Skip to main content

In the past few weeks there have been many people expressing their views on convicted rapist and ex-footballer Ched Evans. Sadly (but unsurprisingly), many of those are ignorant of either the law, the case, or both. From the aggressive, uninformed die-hard supporters calling the rape victim “whore” to the legal uncertainties of more balanced posters, the same questions keep circulating on social media: 

How can it be rape if the victim can’t remember if she consented or not?

How can Ched Evans be guilty of rape if his co-accused Clayton McDonald was acquitted?

If Evans is guilty of rape, then surely any drunk girl who has sex can say she’s been raped?

Despite the fact that Clayton McDonald was acquitted and despite the victim’s hazy memory of that night, there is no doubt in this case, reasonable or otherwise, that this was rape. Here’s why.

The Meaning of Consent

The law states that consent from someone incapable of meaningful consent is not consent. By “incapable of consent” we’re not talking about being merely drunk, we’re talking about being incapacitated; someone who can barely walk, is falling over, is vomiting and urinating on themselves. Which the victim was. If she cannot remember consenting or having sex then she was too drunk to give meaningful consent.

This is accepted in the eyes of the law and NOT just as it applies to rape. Take legal contracts, for example. An intoxicated person may sign their consent to something but the diminished capacity to make that decision means that full consent cannot be there, and more importantly, cannot be assumed.

This is the difference between the case of Clayton McDonald, who was acquitted of rape, and Ched Evans, who was convicted. This is also the reason why the fear that all drunk sex can be compared to rape is entirely unfounded. Clayton McDonald met the victim that night and she willingly went back to his hotel room. Because of this, he could show that he had a reasonable belief to assume her consent.

Ched Evans did not have that excuse.

On receiving a text from McDonald stating that he’d “got a bird” who was “blotto”, Evans at once turned his taxi around and headed to his friend’s hotel. Right from the off, he assumed consent from a total stranger, a stranger whom he knew full well was incapacitated: he admits being “forced to step over” the victim’s body when she slumped down in the take away he’d been in previously. He assumed consent to the point where he even contacted his brother and friend and told them where he was going – so they could hide outside the window and film it.


While Evans isn’t known for his searing intellect, it’s difficult to believe that a person can actually step over the drunken body of a woman and not automatically think she’s clearly too intoxicated to engage in a sexual encounter.

Many people might also find it a little reprehensible that someone would step over a person who’d fallen in front of them, rather than help them up or enquire as to their wellbeing – but it’s not a crime to be callous. It is a crime to rape someone you know to be incapacitated through alcohol. And what better example of not just Evans’ full knowledge of her level of intoxication, but also his total disregard for her wellbeing, than to step over her as though she were something filthy he didn’t want to get on his shoe.

Evans lied about his intentions in order to gain a room key from the hotel staff. He gave absolutely no regard to the semi-conscious state of the victim when he entered the room. He had sex with the victim while she was in no state to process what was going on and then, knowing full well the gravity of what he had done, escaped down the fire exit. He left his victim naked, covered in her own vomit and, as his co-accused McDonald admitted, in a state where she “needed looking after.”

When Consent Cannot Be Assumed

This is not a situation where a woman has a few too-many, has sex and then regrets it in the morning so decides to choose the apparently ‘easy’ option of crying rape. If the victim had not lost her handbag in her debilitated state that night, she never would have reported it the police. Because on hearing that she had no memory of that night, and after physical examinations, it was the police who realised that this was most likely a case of rape.

According to the law, it is not the victim’s responsibility not to give “mixed signals” – it is the responsibility of the not-so-drunk person, in this case Ched Evans, not to assume consent where there cannot be any. What possible reasonable belief would Evans have to assume that a woman unknown to him – a woman he knew full well was “blotto” – would want to have sex with a strange man who has just walked into her room?

The idea that this renders all drunken sex as a potential rape is absurd. This is not an issue that should ever affect most men, because most men wouldn’t show up at hotel rooms to have sex with incapacitated strangers on the suggestion of a friend. Most men wouldn’t dream of letting themselves into a room unannounced, knowing there is a drunk and naked woman in there in a compromising position.

This alone belies Evans’ staggering contempt for and dismissal of that teenage girl. Step over her body when she falls. Let yourself into a room when you know she’s naked. Ignore her boundaries, her privacy, her very humanity.

Rape her while you’re at it.

Those who doubt the accuracy of Ched Evans’ rape conviction don’t understand how UK law applies to rape. In a legal sense, there’s no reasonable doubt here. The fact that, according to rape apologists like Judy Finnegan, this was a “non violent rape” doesn’t make it any less of rape. As anyone who has been raped or worked with rape victims will tell you, you do not have to be screaming for help with a knife pressed to your neck for it to be rape.

So no, Ched Evans is not an “alleyway-with-a-knife” rapist, but he is a rapist all the same. And worse than that, he is an unrepentant rapist whose recent hollow apology for the “effects of that night” was motivated by nothing more than a desire to kick a ball around again.



(Thanks to the exceptionally talented Dee Murray for her assistance with this piece.)


  • Brian Pinewood says:

    Clayton McDonald was “legally treading on thin ice”???
    She went to him and decided to go with him!! The fact alone that McDonald had to stand trial is ridiculous.
    Did you attend the trial? Because you mention facts that don’t appear in the case notes. (e.g. no mention that she was covered in vomit. Or that she went to the police only to report the handbag. She said she remembered being “tipsy but not out of control”, hence suspecting her drinks could have been spiked.)
    The problem with this case is, I have read several different pieces on it. No one is neutral, and according to the spin and emphasis on certain aspects, the reader forms a different view. Reading your article I’m quite satisfied that Evans was guilty. However reading others, I’m not so sure. Including the Crown case notes.
    This must have happened to the jury too. Impossible to present a case like this without spin or bias. The police and CPS have a bias in favour of the complainant, it’s in their interest to do so (although it’s guilt that should be demonstrated, not innocence. And in this case the complainant never actually claimed she had been raped). This is really a dividing case and if this verdict was really that safe we wouldn’t have so many different opinions. Not everyone who has an inquisitive mind towards it is a rape apologist! I’m against all crime. I just can’t help thinking if I had been in that jury and presented with a witness statement saying “tipsy but not out of control”, what kind of verdict I’d have returned. Bearing in mind also that at no point the complainant had suggested she had been the victim of rape.
    Anyway. Thanks for an interesting read. No doubt I’ll be accused of mansplaining or rape apology, but I’m just taking an interest in this from a social and legislation point of view. No agenda.

    • Selene says:

      Hi Brian. Thanks for your comment. Despite the fact that the victim approached him, legally McDonald was treading on thin ice due to the state she was in. When he left the hotel he told the porter to keep an eye on her because she “was sick” and “needed looking after”, that in itself is evidence she was not just “standard drunk” but was incapacitated. But he was acquitted for the reasons mentioned and if I were on the jury I would have acquitted him too. The victim stated that she woke up in her own vomit and urine and McDonald’s comments about her being sick support the idea that she was vomiting too.

      I’m not saying people who question this are all rape apologists. But from what I’ve seen, the different opinions generally stem from a lack of knowledge of the full facts of the case i.e. people feeling that the conviction is unfair because McDonald got off and Evans didn’t, though the cases are clearly different; or not understanding how the law applies in cases like this.

  • Mac Veigh says:

    Brian, You might like to consider this, too:

    It’s not just a question of consent, but capacity. For example, asking a semi-comatose woman if she wants to have sex with you and her mumbling ‘yes’ is not enthusiastic consent. This is why Clayton MacDonald was charged, but not convicted. The jury weren’t able to agree with certainty whether there was consent or not.
    It’s notoriously difficult to get a rape conviction in this country (see para above). It’s hard to get the police to prosecute, never mind secure a conviction, not least because there are usually no witnesses to the crime. The fact that the jury came to a unanimous decision about Ched Evans therefore speaks volumes. There are literally hundreds of articles about the difficulty of securing rape convictions. Just Google ‘UK Rape conviction rates.’

    Consent must be obtained from the person you have sex with, not from your mate, who might phone you to say he’s ‘got a bird’ and agree to you ‘having a go’ on her.
    It’s irrelevant that you’ve read ‘several different pieces’ about convicted rapist Ched Evans, each with a different spin on the topic. He has some very influential supporters (or rape apologists) like his millionaire father-in-law, who has actively campaigned against his conviction and other supporters who have hounded his victim to the extent that she’s had to move house more than once and change her identity. The jury convicted following a court case, fortunately, not on the basis of ‘reading several different pieces’.

    Your assertion that “The police and CPS have a bias in favour of the complainant, it’s in their interest to do so… And in this case the complainant never actually claimed she had been raped)” is interesting. Can you back this up?
    It’s true the complainant never claimed she had been raped; convicted rapist Ched Evans’ own testimony was used to prosecute him. His only ‘misunderstanding’ was that he did not consider that what he did was rape. He thought it was okay to stick his penis into a drunk woman while his brother and friends attempted to film the act through a window.

  • Ian says:

    I would also have no problem in acquitting McDonald – he may have had a reasonable belief in her consent – and convicting Evans – beyond any reasonable doubt, had not. You’ve even missed out several of the reasons for saying that, like the way that both McDonald and Evans say she was asked if she wanted Evans to “join in”, but both denied that they had been the one to ask. If they didn’t ask, who did?!?

    But did Evans really summon his brother and the other friend from somewhere else? My understanding is that the three of them arrived in a taxi together.

    In any case, that they managed to be outside the right window before he arrived in the room, uninvited, unexpected, and unwanted, does indeed strongly suggest he told them where to go to commit the offence of voyeurism. (Does anyone know why they weren’t prosecuted for that? Being too incompetent to film someone having sex without their consent isn’t a defence – the attempt to do so is enough – and they didn’t even have McDonald’s consent because he closed the curtain as soon as he noticed it happening.)

  • Sinead says:

    Whatever the girl may have been assumed to have consented to with the first male, she certainly didn’t consent to multiple partners. It’s that easy.
    Why does the assumption that to consenting once to sex, with one man, implies continuing consent to sex with even that man alone, never mind his freinds, STILL persist in the popular imagination?
    If consenting once implied open ended consent – marital rape wouldn’t be a crime.
    Again, it’s THAT easy.

  • Sean Lamb says:

    Hi Selene, good to see you writing on something other than Amanda Knox.

    I am a bit confused how someone can be not too drunk to consent to sex with one person, but too drunk to consent to multiple partners?
    Most of us consume alcohol often in part to lower sexual inhibitions and it seems that she had full control over the amount she consumed. Plenty of women to consent to sex with multiple partners – generally with some level of alcohol involved I assume. So how can we be sure that the complainant – when drunk – wasn’t a willing participant?
    I always assumed too drunk to consent was when the woman was virtually paralytic and passive or if you ask her for sex, she slurs out “wanna go to sleep” or “bluaaddsslupror”. But if she is an active participant – eg giving oral sex without coercion or making sexual demands (assuming you accept the defendants or the night porter’s testimony) then she has she not consented despite being drunk.

    It sounds like if she hadnt lost her bag she would never have gone to the police and perhaps when confronted with the evidence of multiple partners she felt embarrassed in front of the police. Is it not conceivable that someone, when drunk, might have inhibitions lowered to find multiple partners exciting, but unwilling to acknowledge this when sober?

    If active participation is not the yardstick to judge consent while drunk, what is? And how does one determine the different levels of inebriation thresh-holds to determine consent for every possible sex act?

    Also, if you think a drunk woman has diminished responsibility to give consent, is possible – in situations not involving coercion or physical harm – that a man can be drunk enough to have diminished responsibility in order to determine consent?

    • Frank M J says:

      Hi Sean

      Well, the first confusion is actually dealt with in the article, but I can clarify again if you need (hope you don’t mind Ms Nelson but I am finding this more and more tiresome). I would also love to know how so many people ask this question when the answer is very easy to find, very quickly. It’s almost like they don’t WANT an answer. Put simply, the victim was too drunk to consent to sex with both men. However, one of them could show that it was not beyond reasonable doubt that he had reasonable BELIEF in her consent.

      Having control over the amount you consume does not mean that you have control over the affect it has on you, as I’m sure you know if you’re a drinker. Furthermore, the MORE you drink, the LESS control you have over what you consume and what affect it has on you. The fact that other women consent to things does not mean SHE consented to anything, and is a non-sequitur – and an utterly irrelevant point. You also make an assumption as part of it, and admittedly so, which somewhat delegitimises your reasoning. We can be sure that she wasn’t a willing participant, because she was too drunk to be capable of giving meaningful consent. There were a number of witness statements that support this, as well as video of her falling and stumbling, as well as her vomiting, as well as her urinating on herself, and finally going to the police and saying she thought she was spiked on account of how intoxicated she was.

      “I always assumed too drunk to consent was when the woman was virtually paralytic and passive or if you ask her for sex, she slurs out “wanna go to sleep” or “bluaaddsslupror”.”

      That is too drunk to consent, but it’s not the minimum standard. Hopefully this will have taught you something? Women who are falling over, losing their bags, vomiting, urinating, or described as ‘extremely drunk’ and ‘slurring’ by witnesses are too drunk to consent.

      “But if she is an active participant – eg giving oral sex without coercion or making sexual demands (assuming you accept the defendants or the night porter’s testimony) then she has she not consented despite being drunk.”

      The defendants are the only ones who testified to her sexual demands and active participation. The night porter merely heard noises. Nonetheless – too drunk to consent is too drunk to consent. There is a possiblity that drunk women can consent, it has been provided for in law – this is not one of those times.

      “perhaps when confronted with the evidence of multiple partners she felt embarrassed in front of the police.”

      Who confronted her? Why would the police confront her about her sexual partners? The police didn’t know about sexual partners when she went to them? They didn’t know about the rape until after Ched Evans told his story. That’s rather far fetched. She never said anything except she doesn’t remember what happened.

      “Is it not conceivable that someone, when drunk, might have inhibitions lowered to find multiple partners exciting, but unwilling to acknowledge this when sober?”

      That is conceivable, but not relevant in the context of this case. If active participation is not the yardstick to judge consent while drunk, what is? The level of intoxication, the actions of the person instigating sex, the ability to know what you are actively doing while participating. Jury ruled – she did not. She was too drunk. You realise there is a large spectrum of drunken behaviour, it doesn’t just go sober… tipsy… unconscious.

      “And how does one determine the different levels of inebriation thresh-holds to determine consent for every possible sex act?”

      They would all have the same threshold, and if you are asking for personal reference, I’d say use the common sense that most people use. If someone is falling over and stumbling and slurring, and you are worried they might be too drunk to consent to sex, leave them alone and see if they feel like it in the morning.

      “is possible – in situations not involving coercion or physical harm – that a man can be drunk enough to have diminished responsibility in order to determine consent?”

      I’m afraid being drunk is not an accepted defence for committing a crime. Again, if you are worried, don’t get really drunk and have sex with women,

  • Bob Jones says:

    As you say, most men are not of a mind to barge into a hotel room seeking to have sex with its female occupant. But far from lessening the potential of all drunken sex to be considered rape, this only increases it.

    The vast majority of rape victims know their attacker. With that said, and likely taken into consideration by any jury, what defense can any man ever have when falsely accused of rape, by a woman known to him, when both have been drinking?

    What sort of proof do you expect a man to acquire from someone he would likely consider, at the very least, a friend? A signed declaration? A voice recording of the woman consenting? How does a man ever protect himself in such circumstances? Carry a breathalyser?

    Perhaps everyone should only ever have sex sober? Would women be happy with men refusing to sleep with them once they’d had a glass of wine?

    And how is Macdonald “lucky”? The girl agreed to go to the hotel, no?

    • Frank M J says:

      How does men not barging into hotel rooms on naked women increase the potential for all drunken sex to be considered rape? That’s a strange and vague claim, one without basis and the paragraph is a non-sequitur.

      It’s difficult to answer your question about what defence a man can ever have. It’s an utterly vague hypothetical – have they had consensual drunken sex? Do they both remember it? What has knowing him got to do with the overall question you pose? Why is she falsely accusing him? What’s her motive? Just for the laugh? Did she ‘regret it’? Why would the way to deal with regret be to draw as much attention to it as possible? Why would she do this to someone who – in your hypothetical scenario – is ‘at the very least, a friend’?

      A signed declaration would plainly be ridiculous. For one thing, consent isn’t something you sign like a contract, it’s an ongoing understanding between two people that they both enjoy or at least want what is happening. It can be revoked at any point. Same with a voice recording.
      The defense a man who sleeps with a woman too intoxicated to consent is that he may be able to show, as CMcD did, that he had the reasonable belief in her consent.

      If this is something you still find terrifying, and genuinely feel that the risk of your friends saying you raped them is too great, I would actually suggest that you only ever have sex sober. But that’s an extreme response to an irrational fear. Most people are perfectly well able to navigate sex and alcohol and friendship without crippling themselves with irrational fears or destroying each other’s lives – people have drunk sex all the time and nobody accuses anyone of anything. I can’t help but wonder what kind of sex lives people have were this sort of thing is an actual worry.

      You ask what ‘women’ would be happy with ‘men’ doing. A patently ridiculous question. Men and Women are not two separate but homogenous lumps. All you can do is what you feel best protects you. By all means, only sleep with sober women. If you think so very little of women, perhaps sleep with none at all, to be extra safe. I, personally, have sex with women who I am very very very sure want it, and whether we are drunk or not makes no difference. I’ve never once felt a moment’s anxiety about a woman I know suddenly turning into a vindictive liar, and if one ever did. I suppose I’d tell my truth and hope I am believed, the way rape victims do when their rapists insist they wanted it.

      McDonald is lucky because the law states that rape is a person (a) penetrating another (b) without their consent and (c ) without a reasonable belief that they were consenting. McDonald had sex with an ‘extremely drunk’ girl he barely knew, and was therefore charged. He knew she was out of it, asking the hotel porter to look after her, seeing her fall over, seeing her stumble. He had sex with her anyway. To her, this may feel like rape but isn’t legally, without Mens Rea.

      But he was able to put enough doubt in the minds of the jury about his reasonable belief that they found him ‘not guilty’. Having sex without someone who is able to consent to it is skating on very, very thin ice. The jury’s acceptance of – or belief in the possibility of – a lack of Mens Rea in his case was fortunate for him, because had they not accepted that a woman going to a hotel room with a man was enough for that man to believe she was consenting to sex, then he would have been locked up like his rapist mate.

      Agreeing to go to a hotel is not a carte blanche to stick your cock wherever you like.

  • Drew says:

    When your found guilty by a court of your peers your guilty. All the gum flapping after the fact is irrelevant. Ched needs to give a meaningful apology and find a new career. One that isn’t kicking a bag of wind around.