Ched Evans is a 23-year-old British footballer who played for Sheffield, and was just starting to make an impact as a talented striker. Last month, he was convicted of rape over an incident last May in which he slept with a woman who had been drinking. The sex was apparently consensual, but the judge found that the girl’s intoxication, indicated by CCTV footage of her with Evans’ friend before the incident, invalidated any consent.
Both Evans and his friend, co-defendant Clayton McDonald, slept with the girl that night, but only Evans was convicted. Since the conviction, a further 13 people have been arrested for allegedly releasing the woman’s identity through Twitter, so that makes 15 arrests so far over one case of drunken sex.
Although there are a lot of problems with tying consent to sobriety, the biggest is the assumption that consent is presumed to be absent, i.e. those charged with rape must provide an affirmative defense, which sets the bar far too low for the prosecution in rape cases. What I’m getting at is that the idea is that when a woman is intoxicated, we can’t know for certain whether she would have consented or not otherwise. So, the court has decided that the default is nonconsent. If this applies in drunken sex, it applies elsewhere where consent is unclear. This means that unless a man can prove in court – while facing a determined prosecutor – that a woman intended to have sex with him, he can be convicted of rape.
Under the old standard, the default assumption was that sex acts are consensual, barring proof, such as coercion and/or assault, that they were not. This put the burden of proof on the prosecution. For example, if a woman went out drinking and then went to a hotel room with a couple athletes and had sex with them, the assumption would be that that was what she intended to do, and a prosecutor would have to come up with evidence that she had somehow been forced into the situation against her will.
Now, however, it has been turned around. We start from the assumption that women do not intend to have sex, even if they drink and enter hotel rooms alone with athletes, and then must establish through some process of investigation that they did, in fact, intend to have sex, to determine that rape did not occur. And if they were drinking, defense is automatically invalidated.
Taken to its logical conclusion, this would result in the imprisonment of perhaps hundreds of thousands of young men every year if it were the law of the land in the United States. Every college party in the US would result in a dozen or so arrests and lengthy prison sentences. It would put more young American men out of commission than WWII. But perhaps that’s the idea.