“Dr. Kearney or: How I Learned to Stop Worrying and Love Impostor Syndrome”

by Eve Kearney


I was at a family gathering recently, when as I was stuffing my face with free, home cooked food, an aunt approached me and said the words that all research students dread: “How’s being back at school going?” Apart from making it sound like I’m back wearing a uniform and taking my Junior Cert again, that question makes me stifle a sigh of despair.  I only started my PhD in English in September, and am still struggling to define what my actual research project will be on, so condensing it to a party-friendly sound bite is definitely not on my radar at the moment, nor is answering the follow up question that always comes: “And what are you going to do with that?”  In short, Aunt Jen, I don’t know how my research is going, and I sure don’t know what I’m going to do in four years with another diploma in my hand and a few more letters after my name.

The past few months have shown me that despite what I was preparing myself for, a PhD is hard.  Sure, it’s not as hard as being a real doctor and saving lives, or starting a family, or moving to a brand new country like so many of my friends are doing right now, but compared to a BA, or even a Masters, it is hard.  Gone are the days of going to class and having your ideas validated, or being graded, or even being able to discuss ideas with your friends – if I want to discuss contemporary masculinities, my fellow PhD friends will want to talk about the Victorian bestseller, or medieval syntax discrepancies.  My supervisor has been nothing but helpful and supportive, but every time I re-read an email draft, making sure it hits the right tone of humour and intelligence, I internally cringe as I hit send, fearing that I’m being too needy or bothering her with my questions – after all, I am a strong, independent, researcher who don’t need no hand-holding…right?

My whole academic career, I knew I wanted to do a PhD – I knew that coming up with original ideas and contributing to my field was for me, and even after I took a year out after my Masters, moving to Canada and starting a new life, the decision to come back to Dublin to work with some incredible people was never difficult. I have been encouraged by countless members of the department that my research ideas are good, and heck, I got As through all of my undergrad, but yet, to this day I’m still not convinced that my thesis is worth dedicating four years of my life to.  Impostor Syndrome is a very real part of academia, and a study as early as 1978 showed that it’s more likely to affect high-achieving females than any other group[1].  Even writing that last sentence made me pause: am I a high-achieving female?  Impostor Syndrome tells me that I’m not, and it tells me that I’ve only gotten this far through luck, or charm, or by fooling everyone around me. Likewise, comparing myself to everyone in the department is a trap that I often fall in to.  It seems that every day, someone is getting a grant, or having a paper published, or jetting off to an exciting conference, while I sit at my desk and try to put together an abstract so that I can keep up.  It’s a real struggle to remember that I am good at what I do, that my research matters, is original, will be a benefit to those who read it in the future.  It feels boastful to say that, but it’s the truth, and I shouldn’t be doing a PhD if I didn’t actually believe it.  I’m only in the third month of my research – papers and conferences will come, and hopefully the feeling of success will come with them.

Wait.  If a PhD is so hard and terrible, why am I even sticking with it? Why do I get out of bed every morning and put in the 9 – 5 on campus?  Because if something is hard, it’s worth doing.  And because I really do love every moment of it. Before I started in September, I pictured the next four years of my life as drinking martinis in the staff bar and using fancy words in conversations with other research students.  While it’s turned out that I’m not actually allowed in the staff bar, and I mispronounce most of the words other people around me are using, it’s turned out better than I imagined.  That feeling you get when everything you’ve been thinking about for weeks just clicks, and suddenly you’re typing a couple of thousand words of inspired greatness is unparalleled, even if it turns out that you end up deleting most of it the next day!  The community I’ve found in UCD and beyond of similarly terrified individuals has been a constant support to me – sure, we’re all quietly competing for publication and funding, but if I’m ever freaking out about something, there’s a list of people I can talk to or grab a pint with, and I know I’m on a lot of lists, too.  The challenge of self-discipline and self-motivation is something I’m finding most difficult, but again, when something goes right and everything makes sense, all the wailing and gnashing of teeth suddenly seems worth it.  And the most important thing I’ve learned so far is that drinking on a weeknight or during the afternoon isn’t irresponsible – it’s “networking”!

I was actually “networking” with one of my friends a couple of weeks ago, an amazing researcher in Trinity working on parasites, and we were lamenting about how none of our research was going how we were hoping.  For me, that’s not being motivated enough, for my friend, it’s none of her experiments going as planned – I definitely have it easy compared to a science PhD!  There was a pause in the conversation, and as I looked around, the thought hit me.  “You know what?” I announced. “To everyone else, the fact that we’re doing a PhD is pretty impressive.  Maybe we just need to be impressed with ourselves?”  We laughed and had another pint, but that idea has stuck with me since.  To answer your question, school is going great, Aunt Jen.  And when I’m finished in four years, I don’t know what I’ll do.  But I know I’ll be impressed with myself.


[1] http://www.paulineroseclance.com/pdf/ip_high_achieving_women.pdf


How your brain plans actions with different body parts

Got your hands full? – How the brain plans actions with different body parts

by Phyllis Mania

STEM editor: Francesca Farina

Imagine you’re carrying a laundry basket in your hand, dutifully pursuing your domestic tasks. You open the door with your knee, press the light switch with your elbow, and pick up a lost sock with your foot. Easy, right? Normally, we perform these kinds of goal-directed movements with our hands. Unsurprisingly, hands are also the most widely studied body part, or so-called effector, in research on action planning. We do know a fair bit about how the brain prepares movements with a hand (not to be confused with movement execution). You see something desirable, say, a chocolate bar, and that image goes from your retina to the visual cortex, which is roughly located at the back of your brain. At the same time, an estimate of where your hand is in space is generated in somatosensory cortex, which is located more frontally. Between these two areas sits an area called posterior parietal cortex (PPC), in an ideal position to bring these two pieces of information – the seen location of the chocolate bar and the felt location of your hand – together (for a detailed description of these so-called coordinate transformations see [1]). From here, the movement plan is sent to primary motor cortex, which directly controls movement execution through the spinal cord. What’s interesting about motor cortex is that it is organised like a map of the body, so the muscles that are next to each other on the “outside” are also controlled by neuronal populations that are next to each other on the “inside”. Put simply, there is a small patch of brain for each body part we have, a phenomenon known as the motor homunculus [2].


Photo of an EEG, by Gabriele Fischer-Mania

As we all know from everyday experience, it is pretty simple to use a body part other than the hand to perform a purposeful action. But the findings from studies investigating movement planning with different effectors are not clear-cut. Usually, the paradigm used in this kind of research works as follows: The participants look at a centrally presented fixation mark and rest their hand in front of the body midline. Next, a dot indicating the movement goal is presented to the left or right of fixation. The colour of the dot tells the participants, whether they have to use their hand or their eyes to move towards the dot. Only when the fixation mark disappears, the participants are allowed to perform the movement with the desired effector. The delay between the presentation of the goal and the actual movement is important, because muscle activity affects the signal that is measured from the brain (and not in a good way). The subsequent analyses usually focus on this delay period, as the signal emerging throughout is thought to reflect movement preparation. Many studies assessing the activity preceding eye and hand movements have suggested that PPC is organised in an effector-specific manner, with different sub-regions representing different body parts [3]. Other studies report contradicting results, with overlapping activity for hand and eye [4].


EEG photo, as before.

But here’s the thing: We cannot stare at a door until it finally opens itself and I imagine picking up that lost piece of laundry with my eye to be rather uncomfortable. Put more scientifically, hands and eyes are functionally different. Whereas we use our hands to interact with the environment, our eyes are a key player in perception. This is why my supervisor came up with the idea to compare hands and feet, as virtually all goal-directed actions we typically perform using our hands can also be performed with our feet (e.g., see http://www.mfpa.uk for mouth and foot painting artists). Surprisingly, it turned out that the portion of PPC that was previously thought to be exclusively dedicated to hand movement planning showed virtually the same fMRI activation during foot movement planning [5]. That is, the brain does not seem to differentiate between the two limbs in PPC. Wait, the brain? Whereas fMRI is useful to show us where in the brain something is happening, it does not tell us much about what exactly is going on in neuronal populations. Here, the high temporal resolution of EEG allows for a more detailed investigation of brain activity. During my PhD, I used EEG to look at hands and feet from different angles (literally – I looked at a lot of feet). One way to quantify possible effects is to analyse the signal in the frequency domain. Different cognitive functions have been associated with power changes in different frequency bands. Based on a study that found eye and hand movement planning to be encoded in different frequencies [6], my project focused on identifying a similar effect for foot movements.


Source: Pixabay

This is not as straightforward as it might sound, because there are a number of things that need to be controlled for: To make a comparison between the two limbs as valid as possible, movements should start from a similar position and end at the same spot. And to avoid expectancy effects, movements with both limbs should alternate randomly. As you can imagine, it is quite challenging to find a comfortable position to complete this task (most participants did still talk to me after the experiment, though). Another important thing to keep in mind is the fact that foot movements are somewhat more sluggish than hand movements, owing to physical differences between the limbs. This circumstance can be accounted for by performing different types of movements; some easy, some difficult. When the presented movement goal is rather big, it’s easier to hit than when it’s smaller. Unsurprisingly, movements to easy targets are faster than movements to difficult targets, an effect that has long been known for the hand [7] but had not been shown for the foot yet. Even though this effect is obviously observed during movement execution, it has been shown to already arise during movement planning [8].

So, taking a closer look at actual movements can also tell us a fair bit about the underlying planning processes. In my case, “looking closer” meant recording hand and foot movements using infrared lights, a procedure called motion capture. Basically the same method is used to create the characters in movies like Avatar and the Hobbit, but rather than making fancy films I used the trajectories to extract kinematic measures like velocity and acceleration. Again, it turned out that hands and feet have more in common than it may seem at first sight. And it makes sense – as we evolved from quadrupeds (i.e., mammals walking on all fours) to bipeds (walking on two feet), the neural pathways that used to control locomotion with all fours likely evolved into the system now controlling skilled hand movements [9].

What’s most fascinating to me is the incredible speed and flexibility with which all of this happens. We hardly ever give a thought to the seemingly simple actions we perform every minute (and it’s useful not to, otherwise we’d probably stand rooted to the spot). Our brain is able to take in such a vast amount of information – visually, auditory, somatosensory – filter it effectively and generate motor commands in the range of milliseconds. And we haven’t even found out a fraction of how all of it works. Or to use a famous quote [10]: “If the human brain were so simple that we could understand it, we would be so simple that we couldn’t.”

 [1] Batista, A. (2002). Inner space: Reference frames. Current Biology, 12(11), R380-R383.

[2] Penfield, W., & Boldrey, E. (1937). Somatic motor and sensory representation in the cerebral cortex of man as studied by electrical stimulation. Brain, 60(4), 389-443.

[3] Connolly, J. D., Andersen, R. A., & Goodale, M. A. (2003). FMRI evidence for a ‘parietal reach region’ in the human brain. Experimental Brain Research153(2), 140-145.

[4] Beurze, S. M., Lange, F. P. de, Toni, I., & Medendorp, W. P. (2009). Spatial and Effector Processing in the Human Parietofrontal Network for Reaches and Saccades. Journal of Neurophysiology, 101(6), 3053–3062

[5] Heed, T., Beurze, S. M., Toni, I., Röder, B., & Medendorp, W. P. (2011). Functional rather than effector-specific organization of human posterior parietal cortex. The Journal of Neuroscience31(8), 3066-3076.

[6] Van Der Werf, J., Jensen, O., Fries, P., & Medendorp, W. P. (2010). Neuronal synchronization in human posterior parietal cortex during reach planning. Journal of Neuroscience30(4), 1402-1412.

[7] Fitts, P. M. (1954). The information capacity of the human motor system in controlling the amplitude of movement. Journal of experimental psychology47(6), 381.

[8] Bertucco, M., Cesari, P., & Latash, M. L. (2013). Fitts’ Law in early postural adjustments. Neuroscience231, 61-69.

[9] Georgopoulos, A. P., & Grillner, S. (1989). Visuomotor coordination in reaching and locomotion. Science, 245(4923), 1209–1210.

[10] Pugh, Edward M, quoted in George Pugh (1977). The Biological Origin of Human Values.


Peacekeeper Sexual Exploitation and Abuse: Can Countries Actually Punish their Peacekeepers?

Trigger warning: This article deals with the very serious issue of sexual exploitation and abuse of women and children by UN peacekeeping personnel.

By: Dr. Melanie O’Brien

Allegations of peacekeepers committing sexual exploitation and abuse (SEA) are not new. They arose in the missions of the 1990s, such as the UN Transitional Authority in Cambodia (UNTAC) and missions in the former Yugoslavia. Use of prostitutes and sexual exploitation of women by visiting military forces goes even further back- a tradition with a long history.

The background, the numbers

The UN has spent over a decade trying to stamp out SEA by its peacekeepers; starting with a bulletin issued by the Secretary-General in 2003, setting the UN’s ‘zero tolerance policy’ on SEA. The statistics show that its actions were, in part, succeeding. While they had not managed to eliminate the criminal conduct, allegations dropped significantly. In 2005-6, allegations peaked at 357 and 340. By 2014, allegations hit an all-time high at 51. Yet in 2015, a new scandal hit, and allegations rose again for the first time since 2009, with 69 allegations. In addition, non-UN French peacekeepers were accused of SEA, and the UN was found to have behaved with gross negligence in failing to act on the information they had about these allegations. In 2016, the Security Council passed its first ever resolution on peacekeepers and SEA (Res 2272). The US Representative to the UN, Samantha Power, said it was the first time she really felt like the only woman representative on the Security Council.

What is SEA?

SEA by peacekeepers covers a wide range of activities, from rape and sexual abuse to human trafficking, enforced prostitution, pornography, sexual slavery and sexual exploitation. Victims are women and children (of both genders). Sexual exploitation is a very particular crime; it involves the abuse of the peacekeeper’s position of power and the trust of the victim in order to force sexual activity in exchange for money or goods. It is important to recognise the abuse of power element, because peacekeepers are tasked with protecting civilians, and their abuse of trust is particularly significant. Examples include the exchange of ration packs for oral sex from boys, or the exchange of a hairclip or food as little as an egg for oral sex from girls. There have also been issues of paternity claims due to children born to women engaged in consensual and non-consensual sexual activity with peacekeepers.

What’s being done about it

The UN established a Conduct and Discipline Unit (CDU), tasked with receiving reports of misconduct and carrying out preliminary investigations. Allegations with merit are referred on to the UN’s Office of Internal Oversight Services (OIOS), which then conducts further investigations. However, despite the necessity and good work of these offices, the CDU and OIOS are offices of the UN that can do no more than have a peacekeeper repatriated to their home country. Repatriation is the most serious repercussion for peacekeepers who commit misconduct, including criminal conduct such as SEA. In addition, I have been reliably informed by a UN employee that the UN is too much of a ‘boys’ club’ for SEA to ever really be stamped out- that the will simply is not there to take firm action.

A constant refrain heard is that it is the sending states’ responsibility to punish their own personnel. UN reports refer to the fact that sending states have exclusive jurisdiction over their personnel, and therefore it is up to sending states to punish their personnel. There the discussion ends. Not one report or assessment has considered whether states are actually capable of punishing their own peacekeepers for SEA crimes.

Examining the reality of the repercussions: A case study of Australia & The US

I have undertaken a comparative analysis of the laws of Australia and the United States, in order to determine whether or not these two states have the ability to prosecute their peacekeepers for SEA. The overall finding is: yes, but far from comprehensively. Australia has a much better capability than the United States, although amendments made to the US Uniform Code of Military Justice (UCMJ) in 2013 have improved the USA’s capacity.

Australian law applicable to the Australian Defence Force (ADF) is actually quite comprehensive with regards to sexual offences. Prohibited conduct under various pieces of legislation includes sexual assault, rape, rape of a minor, act of indecency with a minor, child pornography, sexual servitude, child prostitution, forced prostitution, trafficking, slavery, and sexual offences against children (tourism) outside Australia. However, there is no blanket prohibition on prostitution (which is of specific issue in conflict and post-conflict situations), and no proscription of sexual exploitation.

The UCMJ prohibits United States Armed Forces (USAF) personnel from committing patronising a prostitute, pandering, child endangerment, child pornography, rape, sexual assault, child rape, child sexual assault/abuse, forcible pandering, and anal rape. USAF personnel are also subject to the US Code, which outlaws sexual abuse, sexual exploitation of children, child sexual abuse, sex trafficking of children, forced and fraudulent sex trafficking and transportation for illegal sexual activity. These laws lack prohibition of forced prostitution, sexual exploitation of adults, and sexual slavery. While a discussion of this is out of the scope of this article, there are also definitional issues including those of sexual exploitation of children and rape.

The issue of extra-territorial jurisdiction

However, not only is it an issue of whether these countries have provisions in their criminal law that outlaw the SEA being carried out by peacekeepers, but whether these countries are permitted to prosecute their personnel for crimes committed outside their own territory. This is termed ‘extra-territorial jurisdiction’. In this regard, Australia comprehensively ensures that all legislation applying to the Australian Defence Force (ADF) is applicable extra-territorially. This includes civilians accompanying the ADF.

In terms of the United States Armed Forces (USAF), the situation is murky. Crimes under the US Uniform Code of Military Justice (UCMJ) that attract a punishment of greater than one year imprisonment are granted extra-territorial jurisdiction under the Military Extraterritorial Jurisdiction Act, including for crimes committed by civilians and contractors accompanying the USAF or employed by the Department of Defence or any other federal agency. However, this limitation of the Military Extraterritorial Jurisdiction Act  only to crimes with more than one year of punishment excludes extra-territorial jurisdiction over prostitution-related offences, which attract a maximum penalty of only 12 months prison. In addition, the majority of relevant offences under the US Code are not applicable outside the United States, with extra-territorial jurisdiction granted only to crimes involving sex trafficking, labour trafficking, forced labour, slavery and torture. This means that the USA is unable to prosecute its peacekeepers for sexual abuse, sexual abuse of children, sexual exploitation of children and transportation for illegal sexual activity.

The need for reform is urgent

Australia and the USA are countries that pride themselves in setting an example in being at the forefront of criminal law reforms, and they are indeed far ahead of many other countries with regards to proscribing sexual offences. However, it is evident that even these two countries are not fully capable of prosecuting their peacekeepers for SEA crimes. Where does this leave us, then, with regards to countries that are major troop contributing states, such as Bangladesh, Pakistan and India, where sexual offences are not taken seriously at a domestic level and legislative provisions are seriously lacking?

If the UN is ever going to seriously eliminate SEA by peacekeepers, then the new UN high-level task force on SEA needs to work with states to amend domestic laws in order to ensure that after repatriation, assuming the will to punish is there, so is the ability. Otherwise, peacekeeper perpetrators will continue to simply be repatriated with impunity, and these serious SEA crimes will endure.

For more on Resolution 2272, read Dr. Sarah Smith‘s piece ‘Introducing Resolution 2272: Preventing Sexual Exploitation and Abuse by Peacekeepers.

Gender and terror – woman first, fighter second?

Gender and terror – woman first, fighter second?

by Ashleigh McFeeters

As acts of political violence flood local and international news media outlets, it is imperative that academic study scrutinises, and if necessary, challenges, these news media representations. For the majority of people watching, listening to, or reading the news, these representations are the only information that they will receive. Hence, the content of these portrayals and how they are produced, have a significant impact on news consumers’ ideologies and understandings of political violence.

What is more, violence (and most threats to security) are deemed a primarily male domain. Women’s involvement in political violence jars with this ‘masculine endeavour. Women who commit acts of political violence are not depicted simply as combatants, freedom fighters or terrorists, but their representations in the news media are gendered. The terms female combatant/freedom fighter/terrorist are pregnant with gendering, as not only does the adjective ‘female’ come before combatant/freedom fighter/terrorist, which highlights her gender before her actions, but the fact that her gender must be qualified speaks volumes about the palatability of women engaging in political violence.

As the news media have a significant role in mirroring, creating and perpetuating social norms, the consequences of this is that the categories of representation can be adopted by news consumers and repeated and reiterated through dialogue and socialisation. The news media may be guilty of underpinning, rather than confronting, the dominant patriarchal culture and subsequently participating in women’s marginalisation in public life.

In society, women are generally defined by traditional gender roles, and these narratives are picked up by the news media and bolstered by repeated depiction. In the news media, women are still depicted using a formula of gendered accounts, especially with a focus on appearance. For example, hits in Google for Amal Clooney are blogs dedicated to her fashion sense. Unfortunately, her impeccable style looms large over her career as a barrister at Doughty Street Chambers. Moreover, Michelle Obama is as well-known for her clothes (Weaver, 2017) as she is for her campaign for female education. Although there is nothing fundamentally wrong with referring to someone’s clothes, when this becomes the be all and end all of a person’s characterisation this is where it is detrimental to women’s equality. If women’s news media portrayal is distilled down to an outfit, this constrains women’s roles to one-dimensional symbols of beauty rather than as figures of change.

This is particularly notable with regards to female combatants, as their acts of political violence are also framed by gender constructions. For example, the online New York Post’s headline ‘She’s Beautiful and She’s an Alleged ISIS Terrorist’ (Rosenbaum, 2015) gives the impression of puzzlement. Why would a beautiful woman choose to be a terrorist as surely her beauty could have been better spent elsewhere?! The currency (and commodity) of beauty is a valuable and looked-for bargaining chip in society, “[t]hey call her the ‘beautiful terrorist with a Mona Lisa smile’ and she’s as wanted as any work by Leonardo da Vinci”(Rosenbaum, 2015). The choice of the word “wanted” alludes to her being sought by authorities for terrorist offences, but also wanted as in desired sexually. The portrayal of her appearance and associated sexuality have overshadowed her political activism, and the fact that the allusion to her looks precedes her occupation underscores the notion that her appearance is more important than her political agency.

Source: http://nypost.com/2015/10/26/turkish-police-hunt-for-smirking-female-isis-suspect/.

Furthermore, the interview of Viner (2001) and Leila Khaled of the Popular Front for the Liberation of Palestine (PFLP) is saturated with gendered connotations: “international pin-up”; “the gun held in fragile hands, the shiny hair wrapped in a keffiah, the delicate Audrey Hepburn face refusing to meet your eye”; “Her cheekbones are still like knives; her eyes are gentle but flicker when moved”. This effusively gendered account of Khaled champions her appearance over her acts of political violence in 1960s and 70s. The oxymoron of the ‘beautiful terrorist’ suggests an uneasiness as beauty and terror are conflated. The paradoxes of sharp cheekbones as signifiers of attractiveness and knives as deadly weapons, and of delicate hands holding lethal arms, are difficult to reconcile. On the one hand, the female combatant is aesthetically pleasing by adhering to the accepted norms of beauty, however, on the other hand, her beauty is balanced with the ugly acts of terrorists. It is challenging to negotiate and navigate between the two notions in the news media. Therefore, in order to acquaint the female terrorist with the news consumer, familiar frameworks of understanding are utilised.

One such framework is the theme of hypersexuality. The Independent.ie calls Idoia Lopez Riano “the seductress ‘Tigresa’ lost her lust for killing” (Govan, 2011a) that alludes to her sexuality and female libidinousness which portrays her as a lascivious profligate. Frequently, female sexuality is referenced to undermine a woman’s credibility and ability. Moreover, an ‘oversexed’ woman is portrayed as having aberrant sexuality which has led her to murder, rather than a conscious and deliberate choice based on political acumen. The “green-eyed femme fatale”(Govan, 2011b) is a seductress rather than a political activist.

Another theme used to characterise female combatants is that of motherhood imagery. Kendall (2015) reports that Mairead Farrell, a member of the Provisional IRA, endeavoured to distance the female volunteers from the Mother Ireland image “because it didn’t reflect what we believed in…we’d moved on from that”. The iconic maternal figure wholly undercuts any form of agency within female combatants by reducing them to flat characters with meaning imbued upon them, rather than revolutionaries with their own agency.

The themes used in the news media categorise the female combatants/terrorists/freedom fighters in such a way as to undermine any form of agency or choice. The female combatant is difficult to articulate to a mass audience, thus short-hand stereotypes paint her with broad brush strokes and whitewash her political activism to present a less threatening woman, rather than a violent agent of change. A significant outcome of preserving the image of traditional feminine passivity in the news media, is that the imagery is internalised by news consumers and this affects how female combatants are seen. By manipulating gendered cultural norms to advance their cause, women have a vital role in paramilitary organisations where certain activities cannot be performed by men without attracting unwanted attention and detection. However, this further exemplifies and solidifies women’s secondary role in society by fostering gender inequality. Women’s emancipation is truncated because social values, expectations and assumptions about women are preserved.

Women are underestimated because of their presumed non-threatening nature; they are not important enough to warrant investigation. Due to this, women can infiltrate areas without detection or suspicion. In addition, the sensitivities to searching women’s bodies allow women to feign pregnancy in order to hide bombs (Bloom et al., 2011).

Therefore, when the news media keeps these gendered narratives alive it is misinforming the population about female combatants’ capabilities. Perhaps this is over-reading and over-stating the news media’s role – however, as news media accounts of female combatants (and women in general) still present them as sex objects, these representations must be analysed and confronted. It is important to examine gender as a category of experience and a social process, but it must not be overemphasised as a reason for actions. When political violence is reduced to gendered reasons, such as the Chechen Black Widows (Stack, 2011), this only allows the female actors to be understood through the prism of gender, which is a social construction. This is internalised in social cognition and can have devastating effects upon women’s equality, as it fosters the male as the norm and female as the other.

Not only do gender stereotypes in the news media harm gender equality, they also impede counter- and anti-terrorism security measures. Nacos’s advice is that in order to combat terrorism, the opportunities for the manipulation of gender prejudices by terrorists must be shut down. A suggested method is to allow and encourage gender reality to inform counter-terrorism policies by removing the gender stereotypes of female combatants in the news media, as these stereotypes “reflect and reinforce deep-seated societal attitudes”(2005: 448).

To finish, this analysis of the news media endeavours to be critical rather than pessimistic as the news media also have the power to defy pre-existing norms by refusing to use familiar gender stereotypes to represent female combatants and women in general.


Bloom M, Gill P and Horgan J. (2011) Tiocfaidh ar Mna: Women in the Provisional Irish Republican Army. Behavioral Sciences of Terrorism and Political Aggression 4: 60-76.

Govan F. (2011a) How the Seductress ‘Tigresa’ Lost her Lust for Killing. Available at: http://www.independent.ie/world-news/europe/how-the-seductress-tigresa-lost-her-lust-for-killing-26795118.html.

Govan F. (2011b) La Tigresa Kicked Out of ETA After Renouncing Violence. Available at: http://www.telegraph.co.uk/news/worldnews/europe/spain/8910436/La-Tigresa-kicked-out-of-ETA-after-renouncing-violence.html.

Kendall B. (2015) What Drives Women to Extreme Acts? Available at: http://www.bbc.co.uk/news/world-33600267.

Nacos BL. (2005) The Portrayal of Female Terrorists in the Media: Similar Framing Patterns in the News Coverage of Women in Politics and Terrorism. Studies in Conflict and Terrorism 28: 435-451.

Rosenbaum S. (2015) She’s Beautiful and She’s an Alleged ISIS Terrorist. Available at: http://nypost.com/2015/10/26/turkish-police-hunt-for-smirking-female-isis-suspect/.

Stack A. (2011) Zombies Versus Black Widows Women as Propaganda in the Chechen Conflict. In: Sjoberg L and Gentry CE (eds) Women, Gender, and Terrorism. Athens: The University of Georgia Press, 83-95.

Viner K. (2001) ‘I made the ring from a bullet and the pin of a hand grenade’. Available at: https://www.theguardian.com/world/2001/jan/26/israel.

Weaver H. (2017) The Significance of Michelle Obama’s Bold Red Dress During Her Final Speech as FLOTUS. Available at: http://www.vanityfair.com/style/2017/01/michelle-obama-final-speech-red-dress.





Part 3: Using Evidence of Previous Sexual History in Rape Cases – the Ched Evans case

This is the third and final post on the Ched Evans case (Follow the links for Part 1 and Part 2) and the use of evidence of a complainant’s sexual history in rape trials, Molly Joyce examines the consequences of the Court of Appeal’s decision to give Evans a new trial and the impact his “not guilty” verdict in that retrial may have on the future handling of rape cases and the treatment of complainants in these kinds of cases.


Using Evidence of Previous Sexual History in Rape Cases: The Ched Evans Case, Part 3

by Molly Joyce

Consequences of the Evans Case

The immediate consequences of the Court of Appeal’s decision (discussed here) was that Evans was granted the right to a retrial. His retrial started on 4 October 2016 and lasted two weeks, with a “not guilty” verdict handed down by the jury on 14 October 2016. The jury deliberated for three hours.[1] This conclusion was reached after a five-year campaign by Evans and his supporters, throughout which he maintained his innocence. The case involved two criminal trials and two appeal court hearings as well as investigations into contempt of court allegations and the prosecution of nine people who named X on social media.[2]

While the matter itself is essentially now concluded, the wider impact of the case remains to be seen. It is clear that it has caused quite a lot of controversy and debate around issues including: the admission of evidence about a complainant’s sexual history; the behaviour of footballers off the pitch and the question of their return to the field if they are found guilty of criminal offences; how complainants in sexual offence cases can be fully assured of their anonymity in the social media age; the wider impact of Twitter and other social media on criminal investigations and trials; and the role of alcohol in these kinds of “he said, she said” cases. All of these issues throw up difficult questions about how we investigate, prosecute and respond to sexual offence allegations, particularly in situations involving high-profile people. In this post, however, I remain focused on the legal implications of this case in regards the issue of admitting evidence of sexual history: I will not discuss the other issues outlined above although they are undoubtedly of equal importance.

Legally, this case does not change anything. The processes used by Evans’ lawyers to get him a retrial have been long established and the exception under which Evans’ lawyers were able to get evidence of X’s previous sexual behaviour admitted and considered by a jury has been in place since 1999.

And yet, there has been considerable commentary suggesting that this case puts the law back “probably about 30 years”.[3] The former Solicitor-General Vera Baird has questioned whether the case is in fact a rarity: she suggests that the Court of Appeal has lowered the bar of what is “admissible and relevant” evidence, thereby encouraging defendants to “check out” Evans’ defence and see if they can find other men who have had sex with the complainant in a “similar” way as with the defendant.[4]

40 female Labour MPs have further written to the Attorney-General to ask that the law be amended so as to stop any move towards the more routine use of a complainant’s sexual history in sexual offence trials. Specifically, the Labour MPs have asked that section 41 YJCEA 1999 be amended so as to specify that sexual history evidence can only be used, under the exception used in Evans’ case, where the similar conduct is unusual and out of the ordinary.[5] In advocating this amendment, the MPs have argued that the Court of Appeal’s decision creates a precedent for the increased use of such evidence in circumstances where such evidence was only ever intended by Parliament to be used in cases involving unusual sexual behaviour. The MPs further emphasised that this particular exception, prior to Evans’ case, had only been used once, in a case where the evidence of the complainant’s sexual history concerned bizarre and unusual sexual conduct with the defendant (namely sex standing up inside a children’s climbing frame).[6] The Attorney-General has acknowledged the legitimacy of these concerns and has suggested that reform of the law could be appropriate. He stated, however, that before it can be decided what changes are needed, a number of things need to be looked: “[w]e need to understand more about the decision in this particular case, we need to understand whether a change in the law is appropriate and, if not, whether it is sensible to look at the guidance that is given to judges about when this evidence is admissible and the guidance that judges give to juries about how that evidence should be used.”[7]

Given that the proposed amendments to section 41 YJCEA 1999 only relate to amending the provision under which the Court of Appeal actually allowed the evidence of sexual history to be admitted in Evans’ case, it may of interest to note that the Court of Appeal also suggested in its judgment that the evidence may have been admissible under another provision, namely exception 1 outlined above. Exception 1 states that evidence of a complainant’s sexual history may be admitted if it relates to a “relevant issue” in the trial and that issue is not an issue of consent. The Court of Appeal accepted that the evidence from Mr O and Mr H regarding X’s sexual behavior may have also been “relevant and admissible” as it related to the relevant issue of Evans’ reasonable belief in X’s consent (“reasonable belief” is not an issue of consent in the sense that it is not about whether X actually consented or was capable of consenting, but rather whether Evans reasonably believed she was consenting).[8] It may therefore be the case that the sexual history evidence used in Evans’ case would have been admitted even if the Court of Appeal had considered the relevant provision as applying only to “unusual” behavior.

The concerns voiced by Vera Baird, the Labour MPs and the Attorney-General himself all highlight the possible negative effect that the Evans case could have on reporting of rape and sexual offences. The concern is that victims will be deterred from reporting these offences to the police for fear of having their private lives and previous sexual activities investigated and scrutinised by lawyers, judges and jurors. This is undoubtedly a very valid concern, although it is interesting to note that the Chair and Vice-Chair of the Criminal Bar Association have suggested that the “over-reaction” of women’s groups and others to this case could in fact be what discourages victims from coming forward. Specifically, the Chair suggested that statements to the effect that the case puts the law back 30 years or creates a “rapists’ charter” is actually what is going to “make people think they daren’t report what’s happened to them.” The Vice-Chair added that the Evans case is wholly exceptional and does not change or relax the law, which continues to state that the introduction of evidence about a complainant’s sexual history is forbidden except in “highly unusual circumstances where the trial would be unfair, and a wrongful conviction might result, if the evidence was not given.” [9]

It is my view that the full impact of this case is not yet known. There is undoubtedly a valid concern that the Court of Appeal’s judgment could indicate a relaxation on the part of the judiciary in allowing the use of evidence about a complainant’s sexual history. On the other hand, the Court of Appeal explicitly acknowledged in their judgment that such evidence should be admitted only in rare cases: it was simply their opinion that this was such a rare case. It is therefore unclear at this point whether the Evans case will in fact result in the increased admission and use of complainants’ sexual history in sexual offence trials. Monitoring how often section 41 YJCEA 1999 is successfully invoked in sexual offence cases would undoubtedly help in determining whether complainants’ sexual history is being considered too often in these kinds of cases and thereby help in deciding whether or not the law needs to be changed.

As regards the concern that the Evans case will discourage victims from reporting sexual offences, this is undoubtedly a very real fear. By all accounts, X’s life was destroyed by the constant abuse she received both online and offline: as a result, she has been given a new identity and has moved from the North Wales area.[10] In addition to this, she has had to endure two criminal trials as well as the humiliation of having two previous sexual partners reveal intimate details of her sexual behaviour. There can be no doubt that serious consideration needs to be given to how we protect complainants in sexual offence cases from having their identities illegally published on social media: one possibility is to introduce harsher penalties for those who engage in such conduct.[11] As regards the sexual history aspect, as the above discussion indicates, it is a rare case in which such evidence is admitted and it should be made clear to the general public and potential victims that such evidence is not routinely admitted and that the Evans case was a rarity which should not discourage anyone from reporting suspected rape or sexual abuse. Having said this, if a trend does emerge that indicates the case has resulted in an increased admission of such evidence, that will need to be looked at and potential reforms may need to be introduced in order to ensure complainants are protected from overly-extensive and unwarranted intrusion into their personal lives.


I wrote this blog in order to explain the legal rules that allowed Evans his retrial and allowed him to introduce evidence regarding X’s previous sexual history, eventually leading to his acquittal. The fact is, Evans was acquitted of the allegations of rape made against him and the process he undertook to win this acquittal did not occur by any exceptions made for him particularly. He followed the normal legal processes in order to obtain his appeal hearing before the Court of Appeal and he utilised existing legislative provisions in order to use evidence about X’s previous sexual behaviour as part of his defence. At his retrial, the prosecution was simply unable to persuade the jury, so as to be sure beyond a reasonable doubt, that X had been unable to consent or that Evans had not reasonably believed she had consented. He was acquitted fairly and in line with our criminal justice rules and standards. While his retrial and eventual acquittal would undoubtedly have been much harder to get had he been a poorer man without the significant funding needed to hire private investigators and a top legal appeals team, it is no great surprise that money often can make the difference between conviction and acquittal in the criminal justice system.

Perhaps one of the greatest tragedies of this case then, alongside the impact it has had on X’s life, is the fact that its high-profile nature, and the confusion around the legal intricacies of the case, has confirmed many people’s suspicion that rich and powerful men will get away with sexual crimes they have committed. In my view, the Evans case should not be taken as an example of this: he was acquitted squarely in line with the rules of criminal law and the admission of evidence about X’s previous sexual behaviour was exceptional and pertained to the specific facts and circumstances of this case. It should be made clear to the public that this case does not change the law on sexual offences or the laws around consent, and potential victims, although they should be aware of the potential impact any criminal trial could have on them, should not be deterred from reporting sexual offences as a result.

A Note on the Women Are Boring blog

Women Are Boring is dedicated to disseminating interesting research, opinion and analysis by interesting women.  As with all things worth doing, we are aware that research is debatable and worthy of contestation. This is something we encourage. As such, the opinions and views shared are those of each individual article’s author.

[1] See “Timeline of rape allegations against Ched Evans” ITV News 14 October 2016, available at: http://www.itv.com/news/2016-10-14/timeline-of-rape-allegations-against-ched-evans/.

[2] See “Ched Evans: Will footballer’s rape case change anything?” BBC News 14 October 2016, available at: http://www.bbc.co.uk/news/uk-wales-37624008.

[3] See “Law for rape victims could be amended after Ched Evans case, Attorney General reveals” The Telegraph 27 October 2016, available at: http://www.telegraph.co.uk/news/2016/10/27/law-for-rape-victims-could-be-amended-after-ched-evans-case-atto/.

[4] Vera Baird, “We cannot allow the courts to judge rape by sexual history” The Guardian 17 October 2016, available at: https://www.theguardian.com/commentisfree/2016/oct/17/courts-judge-rape-sexual-history-ched-evans-case.

[5] Rowena Mason, “Female Labour MPs call for legal change following Ched Evans retrial” The Guardian 23 October 2016, available at: https://www.theguardian.com/society/2016/oct/23/female-labour-mps-write-to-attorney-general-over-ched-evans-case.

[6] The letter sent to the Attorney General is available to read here: https://twitter.com/jessphillips/status/790541138939744257/photo/1?ref_src=twsrc%5Etfw.

[7] See “Law concerning use of sexual history in rape trials ‘could be reformed’” The Guardian 27 October 2016, available at: https://www.theguardian.com/law/2016/oct/27/law-concerning-use-of-sexual-history-in-trials-could-be-reformed.

[8] Chedwyn Evans v R [2016] EWCA Crim 452, [72].

[9] See “Barristers say ‘over-reaction’ to Ched Evans case counterproductive” The Guardian 18 October 2016, available at: https://www.theguardian.com/society/2016/oct/18/criminal-barristers-over-reaction-ched-evans-counterproductive-victims-sex-assault.

[10] See “‘A DIRTY LITTLE B****’ Ched Evans’ supporters troll his accuser as footballer is found not guilty of rape” The Sun 14 October 2016, available at: https://www.thesun.co.uk/news/1980032/ched-evans-supporters-troll-his-accuser-as-footballer-is-found-not-guilty-of-rape/.

[11] In regard the people who published details of X’s name on Facebook and Twitter, they were charged with publishing material likely to lead members of the public to identify the complainant in a rape case, contrary to the Sexual Offences (Amendment) Act 1992, and each fined £624: a fine was apparently the harshest penalty the court could impose for the charge. See “Ched Evans rape case: nine fined over naming of footballer’s victim” The Guardian 5 November 2012, available at: https://www.theguardian.com/uk/2012/nov/05/ched-evans-rape-naming-woman.

Part 2: Using Evidence of Previous Sexual History in Rape Cases – The Ched Evans case

Following on from Part 1, which introduced the case of Ched Evans and the issues around admitting evidence of a complainant’s previous sexual history in rape cases, this post continues the discussion of the case and specifically addresses the legal provision that allows a complainant’s sexual history to be admitted as evidence in exceptional circumstances. Similar to Part 1, this piece will continue to refer to the complainant at the centre of the Evans case as ‘X’.


Using Evidence of Previous Sexual History in Rapes Cases: The Ched Evans case, Part 2

by Molly Joyce

Admission of Evidence About a Complainant’s Sexual History

Section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) sets out the basic legal position regarding the admission of evidence about a complainant’s sexual behaviour/history in sexual offence trials. That position is: such evidence is not allowed unless the accused person gets the court’s permission to admit it.[1] The court will only give this permission to an accused person if one of four specific exceptions is met. These exceptions provide for limited situations in which evidence about a complainant’s sexual history/sexual behaviour can be brought into a trial and considered by a jury.

These four exceptions outlined in the legislation are complex. In essence, they provide as follows:

  1. The evidence relates to a relevant issue in the case and that issue is not one of consent.
  2. The evidence is produced in order to rebut or explain any evidence brought forward by the prosecution about the complainant’s sexual behaviour.
  3. The evidence relates to the issue of consent and the sexual behaviour of the complainant to which the evidence relates took place at or about the same time as the incident which is the subject matter of the criminal charge against the accused (i.e. this other sexual behaviour of the complainant took place within hours of the incident that is the subject matter of the criminal proceedings).
  4. The evidence relates to the issue of consent and the sexual behaviour of the complainant to which the evidence relates is so similar to either

(a) the complainant’s sexual behaviour at the time of the incident, or

(b) to any other sexual behaviour of the complainant which took place at or about the same time as the incident,

            that the similarity cannot reasonably be explained as a coincidence.

The third and fourth exceptions outlined above essentially relate to situations where the accused alleges the complainant consented to the sexual activity in question and wants to bring in evidence either about the complainant’s other consensual sexual conduct at the time of the alleged sexual offence (the third exception) or the complainant’s similar consensual sexual conduct at other times (the fourth exception).

In addition to the above, before giving permission, the court must:

  • Be satisfied that, if it doesn’t give permission for such evidence to be admitted, there would be a risk the jury or court would reach an unsafe conclusion on a relevant issue in the case.
  • Consider whether it is reasonable to assume that the purpose or main purpose of introducing this evidence about the complainant’s sexual behaviour is to dispute the credibility of the complainant as a witness: if it can be reasonably assumed that this is the purpose or main purpose, the evidence will not be allowed.
  • Be satisfied that the evidence relates to a specific instance (or specific instances) of the complainant’s sexual behaviour i.e. it cannot just be wide-ranging evidence about the complainant’s general sexual behaviour.

Evans argued that the testimony of Mr O and Mr H (two men who had had sexual relations with X before and after the occasion on which Evans had sex with her) about X’s sexual behaviour should be admitted on the basis of the fourth exception i.e. that her sexual behaviour on the occasions she had had sex with Mr O and Mr H was so similar to her sexual behaviour on the 29 May 2011 (as described in evidence by Evans), the similarity could not be explained as a coincidence and tended to suggest X actually consented to the sexual activity with Evans.

Mr O gave evidence that he had had sex with X approximately two weeks after the incident with Evans on 29 May 2011. Mr H indicated that he had had sex with X on a number of occasions between March and May 2011. The core elements of Mr O and Mr H’s evidence was that: on the occasions on which they’d had consensual sex with X, she had been out drinking; she had engaged in sexual intercourse in a particular way; she was an enthusiastic participant and directed her sexual partners to have sex with her in particular positions including “the doggie position”; and she used the distinctive expressions “fuck me harder” and “go harder” with both men.[2] Evans argued that X’s sexual behaviour described by Mr O and Mr H was extremely similar to Evans’ own description of X’s sexual behaviour when he spoke to the police, that this similarity could not be reasonably explained as coincidence and that this evidence supported Evans’ defence that X was capable of consenting and did consent to having sex with him on 29 May 2011.[3]

Whether this evidence of Mr O and Mr H should be admitted was accordingly the key question for the Court of Appeal in considering Evans’ appeal against his conviciton.

The prosecution argued that X’s sexual behaviour as described by Mr O and Mr H was not relevant in this case and that it was not sufficiently similar to Evans’ description of X’s behaviour.[4] In particular, the prosecution emphasised that even if this “fresh evidence” of Mr O and Mr H was credible, it did not reveal any kind of unusual behaviour on the part of X. Rather, X’s behaviour as described by Mr O and Mr H was commonplace and it could be reasonably explained as coincidence that she had used these words while with Evans on 29 May 2011.[5] Alternatively, the prosecution argued that this evidence of Mr O and Mr H was not credible and was not in any regard consistent with Evans’ account. In particular, the prosecution suggested that Mr O and Mr H may have been fed information by people close to Evans in order that they would make statements which would support him in his appeal.[6]

Evans’ lawyers argued in response to these points that the prosecution was isolating each aspect of the sexual behaviour alleged and ignoring the cumulative effect of that behaviour. Specifically, Evans’ lawyers argued that the specific phrases “fuck me harder” and “go harder” were sufficiently similar to satisfy the test of similarity: taking these phrases together with the other behaviour alleged then led to a “compelling” impact and meant this evidence was very relevant.[7] As regards the prosecution’s suspicion of the two witnesses’ motives, Evans’ lawyers responded that if it was the case that these two men were lying to help Evans, they surely would have provided these details at a much earlier stage. Evans’ lawyers further highlighted the two men’s previous good character and suggested that, despite some relatively distant connections with Evans’ friends and family, there was no reason to conclude either man was lying.[8]

In reaching its conclusion, the Court of Appeal noted that this was an unusual case insofar as the only witness to sexual activity and only evidence as to the sexual activity came from Evans himself. In putting forward his defence that X was capable of consenting and did consent, he was therefore able to rely on little more than his own account of her behaviour.[9]

The Court went on to describe Evans’ account to the police of what happened on 29 May 2011 in the hotel room: they emphasised that his account to police described in graphic detail the sexual behaviour of X. This account given to police was extremely similar to the account given of X’s sexual behaviour by Mr O and Mr H, two men who had had consensual sex with X in the days before the alleged rape and the days after it. The Court described this similar behaviour as such: “[o]n each occasion she had been drinking, she is said to have instigated certain sexual activity, directed her sexual partner into certain positions, and used specific words of encouragement.”[10] They concluded that they were satisfied that, on the facts in this case, the evidence of Mr O and Mr H came within the exception 4(a) outlined above i.e. Mr O and Mr H’s evidence related to the issue of consent and X’s sexual behaviour as described in their evidence was “so similar” to X’s sexual behaviour at the time of the alleged rape (as described by Evans), that it could not be reasonably explained as a coincidence.[11]

The Court specifically noted that there did not need to be anything unusual or bizarre about the behaviour in question, despite the prosecution’s arguments to the contrary. Rather, that behaviour simply had to be sufficiently similar that it could not be reasonably explained as a coincidence.[12]

In reaching this conclusion, the Court further found that Mr O and Mr H’s evidence was capable of belief. They noted that the prosecution was unable to point to anything of significance to show that the two men had changed their accounts or been prepared to lie in order to assist Evans and the prosecution was further unable to undermine the two men’s integrity or credibility when cross-examining them before the Court of Appeal. Having said this, the Court noted that the prosecution did possibly have some material that could help undermine these witnesses’ credibility at a retrial and this would allow the two men’s evidence to be thoroughly and rigorously tested.[13]

Before allowing new evidence to be admitted as a basis for quashing a conviction, the Court must be satisfied that there is a reasonable explanation for the failure to call this evidence at the first trial. Here, they found there was a reasonable explanation: Mr O’s existence and potential relevance was not known at the time of the first trial and Mr H, although known to have had a sexual relationship with X, had not given any detail of this sexual activity and this detail and its potential relevance was not therefore known.[14]

The Court emphasised in its judgment that it had reached its conclusion that this evidence was to be admitted with “a considerable degree of hesitation.”[15] The Court further acknowledged that a complainant should be protected from “intrusive and unnecessary questioning” about their sexual history, particularly where that sexual history concerned activity with third parties, and emphasised that such evidence should only be allowed in rare cases. It was their judgment, however, that this was potentially such a rare case.[16]

In these circumstances, and in the interests of ensuring a fair trial in which all relevant and admissible evidence is included, the Court of Appeal concluded that Evans’ conviction for rape should be overturned and ordered a retrial in order that the matter be resolved by a jury.[17] It is quite rare for the Court of Appeal to order a retrial in circumstances where the person has already served their sentence and a retrial is only ordered where the court believes it is in the interests of justice to do so. In this case, the court emphasised that the offence was a serious one and on this basis apparently believed it necessary to have a retrial.[18]

The final post in this three-part series will examine the consequences of the Court of Appeal’s decision in Evans’ case and discuss what the case might mean for future complainants in rape cases.

A Note on the Women Are Boring blog

Women Are Boring is dedicated to disseminating interesting research, opinion and analysis by interesting women.  As with all things worth doing, we are aware that research is debatable and worthy of contestation. This is something we encourage. As such, the opinions and views shared are those of each individual article’s author.

[1] See s.41(1) YJCEA 1999.

[2] Chedwyn Evans v R [2016] EWCA Crim 452, [39].

[3] Chedwyn Evans v R [2016] EWCA Crim 452, [39].

[4] Chedwyn Evans v R [2016] EWCA Crim 452, [55].

[5] Chedwyn Evans v R [2016] EWCA Crim 452, [56].

[6] Chedwyn Evans v R [2016] EWCA Crim 452, [59].

[7] Chedwyn Evans v R [2016] EWCA Crim 452, [58].

[8] Chedwyn Evans v R [2016] EWCA Crim 452, [59].

[9] Chedwyn Evans v R [2016] EWCA Crim 452, [70].

[10] Chedwyn Evans v R [2016] EWCA Crim 452, [71].

[11] Chedwyn Evans v R [2016] EWCA Crim 452, [72]. The Court also noted that this evidence may be admitted on the basis that the issue was not one of consent insofar as it was actually an issue relating to the question of Evans’ “reasonable belief” in X’s consent.

[12] Chedwyn Evans v R [2016] EWCA Crim 452, [73].

[13] Chedwyn Evans v R [2016] EWCA Crim 452, [67].

[14] Chedwyn Evans v R [2016] EWCA Crim 452, [69].

[15] Chedwyn Evans v R [2016] EWCA Crim 452, [74].

[16] Chedwyn Evans v R [2016] EWCA Crim 452, [74].

[17] Chedwyn Evans v R [2016] EWCA Crim 452, [75].

[18] Chedwyn Evans v R [2016] EWCA Crim 452, [75].

Using Evidence of Previous Sexual History in Rape Cases: The Ched Evans case

This piece is the first in a three-part series assessing the Ched Evans case and the use of evidence of previous sexual history in rape cases in the U.K. Click the links to read Part Two and Part Three 

Using Evidence of Previous Sexual History in Rape Cases: The Ched Evans case, Part 1

by Molly Joyce.

 On 14 October 2016 the footballer Ched Evans was acquitted of the charge of rape, and a five-year saga that started in a hotel room in a small town in Wales on 29 May 2011 was put to a close. The case attracted significant media coverage and ignited a fierce debate in the UK about whether or not the complainant’s sexual history should have been considered by the jury. That debate essentially boils down to a question of whether or not section 41 of the Youth Justice and Criminal Evidence Act 1999, a legal provision that was introduced to ensure evidence of a complainant’s sexual history is used in only the most limited of circumstances, is effective in achieving its aim. The tone of the debate as played out in the newspapers and on social media, however, has greatly complicated this basic question and has often overlooked the essential legal issues at play in Evans’ case. This post (the first of a series of three) therefore tries to examine the legal details of Evans’ case in a clear, dispassionate way that helps readers understand why Evans got a retrial and why evidence of the complainant’s sexual history was introduced in his trial. In this way, I hope to contribute to creating a more informed and balanced debate around the treatment of rape allegations, and the treatment of complainants in such cases, in our criminal justice system.  


You would be hard-pressed to find anyone living in the UK who has not heard about the Ched Evans case. When the verdict at Mr Evans’ retrial came out in October 2016, it occupied our airwaves and was covered extensively by both the tabloids and the broadsheets. It caused furore among women’s rights activists and attracted harsh criticism from many prominent people, including the former Solicitor-General Vera Baird[1] and more than 40 female Labour MPs, who called for a reform of the law in this area.[2] While Evans was before this case a minor celebrity, the high-profile nature of the case was perhaps unsurprising: it had sex, money, fame, betrayal and football i.e. all the elements of a good news story.

In the media frenzy that surrounded the case however, something was lost. That something is a clear, dispassionate, accurate explanation of the law which allowed Evans his retrial and allowed his lawyers to bring in evidence about the previous sexual history of the woman at the centre of this case (in keeping with the Court of Appeal’s approach, I will refer to this woman as ‘X’ throughout the remainder of this blog post[3]). This post (the first of a series of three) aims to provide such an explainer that will help readers understand what it is that actually happened in respect of the legal aspects of this case and, in this way, create a more informed debate as to the proper way in which allegations of rape and sexual assault should be handled in the future.


The basic facts of this case are probably familiar to most readers. On the night of 29 May 2011, Evans went out in his hometown of Rhyl, Wales, with his friend and fellow footballer Clayton McDonald. At around 4.00am the next morning, McDonald met X at the Rhyl Zu bar. X then accompanied McDonald back to a room at a Premier Inn in the nearby town of Rhuddlan,[4] which Evans had earlier that evening booked for McDonald (and allegedly another friend) because he thought it would be “more comfortable” than having them stay in his family home. On their taxi journey back to the Premier Inn, McDonald texted Evans to say he had “got a bird.” Evans then arrived at the hotel by taxi around 10-15 minutes later with his brother and another friend. He maintained in his evidence that he went to the hotel in order to tell McDonald that one of their other friends had been arrested following a fight and also to see who the girl was that McDonald had brought back. Evans went into the hotel, alone, and persuaded the receptionist to give him a key card to McDonald’s room, telling him he had booked it for a friend who no longer needed it. When asked why he lied to the receptionist, he responded that he was simply “being juvenile, having a laugh” and that his intention was to “go into the room, see what they were doing.” He didn’t knock before entering the room. Upon entering and the door slamming behind him, Evans observed McDonald and X having sex. At that point, McDonald apparently looked at X and asked “can my mate join in?” Evans stated that she said yes and he proceeded to perform oral sex on her and have full sexual intercourse with her. While this was happening, Evans’ friend and brother were seen standing outside the room (which was located on the ground floor) giggling and filming what was happening until McDonald closed the curtains. After about 30 minutes, McDonald left the hotel, by the reception desk, and Evans left shortly after that, by the fire door. He stated at the retrial that he used the fire door because he wanted to walk directly to the road outside. Evans and McDonald then returned to Evans’ family home.[5]

X woke up the next day at about 11.30am, “naked, alone and confused.”[6] She didn’t know where she was and had only vague recollections of being in a take-away the night before. When she woke up, she “panicked”: her clothes were scattered on the floor and she couldn’t find her handbag.[7] Not remembering how she had arrived at the hotel, X tried to piece together what had happened with friends and later that day went to the police. X did not at this point allege she had been raped; in fact, she has never alleged that she was raped or incapable of consenting to sex. Her evidence has always been that she simply cannot remember what happened in the hotel room.[8]

McDonald and Evans were arrested on suspicion of rape on 31 May 2011. In their police interviews, they both volunteered the information that they had had sex with X. In this sense then, the evidence as to sexual activity on the night in question came solely from Evans and McDonald themselves.[9]

The first trial saw both McDonald and Evans charged with rape. The verdict in that first trial was handed down on 20 April 2012, with the jury finding McDonald “not guilty” and Evans “guilty”.[10] Evans was sentenced to 5 years in jail. He served two and a half years of this sentence before being released on 17 October 2014 (this is a common mechanism that is available to prisoners sentenced to more than 12 months in prison[11]). At the time of his appeal and retrial, Evans was no longer in prison.


It is difficult to successfully appeal a finding of guilt: the Court of Appeal generally dislikes quashing a jury’s decision.[12] The legal test for overturning an appeal is whether or not the Court of Appeal thinks the conviction is “unsafe”. This means that Evans had to persuade a judge his conviction was “unsafe” if he was to be successful in appealing it. The term “unsafe” clearly does not lend itself to a very precise definition and a conviction may be “unsafe” due to a myriad of different reasons. Whether or not the court thinks a conviction is “unsafe” will therefore often depend on its assessment of the individual facts and circumstances of the particular case and whether the court has “real doubts” that the appellant was guilty of the offence of which he was convicted.[13]

The first step for a convicted person in appealing their conviction is to put together the “grounds of appeal” and a “summary of the facts” for the “Single Judge” (one judge sitting alone) to review. That judge will consider the grounds of appeal and the facts as summarised, usually without hearing any oral evidence about the case, in order to decide whether or not to give permission for the appeal to go forward. If the judge decides not to give this permission, the convicted person can “renew” their application for appeal: this renewed application is considered by the “Full Court” (three or more judges sitting together).

In this case, Evans followed this exact process. He immediately appealed his conviction on the following grounds: there had been “inconsistent verdicts” (remember McDonald was found “not guilty” and Evans was found “guilty”); there were problems with the trial judge’s summing up of the case; and Evans had obtained fresh expert evidence about X’s black-out and lack of memory.[14] On 10 August 2012, the Single Judge rejected his application and refused him permission to appeal. Evans then renewed his application to the Full Court: this application was rejected by the Full Court on 6 November 2012.[15]

The renewed application to the Full Court is not, however, the final step in appealing a conviction. In England & Wales there exists an independent, non-governmental body called the Criminal Cases Review Commission (the “CCRC”). People convicted of crimes can submit their claim of innocence to the CCRC and ask the CCRC to refer their case to the Court of Appeal for a full appeal. The CCRC also has the power to investigate the cases submitted to it and can use its various powers to uncover new evidence. The CCRC will only refer a case to the Court of Appeal where it is of the opinion that there is a “real possibility” that an appeal will be allowed.[16] This is a fairly lengthy process insofar as it essentially involves two steps: first, the person has to convince the CCRC that there is a “real possibility” the Court of Appeal will allow the appeal; second, if the person is able to convince the CCRC of this, they then have to convince the Court of Appeal to allow the appeal and quash their conviction.

Evans followed this process and asked the CCRC in July 2014 to examine his case in the hope that they would refer his case to the Court of Appeal. The CCRC fast-tracked Evans’ application (for reasons that are not entirely clear – the decision was made in response to Evans’ defence team’s request for prioritisation of his case[17]) and began their inquiry into the safety of his rape conviction in December 2014.[18] Following a 10-month investigation, the CCRC decided in October 2015 to refer Evans’ case to the Court of Appeal. They made this referral on the basis of “new information which was not raised at trial, and which in the view of the Commission, could have added support to Mr Evans’s defence at trial and therefore raises a real possibility that the Court of Appeal may now quash the conviction.”[19] This allowed a full appeal to be considered by the Court of Appeal.

It cannot be underestimated how difficult it is to get through this first hurdle: of the approximately 21,420 applications the CCRC has handled since it started work in April 1997 it has only referred 625 cases to the Court of Appeal.[20] That means roughly only 3% of all cases referred to the CCRC are successful in making it back to the Court of Appeal.

Evans’ case was referred to the Court of Appeal specifically on the basis of fresh evidence from three people (“fresh evidence” meaning evidence that was not heard by the original jury in the first trial). I will refer to these three people as: Mr O; Mr O’s mother; and Mr H. Mr O and Mr H were two men with whom X had had sexual encounters before and after 29 May 2011. Their evidence was essentially that X had, when having sex with them, used similar language and adopted similar behaviour as that described by Evans in his interviews with the police. This kind of evidence is known as evidence about a complainant’s “sexual behaviour” or “sexual history” and it is the inclusion of this evidence that both formed the basis of Evans’ successful appeal and led to the most controversial aspects of this case. The Court of Appeal essentially found that the evidence from these two men, which had not been available at Evans’ first trial, was “relevant” and “admissible” and its lack of availability at the previous trial rendered Evans’ conviction “unsafe”.

The key question then is how this kind of evidence was deemed to be “admissible”: how did the Court of Appeal come to the conclusion that evidence of the complainant’s sexual history, which has in the past been used to perpetuate the “twin myths” that “unchaste women are more likely to consent to intercourse and in any event are less worthy of belief”,[21] should be heard by a jury? In order to understand this, we need to look at a complicated piece of legislation: section 41 of the Youth Justice and Criminal Evidence Act 1999. This will be examined in Part 2.

A Note on the Women Are Boring blog
Women Are Boring is dedicated to disseminating interesting research, opinion and analysis by interesting women.  As with all things worth doing, we are aware that research is debatable and worthy of contestation. This is something we encourage. As such, the opinions and views shared are those of each individual article’s author.

[1] Vera Baird, “We cannot allow the courts to judge rape by sexual history” The Guardian 17 October 2016, available at: https://www.theguardian.com/commentisfree/2016/oct/17/courts-judge-rape-sexual-history-ched-evans-case.

[2] Rowena Mason, “Female Labour MPs call for legal change following Ched Evans retrial” The Guardian 23 October 2016, available at: https://www.theguardian.com/society/2016/oct/23/female-labour-mps-write-to-attorney-general-over-ched-evans-case.

[3] Chedwyn Evans v R [2016] EWCA Crim 452, [1].

[4] See “Footballer Ched Evans ‘raped woman in Rhyl hotel room’” BBC News 4 October 2016, available at: http://www.bbc.co.uk/news/uk-wales-37551789.

[5] See generally “Ched Evans rape trial: Footballer says sex with woman in hotel room was consensual” Wales Online 10 October 2016, available at: http://www.walesonline.co.uk/news/wales-news/ched-evans-rape-trial-footballer-12001362. This gives a live feed report of what was said in evidence during the retrial.

[6] Chedwyn Evans v R [2016] EWCA Crim 452, [10].

[7] See generally “Ched Evans rape trial: Live updates as alleged victim describes how she ‘panicked’ on waking in hotel room with clothes scattered around her” Wales Online 5 October 2016, available at: http://www.walesonline.co.uk/news/ched-evans-rape-trial-live-11979395. This again is a live feed report of what was said in evidence during the retrial.

[8] Chedwyn Evans v R [2016] EWCA Crim 452, [10].

[9] Chedwyn Evans v R [2016] EWCA Crim 452, [11].

[10] Chedwyn Evans v R [2016] EWCA Crim 452, [16].

[11] See https://www.citizensadvice.org.uk/Documents/Advice%20factsheets/Prisoners/p-early-release-from-prison—serving-your-sentence-in-the-community.pdf.

[12] This can be seen by the statistics of successful appeals: over the past few years only 8-14% of appeals against conviction were successful and in the 2014-2015 period 79% of all applications to appeal against conviction were refused permission, see Court of Appeal (Criminal Division) Annual Report 2014-2015, available at: https://www.judiciary.gov.uk/wp-content/uploads/2015/12/coa-criminal-division-annual-report-2014-15.pdf.

[13] See the judgment of Lord Bingham CJ in R v Criminal Cases Review Commission ex p Pearson [2000] 1 Cr App R 141 for a discussion of the meaning of “unsafe”.

[14] Chedwyn Evans v R [2016] EWCA Crim 452, [2].

[15] See R v Chedwyn Evans [2012] EWCA Crim 2559.

[16] See section 13 of the Criminal Appeal Act 1995.

[17] See “Legal watchdog to fast-track inquiry into rape conviction of Ched Evans” The Guardian 18 October 2014, available at: https://www.theguardian.com/society/2014/oct/18/legal-watchdog-fast-tracks-ched-evans-rape-inquiry.

[18] See “Ched Evans timeline: Key events since player’s release” BBC News 10 January 2015, available at: http://www.bbc.co.uk/sport/football/30671836.

[19] See “Commission refers the rape conviction of Ched Evans to the Court of Appeal” CCRC 5 October 2015, available at: http://www.ccrc.gov.uk/commission-refers-the-rape-conviction-of-ched-evans-to-the-court-of-appeal/.

[20] See http://www.ccrc.gov.uk/case-statistics/.

[21] Chedwyn Evans v R [2016] EWCA Crim 452, [44].