The starting point for much of what I write here at the Ministry tends to be the kind of stuff that bugs me because, when I think about it in detail, it doesn’t quite make sense.

Take, for example, the very recent rape conviction of a Sheffield United footballer, Ched Evans…

Now, on the face of it, the case seems to have been relatively straightforward as contested rape cases go.

The 19 year old victim had been drinking pretty heavily, according to the evidence that was presented in court, before she went back to a hotel with Evans’ close friend and co-defendent, Clayton McDonald. There was CCTV footage that showed her falling over in a kebab shop and a receptionist at the hotel described the young woman as having been ‘extremely drunk’ and told the court that she was ‘stumbing’ and ‘slurring’ when she arrived at the hotel with McDonald.

At the hotel, she had sex with McDonald, which he contended throughout was consensual, and while this was going on an ‘associate’ of the two footballers, Jack Higgins, and Evans’ brother, Ryan Roberts, were watching the whole thing through a window while Higgin’s tried to video the ‘action’ on his mobile phone. Evans then put in appearance and also had sex with victim, which he claims was also consensual, after McDonald left the room.

The victim, according to media reports published during the trial, has no memory of the incident not even of how she got to the hotel.

So the issue here is simply that of whether or not the victim was too drunk to consent and that’s the point that Cath Elliott certainly picks up in her commentary on the rather disturbing reaction that the case has generated amongst some Twitter users:

A quick glance through the [justice-forched] hashtag feed (if you can stomach it) shows how rape culture is alive and well in this country. It also shows how completely ignorant so many people are of the laws on rape, specifically the Sexual Offences Act 2003, and the statutory definition of consent that’s contained within it:

“Section 74 defines consent as “if s/he agrees by choice, and has the freedom and capacity to make that choice”.

The CPS provides this legal guidance on the issue of consent:

The 2003 Act provides a clear definition of ‘consent’ for the purposes of the law of rape, and by defining it with reference to “capacity to make that choice”, it sufficiently addresses the issue of consent in the context of voluntary consumption of alcohol by the complainant;

If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant’s state of mind, if intercourse takes place, this would be rape.”

So, it couldn’t really be much clearer could it: if a woman is too drunk to consent to sex, then any intercourse that takes place is rape.

Well yes… except that when you consider the jury’s verdict in this particular case carefuly, things don’t appear to be quite so straightforward.

The first defendant, Clayton McDonald, was acquitted, and it was McDonald who picked up the victim in the street, took her to the hotel and then had sex with her, despite the fact that she was, in the words of the hotel’s receptionist, ‘extremely drunk’. So, on the first charge of rape the jury actually decided that the victim was not too drunk to consent to sex with McDonald.

However, once McDonald and Evans changed places, so to speak, the sex became non-consensual so far as the jury were concerned with the result that Evans was convicted of rape and sentenced to five years imprisonment.

At this point, I’m struggling to follow the jury’s reasoning and I dare say that if and when Evans appeals his conviction this is likely to be a question that the Court of Appeal will be invited to consider.

What’s the thinking here?

That the victim was sober enough to have consented to having sex with one bloke, but not two?

That she was sober enough to have consented to sex with McDonald, but drunk enough not to have noticed Evans taking over from McDonald?

Was the jury told anything, that hasn’t been reported, that indicated that the victim’s condition had changed between having sex with McDonald and having sex with Evans?

Did she carry on drinking while she was in the room, and become even more intoxicated than she had been when she arrived at the hotel, or there evidence to suggest that fell asleep or lost consciousness after having sex with McDonald?

Is the difference, perhaps, down to the fact that McDonald was seemingly unaware of his mates gawping at the action through the window, while Evans knew that they’d been watching and would be likely to continue to watch while he took his turn?

Actually, that last one would make sense if the assumption is that she consented to have sex with both McDonald and Evans in the belief that this would all be taking place in private and not in front of an audience, in which case Evans knowing that he had audience would make this a matter of consent obtained by deception, which is, of course, rape.

What I’m suggesting here is that this isn’t simply a question of capacity. There has to be another element to the jury’s thinking for it arrive at a verdict which acquits one defendant but convicts another when both, by their own admission, had sex with the victim. If the only issue at stake here was whether or not the victim was too intoxicated to consent to having sex with the defendants then it seems to me that you have to decide that question one way another. Either the victim lacked the capacity to consent throughout, in which case you convict both defendants, or she had the capacity to consent throughout, and in the absence of other factors, you have to acquit both defendants because the victim professes to have no memory of the events that took place in the room and cannot offer anything to contradict the defendants’ assertion that she consented to have sex with both of them, particularly as McDonald claimed, in court, that Evans had asked the victim whether he could ‘get involved’.

Mr McDonald said: “I clocked through the window Ryan and his mate and then Ched came into the room and said, ‘Can I get involved?’.

“I looked at her and all she said was ‘Yes’.”

He told police he got dressed and left the room after saying “see you later” to the complainant.

He said he went to reception and asked the duty manager to ensure the woman got home.

For the record, I’m playing Devil’s Advocate here. I’m not trying to suggest that McDonald should have been convicted or that Evans should have been acquitted but what I am saying is that if the verdict in the case was purely down to the victim’s capacity, or otherwise, then I find it difficult to see how the jury could have reasonably arrived at the verdict that it did hand down, in which it acquitted one defendant but convicted the second.

Okay, so I could be missing something here. Maybe there’s a rational point of distinction between McDonald and Evans that was raised by the prosecution, or by the Judge in their summing up; or I could be during the jury something of a disservice when, in reality, and they found that point of distinction themselves. However, without more information to go on, I can’t shake the feeling that what seems to me to be a rather incongruous verdict could easily be premised on nothing more solid that a subjective value judgement, on the part of the jury, about it would be ‘normal’ for young women to consent to when they’re drunk and not on whether the victim actually possessed the capacity to give consent. That, I’m afraid, strikes as a rather dubious and unsatisfactory route to a verdict in a rape case not least because it sends an implicit message to rape victims that their odds of getting a conviction may depend, in part, on whether or not their their assailant tried anything kinky during the rape, and that’s just not something that should be a factor.