Ched Evans situation

[Dopamine1979]

Good posts LegalBeagle. I think we're all pretty much on the same page here.

[legalbeagle]

DaveR

"So when your opinion is challenged by men you wonder whether the reason is that as a matter of fact they have had drunken unthinking sex that, as a matter of reasonable opinion, you might categorise as rape. "

Again, you completely misunderstand. I worry that they think that I THINK they are a rapist, however reasonable they think they and the woman in question were being. That I might have held them to some higher standard of behaviour and found them lacking when actually all they are doing is asking questions based on their own perfectly reasonable experience.

As I have said, I do not think that. I was trying to make the debate more open and inclusive, not less so, by pointing out that if they had gone to the extreme of thinking that I was judging them for raising questions, that I wasn't.

I maintain that you have put forward a very unpleasant misinterpretation of what I said and what I think.

You don't need to lecture me on subconscious prejudice either. I'm aware of how people's opinions are formed, and that no one is perfect or has all the answers, least of all me since I am not an expert in this field. If a certain proportion of women have excluded men from debate then that's their bad, not mine.

[DaveR]

legalbeagle, I'm happy to accept what you meant to say. I think we still disagree about what you did actually say, but to the extent that it matters, anybody else can decide for themselves.

FWIW I agree with most of your long post at the top of the page, although I don't think its necessarily fair or accurate to say that courts (by which i guess you mean judges) don't understand the issue of consent properly. There are many reasons why rape is a difficult crime to prosecute but by far the most significant one is that it very often is simply one person's word against another, and for someone to be acquitted on the basis of reasonable belief in consent a jury don't have to be sure a complainant is lying.

[KrackersMaracas]

FWIW I think Leaglebealgle's posts on the subject are quite clear that they are not accusing men who disagree with her of being a rapist. Hence the statement "and wondering if.... In my opinion [you would] be a rapist".

[Otta]

FWIW, legalbeagle and I know a bit about each other and she's cool. But when I read that line I did think "hang on, is she saying that we're questioning out of guilty conscience or something".

I now realise that she wasn't but that is how I first read it.

Personally I think this has been a good discussion about a subject which people don't really like to discuss a lot of the time. I find the legal side interesting, and frankly would hate to be trying to get a conviction (or indeed avoid one if I was accused) based on what seem like pretty blurred lines.

But as LB said earlier, rape of pissed strangers is relatively rare (thankfully).

[legalbeagle]

To the extent I was unclear earlier, I hope what I meant is clearer now.

DaveR, Re courts, yes I really mean judges. To expand - treatment of the issue of consent in court has been confusing, contradictory and misunderstood. For example:

2012, Caernarfon crown court, a 49-year-old man was convicted of raping a teenage girl. Jailing the rapist, the judge said: ?She let herself down badly. She consumed far too much alcohol and took drugs." So no she didn't actually consent, but she was partly responsible, and so his sentence was lenient. The judge conflates consent and victim blaming which is not just vile but confusing. Either it's a rape, or it isn't. Once a lack of consent is established, her behaviour is irrelevant.

August 2013, Neil Wilson, 41, was given a suspended prison sentence for having sex with a 13-year-old girl. Judge Nigel Peters accused Wilson?s victim of ?egging him on?. Even the prosecution lawyer, Robert Colover, called her ?predatory?. So technically no consent since she was a minor, but it was still partly her fault. Even the lawyers on her side said so. Same point as above.

March 2014, 19-year-old Adam Hulin pleaded guilty to the oral rape and sexual assault by penetration of a 12-year-old girl. He was sentenced to 100 hours of community service, a ?60 victim surcharge and the requirement to attend six community reintegration sessions. George Lawson-Rogers QC (the judge): ?I certainly wouldn?t want to do anything which would prejudice his future career,? also said he was reluctant to ?dismiss the contention that what happened was not by mutual consent?. Well she either consented, or she didn't. She was a minor, so she couldn't. What IS he talking about?

That's what I mean by misunderstanding consent. It gets conflated with victims behaviour in a totally inappropriate way by some judges, even now. These cases are in some ways easier to be appalled at because two involve minors. They also prevented the judges from dealing head on with the issue of consent since a minor cannot consent anyway.

Take away the ages, and what would you have had? No conviction on the basis that it was the women's fault? No way of telling. But the judges comments are unforgivable.

[JohnL]

Don't forget today we had a 44 year old teacher found guilty of raping a 16 year old (she was his student and thus couldn't consent even though she was 16).

The judge said she groomed him, I don't know his mental state, but it sounds strange - and I hear there cannot be/won't be an appeal (to the lenient sentence).

[Loz]

legalbeagle Wrote:

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> It occurs to me re reading all of this that there are no women saying my views are wrong, and mostly

> men questioning them (and some men agreeing).

Aquarius moon, Robert Poste's Child and LadyNorwood were around mid-thread and offered, at the very least, some differing angles of opinions.

[legalbeagle]

JohnL - I haven't caught up with that one today. It's difficult to make sense of individual cases sometimes and I don't know the details of that one. I don't know what the judge meant by grooming.

In the teacher/pupil scenario, I guess my general opinion would be that we should hold the teachers to a high standard, because it is the only way of protecting those who are most vulnerable, from those in positions of trust and power.

[DaveR]

"Don't forget today we had a 44 year old teacher found guilty of raping a 16 year old (she was his student and thus couldn't consent even though she was 16)."

The conviction was not for rape, and this:

"she was his student and thus couldn't consent even though she was 16"

is wrong - that's not the law.

Also, the judge said "Her friends described her, accurately in my view, as stalking you," i.e. the description of the victim stalking the teacher came from other students who were, presumably witnesses. That appears to be the context for the 'grooming' comment.

It's not helpful to be so careless with the facts.

[Robert Poste's Child]

Loz Wrote:

-------------------------------------------------------

> legalbeagle Wrote:

> --------------------------------------------------

> -----

> > It occurs to me re reading all of this that

> there are no women saying my views are wrong, and

> mostly

> > men questioning them (and some men agreeing).

>

> Aquarius moon, Robert Poste's Child and

> LadyNorwood were around mid-thread and offered, at

> the very least, some differing angles of opinions.

Only reason I haven't commented recently is because legalbeagle's doing an excellent job on her own! I agree with everything she said.

[Loz]

JohnL Wrote:

-------------------------------------------------------

> Don't forget today we had a 44 year old teacher found guilty of raping a 16 year old (she was his

> student and thus couldn't consent even though she was 16). The judge said she groomed him, I don't know his

> mental state, but it sounds strange - and I hear there cannot be/won't be an appeal (to the lenient sentence).

The law is there to protect people at an impressionable age from those should be shaping that very impression. Teachers, etc are deemed to be in a "responsible position" and so they should be responsible people. As DaveR said, this was not a case of rape (and never was), but of an adult abusing their position of responsibility.

The judge was wrong to say the girl 'groomed' him, though. 'Groomed' has a specific meaning and it is silly to use it in this context. If you look further into her comments, she also said the girl 'actively pursued' the teacher. I can see that is entirely possible - 16 year olds can be and are capable sexually. But it was up to the responsible person to react in the right way. I understand schools have mechanisms for him to have reported her advances. He didn't do that.

It is an interesting law, though. Had the girl had an affair with the teacher's (fictional) twin brother who worked as (say) an accountant, the law would have not been interested, so looking at difference in ages in a simple sense is somewhat irrelevant. It is more about a law about abuse of power and responsibility.

Sentencing is a mystery to me at the best of times but all I'd say is that the judge has all the information and a shed load of sentencing guidelines which she had to comply with. Suffice to say his career is ended and he's on the sex offenders register. He'll never be a teacher again. I suppose he can always take up professional football.

[Jeremy]

Pretty much what Loz and Dave said..

[DaveR]

"...he was reluctant to ?dismiss the contention that what happened was not by mutual consent?. Well she either consented, or she didn't. She was a minor, so she couldn't. What IS he talking about?"

This is not evidence of confusion, but of the fact that a 12 year old girl is legally incapable of consenting to sexual activity but is factually capable, even if that factual consent may be less informed/more susceptible to persuasion than an adult, or an older child. As a result, after conviction consent is still capable of being a live factual issue that is relevant to sentencing, unlike in a case where factual lack of consent is proved by the guilty verdict.

That's not to say that individual judges don't say stupid things, but it's important to recognise that blaming low conviction rates primarily on bad law or bad judges simply may not be justified. Also, it is juries, not judges who decide on guilt and innocence, and juries are directed to 'apply their common sense and experience', which sometimes leads to uncomfortable results for victims.

Going back to Ched Evans, reading the appeal judgment this does not look like a case that demonstrated any difficulties or inadequacies in the law or the trial process - it's pretty easy to understand why Evans was convicted and the co-d acquitted, although on another day the co-d could easily have been convicted too.

[legalbeagle]

DaveR - I certainly wouldn't blame low conviction rates "primarily on bad law or bad judges" and I don't think I've ever said that. There are multiple and complex reasons why rape conviction rates are so low.

Of course a jury convicts and not a judge. However a jury is very swayed by a judges summing up and directions (hence the right to appeal certain convictions based on a material misdirection from a judge.)

Equally importantly, the comments that a judge makes in sentencing (which is what all of the examples I gave came from) set the tone for how we view these offences. And so although the judge may not convict, what he or she can do is put an unfair context around the offence, colouring how we view the behaviour of perpetrators and victims, and perpetuating certain myths. That feeds back into the cycle of it being harder for a person not to be blamed for being raped, and to bring forward a complaint in the first place.

A good example would be my first one - yes it was a rape but she let herself down by getting drunk and taking drugs.

In the particular case of the 12 year old and your commment: "This is not evidence of confusion, but of the fact that a 12 year old girl is legally incapable of consenting to sexual activity but is factually capable, even if that factual consent may be less informed/more susceptible to persuasion than an adult, or an older child. As a result, after conviction consent is still capable of being a live factual issue that is relevant to sentencing, unlike in a case where factual lack of consent is proved by the guilty verdict."

My thoughts would be:

If a 12 year old child is consenting to sex with you, there is something wrong. We should not hold that child responsible for their rape in any way, including in the giving of a lenient sentence. I'm sorry, but they are a twelve year old child. They may be physically capable of saying yes, and meaning it, but they cannot possibly know, on an emotional level, what they are doing. Adults are supposed to protect children, not have sex with them. The law is supposed to uphold that right to protection. If, at 12, you want to have sex then you need help and education readjusting to what is appropriate behaviour for a child your age. What you do not need, and should not experience, is a man having sex with you.

No adult should have sex with a child, however willing, and if they do they should bear full responsibility for it. Her willingness should in no way have affected the sentence, in my view. Are we really saying that a child of 12 is not mature enough to vote, drink, leave school, or be left alone at home unattended, but they CAN be judged partly responsible for a sexual encounter with an adult? When I say the judge was confused, frankly I was being polite. What I actually think is that the judge was confused, woefully misguided, and incapable of properly protecting children.

To test that theory, look at it the other way around, in this hypothetical situation. Suppose it was this: She was 12, he was an adult, he forced her into sex, although he physically harmed her in no way. He is convicted. He is a rapist, he is a pedophile, and he deserves a long sentence. I think we can probably all agree on that.

Now go back, and take away the force part. She wanted the sex. All the other facts remain the same. Here is what the judge implied:

You are an adult. You had sex with a child. You are a pedophile and a rapist. But since the child in question appears not to have minded, well, that's not so bad. We don't really mind if kids have sex when they want to. Even if they are only 12. Even if you are a grown adult. Even if we have no way of knowing what lead someone so young to display that kind of behaviour. I mean, technically we now have to do something, because that's the law, but you know, it wasn't so bad.

I exaggerate to make the point but nonetheless. That is not a judge with which I am happy.

[Otta]

Surely there should be no question of consent if a 12 year old is concerned? Under age, end of discussion!

I'm not sure how I feel about the teacher being on the sexual offenders register. A man in his 40s having sex with a 16 year old is wrong on many levels, and I get that he was a teacher (and agree that he should no longer be able to teach), but at the ejnd of the day she was 16, which the law says is old enough to have sex. I'll lose no sleep for him, but I don't much like grey areas in law.

But come on, no one over the age of say... 20 MAX should be having sex with a 16 year old. Especially as at that age a couple of years seems like a huge difference.

Interesting discussion on QT last night. I am not in any way a fan of David Starkey, but I had some sympathy with him last night, because the question that was put was "can a 16 year old girl groom a grown man" (or words to that effect. And Starkey was saying replace "groom" with "seduce", and yes they can. He was shot down as if he was saying the bloke in this story had done no wrong, which he wasn't (he repeatedly said the man had acted appalingly and shouldn't have succumbed to any advances), but he was saying that some teenaged girls are more mature than others, and I think he made a fair point.

I mean had that panel never seen American Beauty?!?!?

[DaveR]

"If a 12 year old child is consenting to sex with you, there is something wrong. We should not hold that child responsible for their rape in any way, including in the giving of a lenient sentence. I'm sorry, but they are a twelve year old child. They may be physically capable of saying yes, and meaning it, but they cannot possibly know, on an emotional level, what they are doing. Adults are supposed to protect children, not have sex with them. The law is supposed to uphold that right to protection. If, at 12, you want to have sex then you need help and education readjusting to what is appropriate behaviour for a child your age. What you do not need, and should not experience, is a man having sex with you."

All of this is true/right, and is the reason why the law disregards the fact of consent for determining guilt when the victim is 12.

"Her willingness should in no way have affected the sentence, in my view."

Do you really think that the sentence for a violent coercive rape of a child should be the same for a non-violent, non-coercive rape where factual consent is clear? If no, then you have to accept that the fact of consent is relevant to sentence. And as much as it would be nice to think that there is no such thing as a 12 year old consenting to sex, that's just not a sustainable real world view - the Daily Mail has a story on unfeasibly young parents about every 6 months, including 12 year olds.

I don't want to bang on about this too much but there is a fundamental difference between saying "UK courts are confused about the issue of consent" and saying "here is a judge that I am not happy with, (and not necessarily because of his application of the law)". The wider point is that it's easy to talk about the issues at a generalised level with a high degree of moral certainty and say that the process is failing and everybody is at fault. It's less easy to deal with the messy reality of actual facts, and to understand and distinguish between moral culpability of the offender and the degrees thereof, and surrounding factual circumstances, including the attitude of the victim, and when, if ever, the two are connected. That doesn't mean that victims are ever to blame, or 'asked for it', or that offenders should ever be able to say "she wanted it so it's not my fault", but simply that judges are required to decide how serious a case is in order to arrive at a sentence. And sometimes they'll get it wrong, and sometimes (even if they get it right) they'll say stupid things and reveal themselves to be idiots.

"Of course a jury convicts and not a judge. However a jury is very swayed by a judges summing up and directions (hence the right to appeal certain convictions based on a material misdirection from a judge."

And any judge in a rape case who doesn't follow the standard directions is already an idiot.

http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Training/benchbook_criminal_2010.pdf

[legalbeagle]

"Do you really think that the sentence for a violent coercive rape of a child should be the same for a non-violent, non-coercive rape where factual consent is clear?"

No I do not. That is why I made very clear in my example that the hypothetical child in question was forced to have sex, but suffered no physical harm.

Where physical harm is also done, then a higher sentence is and should be imposed. That is because you are punishing both the rape and the physical harm. Much the same as there is a distinction drawn between say, robbery and aggravated robbery. If you beat someone as well as rape them you are punished for beating them as well as raping them. It is not the rape that is worse. It is the addition of the beating that attracts the higher sentence.

The right question is - do I think that the coercive rape of a child should carry the same sentence as the non-coercive rape of a child. And yes, I do. By which I mean, in the scenario I originally set out, no leniency should be accorded JUST BECAUSE the child consented. They are a child. You cannot have sex with a child. Their consent means nothing in terms of mitigating either the rapists behaviour or his sentence.

[Jeremy]

The teacher thing isn't rape of course, but nevertheless justifiably a criminal offence... he was in a position where pupils were under his responsibility/care.

[Otta]

DaveR Wrote:

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> Do you really think that the sentence for a

> violent coercive rape of a child should be the

> same for a non-violent, non-coercive rape where

> factual consent is clear?

I know you were asking LB, but personally I do think the sentences should be the same. Perhaps a line could be drawn at 14/15 whereby consent could make a difference, but 12 is very much still a child, not even a teen, and whilst the lack of violence may make it seem less bad, anyone that would take the consent of a 12 year old to mean that it was okay, needseither psychiatric help, or s severe punishment.

[alice]

Does anyone know if the rape victim in this case sold her story?

[StraferJack]

?????

[Otta]

She can't even be named.

[alice]

just wondered

[JohnL]

Okay - Independent today has the story of a man (who it now seems was innocent) who was

locked up for 17 years for attempted rape - apparently as he would not admit his guilt

he could never be released on parole.

So why was Ched Evans given parole

http://www.independent.co.uk/news/uk/home-news/wrongly-convicted-men-launch-new-case-against-the-justice-secretary-9985773.html