TW: Rape, Sexual Assault.

Charlotte Bailey explains why a victim’s previous sexual activity should not be used to illustrate a person’s willingness to engage in other sexual behaviour.

In a society that continually condemns female sexuality, it now appears the courtroom is no exception. After Ched Evans’s previous conviction of rape dating back five years ago, the footballer’s alleged crime has been retracted after an account of the victim’s past sexual behaviour.

Whilst the validity of ‘evidence’ used in celebrity legal cases is not something of a new phenomenon, the use of the victim’s previous sexual history and preferences in Evans’s trial remains something of a publicised first. Evans’s lawyers produced two men who provided evidence that she was ‘sexually brazen’ in encounters both before and after her ordeal, thus leading to his newly proclaimed innocence.  

The fact that the victim’s previous sexual history is given more attention than Evans’s behavior highlights society’s backwards way of thinking. Given the victim’s level of intoxication, as shown by the fact that she could not remember her evening with the footballer, it appears the understanding of consent is far more questionable than the victim’s sexual history.

A victim’s previous sexual activity should not be used to illustrate a person’s willingness to engage in other sexual behaviour. However, as seen by the Brock Turner trial earlier this year, another white middle-class male, it is becoming harder for victims to prove their innocence in the face of privileged defendants. Like Turner, Evans is now pushing for better consent education in schools. Whilst there is no question that consent lessons are vital, perhaps Turner and Evans should own up to their actions rather than using alcohol and a lack of education as a means to excuse sexual violence.

Vera Baird QC suggests that there is a history of cases like this one, claiming that defendants in rape cases have often called on previous sexual partners to evidence a woman’s promiscuity. Rather than repeatedly calling women’s sexual behaviour into question, it is society’s attitude towards victim-blaming and female sexuality that needs to undergo examination.

The popularity of simple YouTube videos, using tea as a metaphor to explain consent or the Swedish campaign ‘Dear Daddy’, shows that the essence of consensual sex – being able to agree to activity with no extraneous factors of intoxication or emotional pressure – is still one that needs explaining. Although it is evident that this concept remains misunderstood by a handful of people, it is important to unite against mentalities such as these for future legal cases. The animosity aimed at the verdict of Evans’s case provides hope in showing that rape culture is becoming less tolerated. With wider media campaigns slowly beginning to break down this contagious attitude towards female sexuality, it is possible that these hypocritical misconceptions of promiscuous behaviour can be shattered before it happens again in the courtroom.

Image by Joy Molan