How an Athlete Used His Alleged Victim's Sexual History in His Rape Acquittal

In a highly unusual move, the judge in Evans' retrial allowed the prior sexual history of the alleged victim to be admissible in court evidence. The complainant's previous sexual partners took to the stand and described her behavior in bed, specifically that she liked to have sex "doggie style" and used the phrase "go harder" while having drunken, but consensual, relations with them. Prosecutors argued that testimony could have been influenced by the £50,000 reward offered by Evans' defence team for relevant information leading to his acquittal or release, though this was denied by the two new witnesses.

Prior sexual history is not commonly admissible in English rape cases, and the decision to do so was criticized by women's rights groups and legal experts after the verdict. "We are very concerned at the precedent which might have been set in this case for allowing sexual history of complainants to be admissible evidence. The rules which prevent this are extremely important and are critical in trying to secure justice in rape cases," End Violence Against Women co-director Rachel Krys said in a statement. "In addition to this there are reports that the defence offered a 'bounty' for such testimony. This is extremely worrying."

Here are the facts of the Ched Evans case, as set out in court filings. On May 29, 2011, Evans and fellow footballer Clayton McDonald went out drinking in a small Welsh town. At around 4 AM, McDonald came across a 19-year-old waitress, who is identified as X in court materials. The two took a taxi to head to McDonald's hotel, with the footballer texting Evans to tell him that he had "got a bird."

A member of staff at the Premier Inn saw McDonald and the girl, describing her as "extremely drunk." Evans arrived at the hotel in a taxi and went to McDonald's room ten to fifteen minutes later. In court, Evans said McDonald invited him to join in, and that he performed oral sex on X and had sex with her from behind as she used the words "fuck me harder."

The next morning, X woke up naked, disoriented, and alone; she contacted the police hours later to request assistance. She did not say that she believed she had been raped, only that she had no memory of the night's events. In a police interview, McDonald and Evans admitted to having sex with X. They were charged and eventually prosecuted for rape on the basis that X was too drunk to consent. While McDonald was acquitted of rape, Evans was convicted and sentenced to five years in prison. He eventually served two and a half years.

Evans maintained his innocence throughout the trial and post-conviction. X, he says, was a willing and enthusiastic participant—despite the fact that he never spoke to her before or after their sexual activity. To complicate matters, Evans' supporters have repeatedly targeted X on social media, forcing police to rehouse her in a nearby town. Despite the fact that she is entitled under British law to lifelong anonymity, she has been repeatedly victim blamed and named online, forcing her to change her name at least five times.

In April 2016, Evans' convicted was quashed at London's Court of Appeal. Central to his defence at the retrial was the testimony of the two new witnesses, who had slept with X and claimed that she had used similar language with them while having sex with them doggie-style. One of the men had sex with X two weeks after her alleged rape, and according to court documents was motivated to come forward as he couldn't understand "why she would sleep with someone so soon after a rape."

The principle that prior sexual history is not admissible in rape cases is the product of a long struggle by feminist legal scholars in the 1970s. It was first introduced in 1976, but subsequently tightened in the Youth Justice and Criminal Evidence Act of 1999. At its heart, the law aims to exclude misogynistic views about sexual propriety from the criminal justice system.

Former solicitor general Vera Baird describes the Evans verdict as a huge reversal of the rights of rape victims. "We've gone back… probably about 30 years," she says in a BBC radio interview. "He has called some men to throw discredit on [the woman's] sexual reputation… That, I think, is pouring prejudice, which is exactly what used to happen before the law in 1999 stopped the admission of previous sexual history in order to show consent."

Media reporting around the Evans' case framed it as a huge setback for victims of sexual violence, who may now fear that their sexual past will be dragged through the courts if they come forward. But while the verdict is undoubtedly disturbing, one legal expert says it does not fundamentally change the law.

"Technically, the Ched Evans case does not set a legal precedent," explains Professor Clare McGlynn. She is an expert on sexual violence and the criminal justice system at the University of Durham. Contrary to inaccurate media reports following the verdict, she says, Evans was acquitted under existing laws.

"The judges didn't change the law," she goes on, "they just applied it to the facts of this case in a way that surprised some of us." The complainant's prior sexual history was admissible under section 41 of the Youth Justice and Criminal Evidence Act 1999. It allows for prior sexual history to be used as evidence if it is so exceptionally similar to previous behavior from the complainant that the similarity cannot reasonably be explained as a coincidence.

In this case, the fact that two men drunken sex with X in the same position, during which she used a similar phrase, was used successfully in Evans' defence that he reasonably believed X was consenting to sex. McGlynn is unconvinced. "I don't think the sexual acts and the words used in the case are exceptional, as suggested in court." In fact, one of the new witnesses didn't mention the specific phrase "fuck me harder" in his initial evidence to Evans' defence team, only mentioning it after the footballer was convicted.

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The Evans case has damaged many lives, including his own and the complainant, who is now reportedly moving to Australia to escape the publicity and even death threats resulting from the trial. And while no legal precedent has been set, it may still have profound legal implications for future survivors and victims.

"In practice, [the case means] that it's easier than we thought to have sexual history evidence with a third person allowed in court," McGlynn explains. "I suspect defence lawyers will seek to use sexual history evidence with third parties in more cases now. We've given them the green light."

The result? "There is a very real risk that victims will be deterred from reporting to the police as they fear that it is them, and their sex lives, being put on trial." With around 60 percent of rape cases going unreported, and very few alleged rapists ever convicted, further disincentives on women reporting are exactly what we don't need. The solution?

"We urgently need a review of this area of law," McGlynn argues. "We need to consider whether the law needs changing. And ultimately, we need to have a national conversation about whether it really is OK to have your sexual experience with someone else used in a trial about consent with the defendant in the case."