So when is it rape?

The Ched Evans case has once again opened up the argument of whether girls who stumble drunkenly into hotel rooms with men are “asking for it”. 

Is it rape if she is drunk/stoned and wakes up the next day not knowing what happened? Can it ever be consensual sex if the person you are lying in bed with is practically comatose and unconscious? (And who would want to have sex with an unresponsive partner anyway?). 

Many have asked why the other man in the case, Clayton McDonald, was acquitted while Evans was found guilty. The reason is that video footage showed how McDonald had met the girl by chance in the street, they spoke and she went up to the hotel room with him willingly, implying consent.   

Ched Evans went into the room later and had sex with her as well, something which the girl claims to have no recollection of, so could not have consented to. While Evans admitted to having sex with her, he claims it was consensual. The jury, however, believed the girl.  

When Evans appealed the verdict, he lost the appeal. When he came to pass sentence the judge said: ".... [the complainant] was in no position to form a capacity to consent to sexual intercourse, and you, when you arrived, must have realised that."

There are those who continue to believe that Evans’ case was a miscarriage of justice. In his column in The Sunday Times yesterday, James Calvert wrote a very worrying sentence: “ But as a society, I truly believe it is about time we realised there are different degrees of rape.”

Sorry to sound sexist, but only a man could write a sentence like that. Every woman knows when sex is consensual or not, just as she would know (sometimes too late) when she is in a situation that has spiraled dangerously out of control. 

Consenting to have sex means you clearly know what is happening and are a willing participant, but if a woman has passed out because of drugs or alcohol that is about as clear a case of not being able to consent that I can think of.

Calvert points out that the Evans case boiled down to the footballer’s word against the girl’s and I agree with him that this is true in most cases, which is why we are on a slippery slope. 

I also agree with him when he wrote that: “If that is the basis on which a rape conviction is made, how many ‘rapes’ are committed around the world every day? In fact, how many ‘rapes’ take place in Malta in the post-Paceville hours every weekend? I would wager that just about everyone reading this has, at one time or another, woken up next to someone with a not entirely clear recollection of what happened the night before.”

Where I do not agree with him is that by putting the word rape in quotes, he seems to imply that all the bonking taking place every weekend as guys and girls hook up is always consensual and that no Ched Evans-type encounters ever take place.  

I would hazard a guess, however, that girls being taken advantage of because they are sloshed takes place more often than we might like to think. This is where it gets complicated, especially for women who are now at risk of not being believed if they say they have been raped precisely because they were so drunk. Suffice to say that the girl in the Evans case had her life ruined and had to change her identity when her real name was revealed. 

In the not too distant past, a woman who cried rape was often smeared and discredited by the lawyers of the man she had accused. It was commonplace for her to be questioned about what she was wearing at the time, and to delve into her sexual history. If she was a sexually active female who had had several flings in the past, she was effectively labelled a “slut” and her whole testimony became dubious. 

Not surprisingly, most women were loathe to come forward in these kind of circumstances, describing the ordeal of testifying during the trial as being “raped again.”

It was only due to activism by dedicated feminists and women’s organizations that the word of a rape victim began to be taken more seriously, and that the focus remained on the alleged crime rather than whether the woman had had previous sexual encounters or whether her skirt was too short. 

Despite attempts to make it seem the woman’s fault, men should not be allowed to play the feeble “she made me do it” card; most men are not savage animals unable to control their sexual urges, and a short skirt is not an open invitation to pounce. 

Having said that, I am fully aware that the false sexual assault accusations over the last year have seriously damaged the cause of real rape victims: the word ‘rape’ carries with it extreme responsibility and should not just be bandied about.

Behind closed doors, of course, is where the lines become blurred and where it becomes even more of a serious accusation. The Pandora’s box opened up by the Ched Evans case is something many can relate to; as James Calvert rightly pointed out, there are countless one night stands taking place all the time as a result of a wild night out at Malta’s clubs, bars and parties. 

I know that these days girls are just as promiscuous as the guys and I’m not about to suggest that the decision to have sex always comes from the men. Ultimately, I feel that everyone has to be accountable for what they do and the decisions they take.

Both men and women need to realize that getting pissed to the point of being paralytic is not the ideal scenario for a sexual encounter - no matter how you look at it, it can only lead to trouble. Apart from STDs and possibly pregnancy, there is now sexual assault to contend with. 

I know that (unfortunately) appealing to basic common decency might sound passe, so I’m going to be more pragmatic. Girls, if you’re not thinking clearly, you cannot possibly be in a position to know if you really want to have sex with a guy you just met. And how do you know that his friend or friends are not lurking in the next room, waiting for their turn? 

And guys, even if you have no respect for the girl as a human being, why on earth would you want to go to bed with someone who is completely out of it, with the very real risk of being accused of rape the next day? Just walk away.

That one wild night might just be the time your life will be ruined forever. Just ask Ched Evans.