It is a little while now since the media storm surrounding the Ched Evans rape case died down following the footballer’s acquittal at retrial. Since that time, attention has moved on to a much larger story about alleged sexual wrongdoing in Hollywood, and the prosecution of Harvey Weinstein may well also turn on the issue of consent and the relevance or otherwise of complainants’ sexual histories. Such cases force us to confront difficult and important questions about what the interests of justice require to be made visible and must be kept hidden from view. In an article published just now in the International Journal of Law and Context (‘Ched Evans, Rape Myths and Medusa’s Gaze: a story of windows and mirrors’), I discuss some ways in which the legal debate about defendants seeking to discredit a complainant using details of the latter’s sexual life is itself part of a larger voyeuristic culture. The article considers the decisive second Evans Court of Appeal judgment, and this post offers some reflections that draw on that article.
Appeal judgments often offer up narrative details that seem irrelevant to the legal point at issue, but in fact tell of a deeper significance. Hallet LJ described two men who, on the night in question, sought to watch and film the defendant, his friend, and the complainant (‘X’) through the window of the ground floor hotel room where the incident was taking place. Their efforts were thwarted at a certain point when the curtains were closed. Does this scene not perfectly capture the essence of the case as a whole: the complainant’s identity concealed on one level by curtains as if in a private theatre, and on another by her designation in the legal judgment euphemistically by the letter ‘X’ – that signifier of censored content that simultaneously veils and draws attention? If the vignette of two men peering through a window mirrors a broader cultural voyeurism that surrounded the case, then so too did the Court’s own framing of the legal issue in terms of the justifiability of ‘indulg[ing] in a forensic examination of [X’s] sexual behaviour with others’ [para 74]. As we know, the Court did indeed decide that such ‘indulgence’ was justifiable, on the basis that the testimony of X’s purported acts of consensual drunken, rough and loud sex [paras. 12, 13, 24, 33, 35, 39, 52, 56, 58, 71] – constituted relevant and admissible evidence that a jury could well regard as corroborating Evans’s own testimony that X consented.
What the Evans judgment seems to affirm is something long argued by commentators of variously feminist positions: that there is a certain relationship between the power of visual spectacle and the imperatives of justice that, placed in the context of our existing gendered norms about ‘proper’ sexual behaviour, may disadvantage women. In this case, the evidence in question indicated that X was a violator of traditional feminine norms: that far from a sexual ‘gatekeeper’ of men’s morals X was an aggressive initiator of casual sex, and thus more masculine than feminine in terms of traditional gendered sex roles. Much was written at the time of retrial on how this fact engages the myth referred to by Hallet LJ herself, that ‘unchaste women are more likely to consent to intercourse and in any case, are less worthy of belief’ [para. 44]. Indeed, beliefs of this kind – well exploited by Evans’s defence team in soliciting the fresh evidence – are reinforced by a ‘just world’ philosophy: that ‘bad girls’ like X have no cause to complain about the consequences of their own risky and disapproved-of sexual behaviours.
If it is the case that the Court’s judgment may have reinforced such myths then this is of course a serious matter. However, the judgment is instructive furthermore about what criminal justice ‘sees’ when it turns its gaze on a case like Evans’s. It is to this issue that I want to get, which takes us some way beyond the usual debates about rape culture and what a ‘not guilty’ verdict really means. In finding its way to legitimising ‘indulgence’ in the sexual details of X’s private life, the Court reminds us of that image with which we started: of those tawdry observers peering through the hotel window, hoping to catch a glimpse of X and who understand her only in terms of an object for view. The Court, like those gawping men, thus serves as a mirror of cultural prejudices rather than a means by which to dispel them. This affords an explanation for lingering dissatisfaction (at least among ‘elite opinion’) with the retrial verdict: not on account of the factual question of whether Evans really did rape X after all, but rather the confirmation that the criminal justice gaze is ally to the voyeuristic and objectifying male gaze.
If the Evans judgment represents any sort of failure on the part of the judiciary then, it is a failure of the imagination: to imagine a view from the standpoint of the supposed ‘object’. Finding ways towards accommodating alternative perspectives is one of the key contributions of ‘law and humanities’ approaches to legal studies. What we need is criminal justice that has the imaginative capacity to countenance the object of its gaze ‘looking back’ – that is cognisant of the dangers of objectification and that makes room for something of the spirit of the mythic Medusa. In that myth, the hero Perseus knew that while he looked at Medusa only in the reflection of his polished shield, he was invulnerable to her monstrous feminine gaze. If rape myths are a kind of ‘shield’ that reinforces the male gaze, then the story of how Perseus killed Medusa seems perfectly to literalise that. The aims of feminist critiques of rape myths have tended to rehearse that struggle: to, so to speak, render Perseus’ shield transparent somehow and thereby to force dominant masculinity to reckon with another perspective on the question of what it means to do justice for both defendants and complainants.
David Gurnham, Professor of Criminal Law and Interdisciplinary Legal Studies, Southampton Law School