry, I really can't think of an indecent assault on a man as "rape", whatever Hattie thinks) but he should only be convicted if the prosecutor satisfies the jury, either that he didn't bother whether she consented or not, or that he knew that she wasn't consenting. If in his evidence he asserts that he believed that she was consenting, and maintains that under cross, it is for the jury to consider whether they believe him, and acquit, or that they don't and they convict.

As to consenting on behalf of another, why not? The WG in Bugis Street in 1965 who had lost her tongue (how was never mentioned) had an assistant who bargained for price, and clearly indicated consent o/b/o her principal! In Morgan's case, he purported to give Mrs M's consent, and if his mates had really believed him, then they had a defence, because they'd believe that she did consent.

This isn't easy - I still find it hard to think my way round it, and I qualified more'n thirty year ago. I hope, perhaps, you'll be more understanding about your solicitor's bill!

[Silverado]

If someone is "drunk" etc they are simply unable to offer consent, it is that simple in law.

I don't think it's that simple.

Intoxication is not one of the evidential presumptions about consent ( section 74 SOA 2003) or absolute presumptions (section 76).

Drunken girls consent to sex up and down the country every night of the week (especially Friday and Saturday night). They can't all have been raped.

In R v Bree [2007] , the Court of Appeal said that, if, through drink, or for any other reason, a complainant had temporarily lost her capacity to choose whether to have sexual intercourse, she was not consenting, and subject to the defendant's state of mind, if intercourse took place, that would be rape. However, where a complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing whether to have intercourse, and agreed to do so, that would not be rape.

[Freddie68]

It may have come down to the timeline as Evans arrived at the hotel after he got a text from the other defendant. The jury may have felt that she was not in a position to consent to him at that time but had gone back to the hotel with the other defendant and that implied consent earlier when she was coherant.

[nntt]

I have just looked up CPS guidance on the issue.

The first element we have discussed in relation to "capacity to consent" and "voluntarily (or otherwise) intoxication".

There is indeed a second issue concerning the defendant, they define it as such;

Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (subsection (2) of sections 1-4). It is likely that this will include a defendant's attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.

This is a major change in the law and the Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. It means that the defendant (A) has the responsibility to ensure that (B consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.

The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions:

(i) Did the defendant believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).

(ii) If so, did the defendant reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).

So my belief pretty much holds true. If someone is "drunk" out of your presense and you arrive and are aware of that, they cannot possibly have the capacity to consent and you must be aware of that, i.e your belief must be unreasonable by the fact the person is drunk (and you have a clear capacity to know that).

Edited by nntt, 28 April 2012 - 06:33.

[Silverado]

So my belief pretty much holds true. If someone is "drunk" out of your presense and you arrive and are aware of that, they cannot possibly have the capacity to consent and you must be aware of that, i.e your belief must be unreasonable by the fact the person is drunk (and you have a clear capacity to know that).

The point that I was making is that you cannot make the absolute statement that a drunk cannot consent. A drunken consent can still be consent.

The whole issue was considered prior to the enactment of the SOA 2003. Look at the evidential presumptions in section 75(2). Intoxication isn't even mentioned.

http://www.legislati...3/42/section/75

Have a look at the Court of Appeal judgment in R v Bree:

http://www.bailii.or...m/2007/804.html

[nntt]

The point that I was making is that you cannot make the absolute statement that a drunk cannot consent. A drunken consent can still be consent.

The whole issue was considered prior to the enactment of the SOA 2003. Look at the evidential presumptions in section 75(2). Intoxication isn't even mentioned.

http://www.legislati...3/42/section/75

Have a look at the Court of Appeal judgment in R v Bree:

http://www.bailii.or...m/2007/804.html

I appreciate your point silverado, but maybe we are getting cross points here in the "definition" of "drunk".

I'm not talking about someone who has been "drinking", I would personally define a drunk as someone who has lost capacity. But yes, of course, the legislation has no set definition as in drink driving and deliberately so.

So when you say;

"A drunken consent can still be consent.", I'd re-define that as "a drinking consent can still be consent".

[snogman1]

id imagine it boils down to the responses both defendants gave under cross-examination and what the complainant saidabout each.