In 1994, after a massive race-based campaign in the press, the ex-footballer (American variety) OJ Simpson was found not guilty of murder. Commenting upon the case, the columnist George Will suggested that any sane jury would have convicted on ten percent of the evidence presented – with the defence deciding which ten percent. This proves, he added wittily, that a black man indeed can’t get a fair trial in America.
At the time I thought that the case brought into question the validity of the jury system, as it is today. Don’t get me wrong. In this world we aren’t blessed with perfect institutions, and every system of human justice will be flawed. However, of the available choices, I’m convinced that the jury system is the best – in theory. Actually, best in practice too, or rather it was during the centuries we could easily find 12 just men who understood what justice meant. It’s debatable whether this is still the case, and the verdict in the McDonald and Evans case strengthens the contra arguments.
The facts, as established at the trial, are clear-cut. The professional footballer Clayton McDonald picked up a girl in the wee hours of morning. The girl was the worse for wear, and her clothing was in disarray. Uncoerced, she got into a cab with McDonald, who then took her to a hotel where they had sex. Another footballer, Ched Evans, then walked in to catch the act in progress. Being a sharing kind, McDonald invited Evans to join in, which he did, while his brother and another man were trying to film the action with their phone cameras.
The next morning the girl woke up naked in bed and reported rape. The two footballers were arrested and tried, and now we know the verdict. I’d like to emphasise here that the verdict was passed on their criminal culpability, not their moral character. I wouldn’t hold them up as role models for children to follow, but they are after all footballers, not residents of Mount Athos. The question is, did they commit a crime?
The prosecution claimed they did, as the girl was in no condition to consent to sex. The defence countered that, though drunk, the girl could have said ‘no’ and therefore wasn’t raped.
As far as I’m concerned, there were only two possible ways out of this impasse. One, the prosecution is right, the girl didn’t consent, in which case we’re dealing with a vile crime whose perpetrators should be locked up for as long as the law allows (while those filming their crime can legitimately be charged with complicity). Two, the defence is right, the girl did consent, in which case the defendants should walk.
One would think that these are the only two logical options. However, the jury of 12 Solomons found a third one: they acquitted McDonald and convicted Evans, who was then sentenced to five years.
I don’t get this. The acquittal of McDonald suggests that his sex with the girl was consensual, meaning she was sober enough to have played along. However, when Evans’s turn came, the girl, now presumably drunker than before, had lost the ability to consent and was therefore raped.
It is of course plausible that the same woman who willingly went into a casual fling then balked when her new-found love invited his friend to jump aboard, thus turning the fling into an orgy. I can see her covering herself up and screaming, ‘Hey, what’s going on there?’ If Evans then forced her, he is a criminal and should be imprisoned – while McDonald and the two cameramen are accessories. But that’s not what the prosecution claimed, if the press accounts are to be believed. Their claim was that girl was too drunk to say no to the second act, though not the first.
Now I’ve been known on occasion to drink more than is good for me. My experience suggests that, rather than becoming more intoxicated, a drunk person sobers up with the passage of time. This means that the girl (whom the jury obviously found to be sober enough to agree to get into a cab with a stranger, go to a hotel with him and then have sex) would have been unlikely suddenly to become so drunk during intercourse as to lose the ability to say ‘no’.
Hence either she was incapacitated throughout, in which case the whole gang are guilty of a ghastly crime (possibly to varying degrees), or she was sufficiently compos mentis to have consented to both acts, in which case they are both only guilty of vulgarity. And that, in my view unfortunately, hasn’t yet been criminalised.
It’s possible, indeed likely, that the press coverage of the trial omitted some key facts that had swung the case the right way. But it’s also possible, indeed even more likely, that the jury had been brainwashed to accept politicised arguments in cases such as this. And such arguments have been known to make people put their critical judgment on hold – provided they were capable of it in the first place.
If that is what really happened here, then justice has suffered. Also suffering will be those victims of vicious rape whose plight has been put into the same category as highly dubious cases and thereby trivialised. One wonders about today’s jury system.