University responses to sexual violence on campus: comparing English & American approaches

by Erin Shannon, University of York

Although the United States has the infrastructure to respond to student disclosures of sexual violence, there seems to be little commitment to changing campus cultures that permit sexual violence to occur. If American universities have the infrastructure without commitment to institutional change, English universities have recently demonstrated a higher level of commitment to ending sexual violence with little infrastructure to do so.

What can we learn from a comparative framing of responses to sexual violence in universities?

Sexual violence in English and American universities is not a new phenomenon, yet its corresponding field of study is relatively new. Such scholarship dates back to the 1980s but has gained traction in the last decade, possibly due to several high-profile cases, national awareness-raising efforts including campaigns like ‘It’s On Us‘ and ‘I Heart Consent‘, and the rise of survivor-activist groups such as ‘End Rape on Campus‘ and ‘Know Your IX‘ in the United States and ‘Revolt Sexual Assault‘ in the United Kingdom. Despite this growth in mainstream media coverage and activist work, research on sexual violence in universities remains limited: England only began investigating it in 2010 at the urging of the National Union of Students (NUS, 2010) and while the United States has a longer record of studying the subject, the existing literature often overlooks structural issues in favour of more individualised studies of perpetrator behaviour or the impact on victims/survivors (Phipps and Smith, 2012, p. 358). Comparative studies on sexual violence in universities are even rarer, as a single study exists that analyses campus crime rates across England and the United States (Fisher and Wilkes, 2003) and this only briefly touches on sexual violence.

Looking beyond scholarship, current institutional responses to sexual violence in American and English universities fall into one of two polarised approaches: a heavily structured framework (e.g. United States) versus a culture change model (e.g. England). While these models are not mutually exclusive, universities currently treat them as such. A comparative examination of American and English universities’ responses to sexual violence highlights that both approaches are necessary, yet neither on its own is sufficient to properly respond to sexual violence in universities. On a practical implementation level, the necessity of a comparative study becomes clear: Though England does not currently have a national response framework for sexual violence in universities, Universities UK (UUK) noted in its (2016) Changing the Culture report that it is working towards creating one, and, in doing so, is studying established structures—such as the United States’ Title IX—for potential adaptation (p. 4). We must therefore understand the existing responses in both countries if we are to seriously consider policy borrowing.

Before we can discuss what this best practice sharing could look like, we need to understand how we arrived at this discussion. Policy borrowing implies a level of sameness between two contexts, and American and English universities are indeed similar. The student make-up in both countries is comparable: In the 2015-2016 academic year, 40.5% of 18-24-year-olds in the United States and 49% of 17-30-year-olds in England attended university (National Center for Education Statistics; Adams, 2017). The majority of these students are white and female (National Center for Education Statistics; “Higher Education Student Statistics: UK, 2016/17,” 2018). Victimisation rates in both countries are also comparable: Though more data exists about the prevalence of sexual violence in American universities than in English universities, the available research does illustrate similarities. The (2015) Association of American Universities (AAU) Campus Climate Survey on Sexual Assault and Sexual Misconduct found that 21.2% of final year undergraduate students experience some kind of attempted or completed sexual assault prior to graduation (Cantor et. al., p. xiv). The most vulnerable of these were female students and “TGQN” students— “transgender male, transgender female, genderqueer or non-conforming gender, questioning, not listed, and ‘decline to state’” (Cantor et. al., 2015, p. vii)—who experience sexual violence at rates of 33.1% and 39.1% respectively (Cantor et. al., 2015, p. xiv). In England, the (2010) Hidden Marks report found that, of its respondents, one in seven female students experienced a serious sexual or physical assault (NUS, p. 3, 11) and 25% experienced a form of sexual violence while in higher education (NUS, p. 16). Another constant across both countries is the perpetrator profile: The most frequent perpetrators of sexual violence in universities are not “‘masked strangers’” (Hartmann, 2015, p. 291), but rather (ex-)boyfriends, friends, classmates, or acquaintances (Fisher et. al., 2000, p. 17; Krebs et. al., 2007, p. xviii). The Hidden Marks report further revealed that the level of intimacy the perpetrator had with the victim/survivor varied across types of violence: The more severe the assault, the closer the relationship between them (NUS, 2010, p. 19).

Despite these similarities, American and English universities respond differently to student disclosures of sexual violence, and these responses represent either side of the structured framework versus culture change binary mentioned earlier. The United States has a relatively standardised federal approach, while England is witnessing many different responses by individual universities. In addition to the structural difference between the countries, there appears to be a value difference as well. Although the United States has the infrastructure to respond to student disclosures of sexual violence, there seems to be little commitment to changing campus cultures that permit sexual violence to occur. If American universities have the infrastructure without commitment to institutional change, English universities have recently demonstrated a higher level of commitment to ending sexual violence with little infrastructure to do so.

The American Framework

The framework that the United States has in place consists of two key federal directives, Title IX and the Clery Act. Title IX prohibits any discrimination based on sex in education and the (2011) Dear Colleague Letter (DCL)—updated implementation guidance from the Obama administration—explicitly situates sexual violence as an issue covered by this: “Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX” (Ali, p. 1). The DCL mandates the following: Universities must publish a non-discrimination notice that has the contact information of the Title IX Coordinator in an easily accessible place, must assign the responsibility for Title IX compliance to at least one employee, and must create and disseminate their procedures for sex discrimination complaints (Ali, 2011, p. 6). It discusses how student conduct investigations should be carried out by detailing what standard of proof is acceptable (preponderance of the evidence or “more likely than not” as opposed to a higher standard such as “beyond a reasonable doubt”); that the complainant (alleged victim/survivor) and accused (alleged perpetrator) should have equal opportunity to present evidence, though they should not directly question each other; that investigations should not take longer than 60 days; and that universities should have an appeals process in place for both parties (Ali, 2011, p. 10-12). Should a university fail to respond appropriately and quickly to a report of sexual violence, the Office for Civil Rights can revoke the university’s federal funding (Ali, 2011, p. 16). In addition to Title IX, universities must adhere to the Clery Act, which requires them to log information such as the “‘nature, date, time, and general location of each crime;’” release statistics of crimes that happen adjacent to or on campus; send out ‘timely warnings’ about immediate and/or ongoing threats to campus safety; and create an emergency response strategy (Griffin et. al., 2017, p. 403-404).

Critics of the American response framework, particularly Title IX, often point to the lack of compliance universities exhibit and its punitive, legalistic qualities. When measuring the efficacy of Title IX in responding to sexual violence, what is often actually being measured is how successfully schools comply with guidance rather than how successfully they address sexual violence. Compliance, however, can still speak to how universities (de)value student victims/survivors; it’s therefore worth noting that, despite these improved procedures, there were still universities in 2015 that lacked a basic Title IX policy (Richards, 2016, p. 20). This compliance culture—or lack thereof—illustrates a previously mentioned issue with the American response to sexual violence in universities: Tani (2017), citing Leon’s study of the 2014 Office for Civil Rights investigation of University of Delaware, points out that American universities may have the structure in place to facilitate effective responses to sexual violence, yet limited or no institutional commitment to cultural change (p. 1890). Furthermore, beyond failure to comply with the system lie issues with the system itself. These critiques point to how such a punitive model results in a ‘zero-sum game’ between the rights of the accused versus the rights of the complainant and how the policy’s rape mythology imported from criminal law hurts victims/survivors (Hartmann, 2015, p. 314, 294; USVreact, 2018, p. 9).

The English approach

Conversely, the recommendations set out in UUK’s (2016) Changing the Culture report focus on facilitating cultural change through the creation of streamlined reporting, recording, and support processes. The Changing the Culture report highlighted that some universities are responding, but these responses are not centralised and there is not yet an outlet for sharing best practice across the UK (2016, p. 5). Based on responses from 60 of their member universities, UUK found that the majority did not have dedicated policies in place to respond to sexual violence, as this was often included under an umbrella policy for harassment and bullying (2016, p. 27). Under-reporting of sexual violence and the lack of reporting and recording infrastructure were common issues among respondents (UUK, 2016, p. 28). Despite the absence of internal reporting resources, however, many universities had developed working partnerships in their local communities with police and crisis centres (UUK, 2016, p. 29). UUK formed recommendations based on recurrent themes in university responses which include: achieve senior leadership buy-in, implement an institution-wide approach, work to prevent violence through forming a zero-tolerance culture and using bystander intervention training, create a system to centrally record all reports and make sure that there is a clear path to disclosure and support, create or strengthen partnerships in the local community (NHS, rape crisis centres, etc.), and ensure best practice sharing (2016, p. 58-59).

While Phipps and Smith (2012) caution us against “mobilising simplistic dichotomies” (p. 366) in comparing English and American responses to sexual violence in universities, the themes of infrastructure and commitment offer an opportunity to understand why two countries with relatively similar student make-up and rates of violence have taken such different approaches. The United States may have a developed infrastructure for response, yet the presence of this framework and the federal sanctions it can impose then make universities more concerned with compliance than with addressing and redressing sexual violence. On the other hand, without national legislation, England has the opportunity to discuss what supporting victims/survivors and preventing sexual violence looks like without universities facing national sanctions if their response does not fit a certain mould. The English guidance generated does not fixate on infrastructure aside from what will help students—easily accessible reporting and support pathways. In reviewing the American and English systems, we come to understand that merely having formal structures in place to respond to sexual violence in universities does not lead to broader cultural change, and that lacking standardised policies does not mean universities are not working to end sexual violence. The absence of standardised procedures in England may contribute to issues of accountability when universities act negligently, yet the United States shows us that the mere presence of a uniform response strategy does not guarantee that all universities will implement this even under the threat of losing federal funding. We then must grapple with the idea that change may not be best achieved through the creation of punitive umbrella policies that aim to foster compliance out of fear, rather than compassion for student victims/survivors. As someone who was heavily involved in Title IX activism throughout her undergraduate education in New Jersey, this idea has not been easy for me to confront.

What can we learn from this?
What then can we learn from a comparative framing of sexual violence response in universities? I am still very much in the process of finding out. The preliminary findings from my literature review suggest at the very least that a comparative framing would help us envision radically different options for response, that we do not have to remain committed to one way of responding because that is how it has been done. In a precarious moment for Title IX—thanks to Secretary of Education Betsy DeVos buying into the mythology of rampant false accusations (McNamara, 2018; “False Reporting Overview,” 2012) and subsequently making it more difficult for victims/survivors to find justice (United States Department of Education, Office for Civil Rights, 2017)—it is now more important than ever for Americans to remember that there are possibilities for achieving justice beyond a system that can be weaponised against the very people it was designed to protect. It is also important for England, in working towards a national response framework, to take into account the critiques of the United States’ system when considering it for possible adaptation. Ultimately, it is my hope that my doctoral thesis will help to identify how universities in the United States and England may engage in policy borrowing to better support university student victims/survivors of sexual violence.

 

References

Adams, R. (2017, September 28). Almost half of all young people in England go on to higher education. The Guardian. Retrieved from http://www.theguardian.com/education/2017/sep/28/almost-half-of-all-young-people-in-england-go-on-to-higher-education

Ali, R. (2011, April 4). Dear Colleague Letter.
Cantor, D., Fisher, B., Chibnall, S., Townsend, R., Lee, H., Bruce, C., & Thomas, G. (2015). Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct. The Association of American Universities. Retrieved from https://www.aau.edu/sites/default/files/%40%20Files/Climate%20Survey/AAU_Campus_Climate_Survey_12_14_15.pdf
False Reporting Overview. (2012). Retrieved July 11, 2018, from https://www.nsvrc.org/sites/default/files/Publications_NSVRC_Overview_False-Reporting.pdf
Fisher, B. S., Cullen, F. T., & Turner, M. G. (2000). The Sexual Victimization of College Women. National Institute of Justice. https://doi.org/10.1007/springerreference_223719
Fisher, B. S., & Wilkes, A. R. P. (2003). A Tale of Two Ivory Towers: A Comparative Analysis of Victimization Rates and Risks between University Students in the United States and England. The British Journal of Criminology, 43(3), 525–545.
Griffin, V. W., Pelletier, D., Hayden Griffin, O., & Sloan, J. J. (2017). Campus Sexual Violence Elimination Act: SaVing Lives or SaVing Face? American Journal of Criminal Justice: AJCJ, 42(2), 401–425.
Hartmann, A. (2015). Reworking Sexual Assault Response on University Campuses: Creating A Rights-Based Empowerment Model to Minimize Institutional Liability. Journal of Law & Policy, 48, 287–320.
Higher Education Student Statistics: UK, 2016/17. (2018, January 11). Retrieved June 14, 2018, from https://www.hesa.ac.uk/data-and-analysis/students/whos-in-he
Krebs, C. P., Lindquist, C. H., & Warner, T. D. (2007). The Campus Sexual Assault (CSA) Study (No. 0209487). National Institute of Justice. Retrieved from https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf
McNamara, B. (2018, March 12). Betsy DeVos Said She Doesn’t Know Whether False Rape Allegations Outnumber Real Ones. Retrieved July 17, 2018, from https://www.teenvogue.com/story/betsy-devos-false-rape-allegations-outnumber-real-ones
National Center for Education Statistics. (n.d.). Fast Facts. Retrieved June 12, 2018, from https://nces.ed.gov/fastfacts/display.asp?id=372
NUS. (2010). Hidden Marks: A study of women students’ experiences of harassment, stalking, violence and sexual assault.
Phipps, A., & Smith, G. (2012). Violence against women students in the UK: time to take action. Gender and Education, 24(4), 357–373.
Richards, T. N. (2016). An Updated Review of Institutions of Higher Education’s Responses to Sexual Assault: Results From a Nationally Representative Sample. Journal of Interpersonal Violence, 886260516658757.
Tani, K. M. (2017). An Administrative Right to Be Free from Sexual Violence: Title IX Enforcement in Historical and Institutional Perspective. Duke Law Journal, 66(8), 1847–1903.
United States Department of Education, Office for Civil Rights. (2017, September). Q&A on Campus Sexual Misconduct. Retrieved from https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf
Universities UK. (2016). Changing the Culture: Report of the Universities UK Taskforce examining violence against women, harassment and hate crime affecting university students.
USVreact. (2018). Training to Respond to Sexual Violence at European Universities: Final Report of the USVreact Project. Retrieved from http://usvreact.eu/wp-content/resources/USVreact_Report_2018_ENG.pdf

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Tackling the ethical approval process

Forms over function: Ethics, ethnography and the NHS

by Carol Robinson

At times last year I forgot that I was doing a PhD. It’s not that I was having a wild time as a student. No, by 9am every day I turned up to the office my department has kindly provided, settled down at my desk and worked solidly until some point after 5pm. Some of that time I’d be keeping on top of email, or attending departmental meetings, but mostly, I was working. Twitter doesn’t distract me, I had an organised weekly list of things to do that I worked through, and things were progressing nicely, thank you.

So why did I forget that I was working towards a PhD? Because for most of that time everything I did was aimed at getting ethical approval for my research. So it was almost a shock to look up and remember that wasn’t really my goal. My goal is to do the PhD research, to contribute to human knowledge and understanding, and to do it in a way that improves people’s lives. For a while however, compiling what became 91 pages of ethics forms plus supporting documents and all the bureaucracy that goes with that completely eclipsed the research.

I always knew I’d need to get ethical approval for my work. What I didn’t appreciate was how time-consuming, frustrating and complicated this would be. I used to listen to other people’s stories of wrestling with UK’s Integrated Research Application System, or with the NHS Health Research Authority’s byzantine processes and think either that they were exaggerating for effect or that perhaps their project wasn’t, well, good enough. I’d had approval from the prison service for England and Wales for two previous research projects; how hard could it be? I now apologise whole-heartedly that these thoughts even crossed my mind.

I did make life harder for myself by wanting to research dying prisoners, thus requiring both health service and prison service approval, as well as that of my University. The prison service process was fairly straightforward and familiar. The real trouble was with the NHS processes, and with the relationship between the three bodies. What kept me going for several weeks, as I tried to untangle the mass of acronyms and synonyms involved, was the thought that I was gaining useful experience. At the end of all this, I thought, I’ll be able to put on my CV that I understand the process, know how to fill in the form and could liaise with a health Research Ethics Committee. Not true. The process is so capricious that all such an entry in my CV would prove is that I once had the mental fortitude to see an application through to its conclusion.

Although my colleagues will tell you I sighed out loud quite a bit, I did make it through the time when an overnight update to the IRAS website hived my answers off into two separate forms, one of which I couldn’t see. I didn’t scream when I discovered just before submission that this should be changed back to one form. I stayed cheerful as my participant information sheet, carefully written to suit people not that keen on reading, expanded to yet another page with all the extra information I was asked to include. I only muttered a modest amount when asked to add the (to the participants) totally meaningless IRAS reference number to it. I maintained my outward equilibrium whilst I confirmed I would not be doing things I’d never thought of (wearing clerical dress was my favourite such request, closely followed by audio-recording outside of interviews). But I confess my heart did sink when someone I was relying on to understand what should happen next said this would be a learning process for them too.

Being a reasonable person, I did appreciate that part of the difficulty was that I was having to fit getting approval for sociological research into a process intended for clinical trials. The mismatch only seems to be partly recognised by the bodies responsible. So, whilst there’s a protocol template to complete aimed at qualitative research, I still had to say I wasn’t using ionising radiation or using human tissue samples. And whilst there are ways to amend the project once it’s been approved, there’s no appreciation that good sociological research is often iterative. Instead, there’s the assumption that you will know all possible scenarios in advance. With this comes an assumed relationship to the research participants; they are to be the subjects, not the co-creators of research knowledge. There is no scope for an understanding of ethical research that deviates from a generic (clinical) ideal, and consequently, the best of a discipline’s specific characteristics and of its newer research methodologies can be lost. I say newer, but in practice even my well established chosen ethnographic methodologies sit uncomfortably with the process of getting ethical approval from a health research authority.

There was a tendency in the guidelines provided to use language in unexpected ways. Have you ever had that experience of all the words making sense individually, but being incomprehensible when put together? I found myself trying to draft emails to effectively ask “so if ‘host organisation’ doesn’t mean ‘the organisation hosting the research’, what does it mean?” I struggled, along with my supervisors, and it turned out, the ethics committee staff, to understand what the REC had wanted when it asked whether I had an ‘honorary contract’. Later on, the REC asked if the scientific validity of the study has been confirmed independently of the academic supervisors, giving as an example of how this might be achieved “a University PhD review process”. None of us, not my academic supervisors, not the university ‘sponsor’ that I’d discovered along the way was also needed, knew what this meant. We were stumped, and resorted to gently approaching a professor elsewhere to see if they could provide such an independent scientific review, and quickly. In the end, this was not needed –all that was meant was would the University’s ethics committee be looking at it. Yes, of course.

There were funny moments too. Having had my application reviewed by a Research Ethics Committee that met in Essex, I then discovered how similarly I pronounce ‘Ethics’ and ‘Essex’, on the phone, to a poor, kindly person trying to understand which ethics committee had looked at it. Eventually, I said, “the one that met in Chelmsford” and we moved on. Having three ethics committees look at your work is not fun. As things are, it’s inevitable for research such as this, but unsurprisingly their expectations are not always compatible. The prison service doesn’t want any contact details for external people, such as academic supervisors, included on Participant Information Sheets; the NHS expects this. The University wants email addresses only; prisoners don’t have email. The NHS REC regarded the notices that prison governors would issue to let prisoners and staff know about the research as ‘posters’ that the REC should scrutinise, so needed the final text agreeing before I could get their approval – 6 months in advance of the governor issuing the text. Prison governors are incredibly busy people, so I am indebted to them for having calmly accepted this.

There is, outwardly, plenty of advice available on NHS websites. Much of it is out of date, hard to find, or impossible to understand. There are flow charts describing a parallel world, ‘start here’ guides buried beyond discovery, and directories that are out of date. Lovely, kind and supportive staff within the NHS R&D offices or working with RECs do their best, but if your project is unusual, there are things they can’t be expected to know, such as that there’s a limited number of Health RECs who will look at prison applications, until it’s nearly too late.

I’m not alone in this. In my struggle to understand the process, I came across numerous articles by academics similarly venting their frustrations, including one that fairly calmly reflecting on the problems, before revealing that their own project had spent the entire initial research budget trying to get permissions for research. Wiser people before me have also found that processes designed for quantitative-based medical interventions and clinical trials cannot adjust to the needs of qualitative research. And yet not much seems to have changed. My gripes may seem small, but behind them is a bigger issue, that of the imbalance of power between researchers and research ethics committees and the lack of accountability of the people, some experts, some lay people, appointed to make such important decisions.

So now I have all the ethical approvals I need, 10 months after I first starting filling in the forms, I’m remembering fondly why I’m here. It comes in flashes; the possibility of time to open that new book I’ve been eyeing up, something on the news that reminds me of the relevance of my research interests, a chance conversation with a colleague. Best of all was a recent conversation with a senior manager at one of the prisons I’ll be visiting for fieldwork. We’d not spoken before, but within minutes she’d reminded me why I’m doing this, why it matters that I’ve survived through all these hurdles. Out there are people who are doing their best in tough circumstances, and good quality research may just be able to help them. I’m looking forward to getting on with it.

Emotion Rules in Feminist Book Reviews: An Inroad to Improving Feminist Relationships

By: Lisa Kalayji

WAB 2Swimming through the endless tidal wave of demoralising political think pieces and scholarly jibber-jabber in my mostly academic Twitter feed, I came upon an account called ‘ShitMyReviewersSay’, which features the cruelly scathing comments that anonymous peer reviewers write about the hopefully-to-be-published academic journal articles of their colleagues. The account’s handle? @YourPaperSucks.

Its purpose, other than to give us an opportunity to chuckle at what, under different circumstances, makes us want to either cry or set a university building ablaze, is to highlight the absurd magnitude of the viciousness that peer reviewers will direct at their colleagues when given a chance to do so anonymously.

It’s cathartic to have a laugh at this sort of thing, but when it doesn’t come in the form of a satirical Twitter account, our reaction is a lot different. ‘What the hell?!’ we wonder incredulously. ‘Couldn’t you express your criticism in a less ruthless and petty way? What good does it do you to ruin someone’s day and treat their carefully nurtured brainchild of a paper like garbage?’

ShitMyReviewersSay reminded me of the book reviews in Trouble and Strife, the radical feminist magazine I’m doing my PhD research with.

Trouble and Strife published a fair number of book reviews – feminists write a lot of books! – and over the course of my research I’ve found that there’s a vast deal we can learn about a group of people, be they academics, radical feminists, or any other group, from the way they review each other’s writing.

My research is about emotion culture: the system of rules and social norms that prevail in a society or social group which affect how people feel emotionally and how they express those emotions. Book reviews contain a treasure trove of clues about the emotion culture of the social group that the reviews come from, but in order to see those clues, you need to know some of the things sociologists have learned over the last few decades about how emotions work.

Emotions are relational

As the term ‘relational’ suggests, emotions come up in relationships between people. Because psychology dominates the popular lexicon we use to talk about and make sense of emotions, we tend to think of emotions as states which exist inside of us, are linked to our neurochemistry and our personal histories, and are mostly governed by things like innate human needs for social bonding. All of those things are partially true, but what the sociological study of emotions has revealed is that emotions are actually relational.

Why we feel the way we do in any given situation is constituted by our relationships to the people and things around us and what we understand those things to be and mean.

There isn’t anything in our genetic code that makes us get annoyed when a friend we’re supposed to meet for lunch shows up half an hour late (though our biology is necessary for us to be able to experience feelings), and the feeling of annoyance isn’t something inside of us that emanates outward through the things we say or do (though we do express emotions in that way). We’re annoyed at someone (that’s the relation), and the reason for that annoyance is what we think the lateness signifies. We’re busy people! Don’t they think we have better things to do than sit around waiting? We have to be back at work soon – now we’re going to have to rush through lunch! Our awareness that our friend knows that it’s considered rude to keep someone waiting and that it’s an inconvenience to us is what makes us annoyed – their indifference to our needs and to the agreed conventions of how keeping a lunch date with someone works creates our feeling. Likewise, though, if we found out that they’d been delayed because a stranger attacked them on the street and nearly broke their jaw, our annoyance would quickly give way to concern – what their lateness showed about our relationship to them would have changed, and with it, our feelings about it.

Emotions are subject to rules

Much like there are social rules about how we’re supposed to behave in different sorts of situations, there are also rules about how we’re supposed to feel and how we’re supposed to express feelings. If an adult is audibly crying at, say, a fancy restaurant or a business meeting, that would seem inappropriate, and probably make everyone around them quite uncomfortable. If they were at a funeral, however, that would be considered normal and appropriate, and no one would be bothered.

Even if feelings aren’t expressed, there are rules about how we’re supposed to feel.

If, for example, you’re a bit off your game at work because your sister died last week and you’re in grief, and while not actually admonishing you for it, you get the sense that your boss is annoyed with you for not being your sharpest self right now, you might get upset or angry at them. When someone is in grief, we expect others to respond with compassion, even if that grief peripherally causes some inconvenience to others – it’s a violation of the social norms of compassion and empathy to get annoyed at someone for being grieved, even if the annoyance is mostly hidden and not openly expressed. The rules are also different depending on what the characteristics of the people involved are. If that person crying in the restaurant is an infant, while people might still not be pleased about the noise, it wouldn’t make them feel awkward and uncomfortable, because we consider it normal behaviour for babies to cry regardless of time or place.

These are all some general aspects of how emotions in social life work in ordinary social situations. What my research is about, though, is the specifically political dimension of emotions in social life.

Social norms about emotions are deeply political, even in most seemingly innocuous daily interactions like those I described above. Rules about who is allowed to feel or express what feelings towards whom divides along a lot more political lines than the differences between adults and children. Anger is generally considered more appropriate in men than in women (and in women is more likely to be characterised as histrionics or emotional instability), and vulnerability more appropriate in women than in men (with men’s abilities to be ‘proper’ men called into question if they cry, especially in public). Rules about emotions are also racialised – even very slight expressions of anger from black men are interpreted as very threatening because black men are culturally conceived of as inherently threatening, while much stronger expressions of anger from white men (or women) are regarded as less threatening and are more likely to be considered justified. Our prevailing cultural conceptions about what characteristics different kinds of people innately have give rise to specific, and often strictly socially enforced, rules about who can feel what and how their feelings can be expressed.

Emotions in feminist book reviews

Feminists do a lot of writing, and a lot about how emotions work in feminism can be learned from examining the books, magazines, pamphlets, manifestos, and websites they write. I’m researching radical feminism, a specific type of feminism (there are a lot of them) which emerged during the ‘second wave’ of the Women’s Liberation Movement in the late 1960s, and continues today. From 1983-2002, a radical feminist collective the UK published a magazine called Trouble and Strife, and a lot of radical feminist political thought from that period can be found there.

WAB 1Because feminist politics is so substantially borne out through reading and writing, one of the central strategies that feminists use to think through politics is by reading and debating one another’s writing. For that reason, unsurprisingly, Trouble and Strife published quite a few book reviews, wherein contributing authors to the magazine reviewed books authored by other feminists. By comparing these reviews, and the responses to them that readers communicated to the magazine through letters to the editors, we can see radical feminist emotional politics in action.

What I’ve found is that the emotion rules in radical feminism are different for relationships between radical feminists than they are when dealing with someone outside that political community. When dealing with fellow radical feminists, they’re more considerate of one another’s feelings, express their criticisms more hesitantly and gently, and are more appreciative of the aspects of the work that they agree with. On the rare occasion that someone breaks this rule and is harshly critical of someone within the radical feminist community, there’s a strong backlash, with others writing letters to the magazine to express strong objections to those criticisms having been published, and some questioning the political identity of the magazine as a whole in light of their decision to publish exacting reviews.

This will ring true for many feminists who currently engage in online activism, who are familiar with the more receptive audiences within their own political communities, and harsher (and sometimes outright vitriolic) criticism from feminists who have a fundamentally different set of political values.

This has profound implications for the future of feminism: if feminists who disagree on crucial political issues are more willing to upset one another, and less desirous of understanding where others are coming from, then we’re likely to see a continuation of the entrenched infighting that has plagued feminism for decades. I’m not suggesting here that we should return to the ‘happy sisterhood’ of yesteryear (which, as many feminists have pointed out, never actually existed). What I do want to highlight, though, is that if we want to understand why conflicts between feminists get so heated and can be so divisive, understanding the emotion rules which give shape to feminists’ relationships with each other is a crucial piece of the puzzle.

Once we become more aware of these rules and how our own feelings are shaped by them, we can act to change them, and while this won’t solve all of feminism’s problems, it can go a long way toward generating more fruitful dialogues between feminists who belong to different political communities.

This strategy can be extended to other social movements as well, and it has rarely been a matter of more urgency than it is right now for social movements to be able to prevent the breakdown of their political projects due to irreconcilable conflicts from within their communities. During the currently ongoing period of rapid and disorientating social and political change, understanding the emotion rules of social movements can help us to ensure that efforts to enact positive social change are successful, and examining the way we speak to, speak of, and write about one another is one tool we can use for making sense of our emotion cultures.

You can find all issues of Trouble and Strife on their website at troubleandstrife.org.

Women are literally boring….

By: Laurie Winkless

Tunnels, that is. All over the world, Tunnel Boring Machines (or TBMs) are chewing their way through the packed subterranean network of your nearest city. But something you might not know is that they’re all given women’s names. Naming a machine after a human isn’t that weird, right? Many of us have named our cars after all, but it goes a bit deeper for TBMs. According to tunnelling tradition, a TBM cannot start work until it is officially named. But exactly where we got the tradition of naming them after women remains a bit of a mystery.

Some sources suggest that it comes from the 16th century, when miners, armourers, and artillerymen prayed to Saint Barbara. Legend has it that Barbara’s father had locked her in a windowless tower when he found out about her conversion to Christianity. Later, a flash of lightning struck him dead, and since then, all trades associated with darkness and the use of explosives have recognised Barbara as their patron saint. Today’s tunnel engineers see themselves as fitting that description, and so give TBMs women’s names in Barbara’s honour. Others suggest that the tradition comes from the link between miners and ship-builders – their physical strength and similar skills often saw men switch between trades as the need arose. Boats have long been given the pronoun ‘she’ (again for reasons unknown), so perhaps using women’s names for tunnelling machines started there?

Regardless of its beginnings, this tradition is carried out throughout the world today, as a sign of good luck for the project ahead. And, perhaps surprisingly in our increasingly secular world, most tunnelling projects still erect a shrine to Saint Barbara at the tunnel entrance.

I am a massive fan of TBMs. Here I am looking very excited in a TBM- tunnel under the streets of London. If I lived my life again, I think I’d be a tunnelling engineer. (Credit: Laurie Winkless)

Anyway, before we meet some of the First Ladies of the Underground, let have a quick look at how they work. First off, TBMs are huge. Bertha, the largest TBM in the world, is currently working her way under Seattle. She has a diameter of 17.5m, is 99 m long, and weighs over 6,000 tonnes. If we measure her in units of ‘double decker buses’ – she’s as tall as four parked on top of one another, as long as eight parked nose-to-tail, and weighs as much as 467 of them. So it’s no surprise that she’s usually referred to as ‘Big Bertha’.

So what do TBM’s like Bertha do with all that…girth? In their simplest form, TBMs are cylinder-shaped machines that can munch their way through almost any rock type. As I mentioned in my book, Science and the City, TBMs are generally referred to as ‘moles’, but I prefer to think of them as earthworms. Worms eat, push forward and expel whatever is left over, and while there are lots of different types of TBM, they pretty much all do those same three things.

Image credit: Crossrail

At the front, TBMs have a circular face covered in incredibly hard teeth made from a material called tungsten carbide. As the cutter-head rotates, it breaks up the rock in front of it. This excavated material is swallowed through an opening in the face (some would call it a mouth) and it is carried inside the body of the TBM using a rotating conveyor belt. There, it is mixed with various additives (rather like saliva or stomach acid in some animals) that turn the rock into something with the consistency, if not the minty-freshness, of toothpaste. After digestion, this goo is expelled out of the back of the TBM, and it travels along a conveyor belt, until it reaches a processing facility above ground. There, the goo is filtered and treated, with much of it reused in other building projects.

Because of their shape, TBMs produce smooth tunnel walls, which can then be lined using curved segments of concrete. TBMs manage this part of the process too – many metres behind the cutter-head, large robotic suction arms called erectors (stop giggling) pick up and place the concrete panels, to form a complete ring. As the TBM moves forward, more and more of these rings are put into place, until the tunnel is fully clad. In this way, cities across the globe can produce fully-lined tunnels at the rather impressive rate of 100 m per week.

Enough background. Time to meet some of the TBMs boldly going where no machine-named-after-a-woman has gone before.

London – Ada, Phyllis, Victoria, Elizabeth, Mary, Sophia, Jessica and Ellie

Crossrail is Europe’s biggest engineering project. Since 2009, they’ve constructed two brand-new, 21 km-long tunnels across London, running east-west. To do this, they used eight TBMs, and as tradition dictates, each was given a woman’s name, selected by members of the public. The first six machines were named after historical London figures, whilst the final two machines were named after ‘modern day heroes’. Because two TBM’s excavate parallel tunnels at the same time, they’re also named in pairs.

Image credit: Crossrail

– Mary and Sophia: These two excavated Crossrail’s new Thames Tunnel, between Plumstead and North Woolwich. They were named after the wives of Isambard and Marc Brunel, the famous engineers who constructed London’s first Thames Tunnel over 150 years ago. The women were a lot faster than their hubbies though – the original tunnel took 16 years to construct. This one was completed in just eight months.

Victoria and Elizabeth: Can you guess which women from history these TBMs were named after?! Yep, Queenie #1 and #2. In the citation, the reason given was that “Victoria was monarch in the first age of great railway engineering projects and Elizabeth is the monarch at the advent of this great age.” Victoria and Elizabeth excavated the tunnels that run between Canning Town and Farringdon, finishing the job in May 2015. As an aside, the Crossrail route itself will appear on tube maps as ‘The Elizabeth Line’, which is disappointingly predictable. I was rooting for ‘The Brunel Line’ myself, but hey.

Ada and Phyllis: These may be my favourites – named after the world’s first computer scientist, Ada Lovelace, and Phyllis Pearsall, who single-handedly created the London A-Z. Lovelace was a woman before her time – without her work, Charles Babbage and his ‘analytical engine’ would have been nothing more than a rich-man and his hobby. Pearsall, on the other hand, got lost on the way to a party in 1935, and decided the maps were inadequate. She walked a total of 3,000 miles to compile the first comprehensive street map of the city. Their Crossrail reincarnations drove west from Farringdon station, laying the groundwork for the second stage of the project.

Jessica and Ellie: These names were selected by primary school children from East London, and they come from heptathlete Jessica Ennis-Hill and swimmer Ellie Simmonds, who won gold medals at the 2012 Olympics and Paralympics held in the city. Like their human counterparts, these TBMs were hard-working, each excavating two sections of Crossrail’s route.

London has two brand-new TBMs too, which will be working on the extension to the tube’s Northern Line – the line I spent almost all of my 13 years in London living on. Like Crossrail’s Jessica and Ellie, the names of the newbies – each weighing in at 650 tonnes (or 50 double-decker buses) – were selected by schoolchildren. They drew inspiration from pioneering women in aviation. One is named Amy, after Amy Johnson, the first female pilot to fly solo from Britain to Australia. And the second is Helen, named after the first British astronaut, Helen Sharman.

Seattle – Big Bertha

What more can I say about Bertha? Well, she was named after one of Seattle’s early mayors. In fact, Bertha K. Landes was the city’s first and only female mayor…. And she’s still widely regarded as one of the best they ever had. She fought against police corruption and dangerous drivers, and advocated for municipal ownership of the Seattle City Light and street railways. In 2013, Bertha-the-TBM started her long journey across the city, excavating a multilevel road tunnel to replace the Alaskan Way Viaduct. But just six months into the project, Bertha ground to a halt. Investigations showed that some of Bertha’s cutting teeth had been severely damaged by a large steel pipe embedded in the ground that hadn’t shown up on surveys. Over the next two years (yes, really), construction engineers dug a recovery pit, so that they could access the machine’s cutter-head, and partially replace it. Bertha resumed tunnel boring in late December, 2015. As I type, she’s also on a pause because of some misalignment, but this stoppage is expected to be temporary. Poor Bertha.

Image credit: Washington State Department of Transportation

Auckland – Alice

Since moving to New Zealand in December, I’ve had a bit of rail-infrastructure-shaped gap in my life. Thankfully, Kiwis are also fans of TBMs, but they tend to use them for road tunnels. The latest one to finish her work is Alice – a 3200 tonne (246 buses) TBM that spent the last two years carving a path between Auckland’s major transport routes. Alice’s tunnel connects State Highway 16 and State Highway 20, and once it opens in April/May 2017, it will complete the city’s ring road. Having recently spent more than an hour in Auckland traffic heading to the airport, I can attest to how much the road is needed! Since finishing her tour of duty, Alice has since gone to a farm when she can roam free amongst all of the other TBMs…. Oh if only this were true. In reality, the largest sections of the machine are being shipped back to her German manufacturer. There, her components will be used to build another TBM. So it’s not been a bad life, I guess.

San Francisco – Mom Chung

Mom Chung is another TBM that has already done her job and is now ‘in retirement’. She is named after Dr. Margaret Chung, the first American-born female Chinese physician, who practiced medicine in the heart of San Francisco’s Chinatown. During World War II, she took lots of American servicemen under her wing, earning her the nickname ‘Mom’. Legend has it that when one of her ‘sons’ became a congressman, he filed the legislation to create a female branch of the Navy, in response to pressure from Mom, who was a firm supporter of women in the military. Mom Chung-the-TBM built the southbound central subway tunnel in San Francisco, and even had a Twitter account for a while.

Of course, actual, real-life women work alongside (and inside) these machines. As more women are attracted into engineering, tunnelling is no longer solely a male pursuit. Women still make up a small percentage (around 11% of the UK construction sector, for example), but those numbers are slowly growing. So no matter which way you look at it, women are literally boring. Tunnelling is awesome.

*** You can follow Laurie on Twitter @laurie_winkless. She also wants to say thank you to Dr Jess Wade for inspiring this article. If you love science and very cool doodles, you can also follow Jess on Twitter – she’s @jesswade

 

Austerity, women and health inequalities in the UK

by Amy Greer Murphy, Durham University

My PhD is part of a five year research project entitled ‘Local Health Inequalities in an Age of Austerity: The Stockton-on-Tees study’. It’s a mixed method case study exploring the localised impacts of austerity on health. My role is examining the experiences of women living in Stockton using qualitative research.

A few key terms

Austerity refers to attempts to reduce government deficits through spending cuts and sometimes tax increases. Across Europe, austerity was implemented in many countries, such as Greece and Ireland, as a precondition of receiving bailouts in the wake of the financial crisis of 2008. In the UK, a major restructuring of the public sector and welfare system has been undertaken since 2010.

Neoliberalism refers to the application of free market principles to public policy. It has been enacted in the UK since Thatcher’s Conservative government came to power in the 1980s and has comprised of deregulation (e.g. of the banking and financial system), privatisation (e.g. of bus and rail services) and, more recently, austerity (e.g. extensive welfare reforms).

‘Health inequalities’ refer to disparities in life expectancy and years of health life (‘mortality’ and ‘morbidity’) within and across nations. There is a gradient in all countries – those with more socio-economic resources also have better health (Marmot, 2010). In the UK, health inequalities are widening since austerity began. Schrecker and Bambra (2015) have referred to the process of widening health inequalities and liberalised economic and social policies as a ‘neoliberal epidemic’.

Austerity and inequality in the UK

The UK is a large country, and one of great social contrasts. The contrasts that are relevant to my research are related to inequality of opportunity, resources, health, and the government policies, political decisions and historical legacies that bring these about. The North East has experienced a huge restructuring of its’ social landscape in recent decades. Mining, heavy industry and manufacturing have all but ceased to operate there. The jobs that once provided decent incomes and rooted people to their communities, providing clear routes through the lifecourse and class allegiances, have slipped away. In their place are zero hour contracts in care homes and nurseries, seasonal work in factories and as agency staff providing security in shopping centres.

Through this research process I have tried to understand what neoliberalism and austerity feel like if you’re not on the winning side of them, focussing on gender and class. I’ve then tried to see the wider connection to globalised economies and deregulated financial markets.

Stockton-on-Tees

One of the ways austerity is affecting places and people differently is through health. In Stockton-on-Tees, the gap in life expectancy for men is the largest in all of England, at 17.3 years, and one of the widest for women, at 11.4 (Public Health England, 2015). If you are a man born in one of the wealthier, typically less urbanised parts of Stockton you can expect, on average, to live 17.3 years longer, and more of those years in good health, than a man born just a short walk away, in a more built-up and less well-off part of town. You are also at a higher risk of cardio-vascular disease, obesity, cancer, mental health issues, suicide, alcoholism, to be more socially isolated, have a worse paying, precarious job or no job at all, and to be at the mercy of an increasingly retrenched welfare state for your income and livelihood. The picture for women is similar, but different in crucial ways I will explore later.

This, of course, isn’t the picture for everyone in Stockton; I don’t want to paint a doomsday caricature (Benefits Street, the Channel 4 show, made a noble attempt at that in 2014 with their ‘poverty porn’ foray into life on Kingston Road). Stockton is steeped in a proud industrial legacy, is surrounded by beautiful dales and hills, has a vibrant town centre, and is home to thousands of people of all kinds who are creating thriving and enduring communities. Undeniably, however, government policy is making the lives of an increasing number of its residents tougher.

The research topic

Women face a distinct set of risks under austerity, as their lives, choices and opportunities often play out differently. This led me to develop my research project, to be carried out with mothers from across the borough. I wanted to understand what the experiences are of being a woman living in a place like Stockton – what can they tell us about other similar places that have experienced stark deindustrialisation and withdrawal of resources and traditional routes to employment and social stability? What does it feel like to live through welfare reform, as a mother, with enough money or very little, in an area with lots of different inequalities?

The methods

The research design was informed by the work of Sociologists who have used their skills to bring to the academic and policy world narratives that are otherwise silenced – quite often the voices of women. Berverley Skeggs (1997), wrote about class and gender and respectability in an area of England not so far from Stockton, Ann Oakley (1979; 1993) spent years with mothers asking them what they thought about housework, women’s health and becoming a mother, and Arlie Hochschild (1989) delved into the lives of women trapped in the double- or triple-bind of work, caring for children and elderly relatives. The methods I used are similar to theirs, and ‘qualitative’, meaning they are designed to explore diverse social worlds and understand why certain groups of people or individuals make choices or live in certain ways, or why their lives are presented in a certain light. I had a methodology (system of methods) and sampling strategy (idea of why I wanted to contact, and why). Unlike some quantitative social research or scientific experiment, or the research wasn’t designed with representativeness or generalisability in mind.

I used ethnography, or participant observation; I spent 16 months at a women’s group where I gained friends and mentors and learned about being woman living on a low income in Stockton. I also interviewed 15 women, 14 of whom are mothers, from a wide variety of socio-economic backgrounds and from many different walks of life. I recruited participants through the local Sure Start centres, Twitter, Thrive, the anti-poverty charity I spent a lot of time at, and through snowball sampling (asking people I met if they could recommend someone, or pass on my details). I offered a voucher as a thank-you and recorded my interviews.

Some findings

Continuing austerity and the decline of opportunities: For respondents and their wider networks, there is a huge concern about the likely continuation of austerity and what that might mean for families and communities. We spoke about diminishing opportunity and prospects, the long-term decline of services, the quality and availability of housing and work in the area.

The desire to ‘just be a mam’: Respondents found their roles as mothers and carers increasingly devalued, with the expectation that caring work should be provided by the market and that they should seek formal work as a primary source of income. However, quality work is unavailable, childcare unaffordable, and an important source of identity formation, their role as carers and mothers, diminished under austerity.

Mental health: It became increasingly obvious as I spent more time in the field that the deterioration of participants’ mental health and sense of wellbeing was stark. Discussions of everyday struggles with depression, anxiety and serious bouts of post-natal depression were worryingly frequent. Furthermore, long-term physical health and chronic pain issues were part and parcel of life for many of the women I spent time with, symptoms of a lifetime of stress, poor quality housing and other inequalities (Mattheys et al. 2015).

Conclusion

Underpinning my research is the understanding that women, particularly mothers, face a set of distinct risks under austerity, through labour market changes, reliance on the welfare system and the public sector. They are employed in higher numbers in the public sector, and so more vulnerable to job losses there, and more likely to be underemployed or in low-paid work in ‘feminised’ sectors. They may also face maternity discrimination in their workplace, experience a large gender pay gap and are absent from the labour market for extended periods while they take care of young children. Women also make use of public sector services in high numbers, the very services being cut back during austerity. They rely on the welfare state for many reasons to a much larger extent than men. Welfare reforms like the benefit cap, bedroom tax and sanctions, closures of community centres and privatisation of Sure Starts and lone parent conditionality hit not just women in large numbers, but children and families too. This research is trying to illustrate how austerity is regressive and contributing to growing inequality, and how this group, like many all around the UK, are finding it a challenging time to live through.

References

  • Blyth, M. 2013. Austerity: the history of a dangerous idea. Oxford University Press, Oxford.
  • Hochschild, A. 1989. The Second Shift: working parents and the revolution at home. Viking Penguin, New York.
  • Konzelmann, S., 2014. The political economics of austerity. Cambridge Journal of Economics 38 (4) pp. 701–741.
  • Marmot, M., Allen, J., Goldblatt, P., Boyce, T., McNeish, D., Grady, M., and Geddes, I. 2010. Fair society healthy lives. The Marmot review executive summary. The Marmot Review. UCL Institute of health equity, London.
  • Mattheys, K. Bambra, C. Kasim, A. Akhter, B. 2015. Inequalities in mental health and well-being in a time of austerity: Baseline findings from the Stockton-on-Tees cohort study. SSM -Population Health 2 Pp. 350–359.
  • Oakley, A. 1979. Becoming a mother. Martin Roberston and Company Ltd., Oxford.
  • Oakley, A. 1993. Essays on women, medicine and health. Edinburgh University Press, Edinburgh.
  • Public Health England, 2015. Stockton-on-Tees Health Profile 2015.
  • Robson, S., and Robinson., J., 2012. Findings and recommendations from interim case study: the impact of austerity measures upon women in the North East of England. The Women’s Resource Centre, London.
  • Rubery, J. and Rafferty, A. 2014. Gender, recession and austerity in the UK. In: Karamessini, M. and Rubery, J. 2014. Women and Austerity, the economic crisis and the future of gender equality. Routledge, Oxon. pp. 123-144.
  • Schrecker, T., and Bambra, C., 2015. How politics makes us sick: neoliberal epidemics. Palgrave Macmillan, London.
  • Skeggs, B., 1997. Formations of class and gender, Theory, Culture & Society. Sage Publications, London.

 

Improving future asthma care

L0040548 Flyer and advert for "Potter's Asthma Cure"

5.4 million people in the UK have asthma, and every ten seconds, someone in the UK has a potentially life-threatening asthma attack. On average, three people a day die from an asthma attack in the UK – in 2014 (the most recent data available), 1216 people died from asthma. Many of these deaths are preventable, and continued use of asthma medication is an important factor in this (Asthma UK, 2017). But many people don’t stick to their asthma medication routines. Kathy Hetherington writes about her research into a new method of asthma treatment which is significantly reducing the risks associated with severe asthma.

My PhD investigates patient’s response to inhaled steroids using novel monitoring technology. I have spent the past year coordinating this project throughout the UK, within the Refractory Asthma Stratification Programme-UK, (RASP-UK). I work alongside Professor Liam Heaney and Professor Judy Bradley in Queen’s University, and Professor Richard Costello in the Royal College of Surgeons Ireland. As a young researcher in Northern Ireland I am excited in the knowledge that my PhD has the potential to improve future asthma care.

The Problem

Many asthmatics do not use their inhalers correctly. As a result, they don’t receive their prescribed dosage of inhaled steroid. Within Queen’s University Belfast and the Belfast City Hospital, we have developed and implemented a new method of observing and monitoring how patients use their inhalers. This revelation is significantly reducing the risks associated with severe asthma.

In RASP-UK severe asthma centres we record Fractional exhaled Nitric Oxide (FeNO), which is a measure of lung inflammation. An elevated FeNO is a predictor of worsening asthma symptoms or even an asthma attack. Those who continue to have an elevated FeNO are usually considered high-risk patients who need daily oral steroids alongside their inhalers. This elevated FeNO could be due to steroid resistance, or not continuing to use their inhaler (this is known as non-adherence). Determining inhaled steroid response in a difficult asthma population is a major problem in a clinical setting.

The Intervention

Within RASP-UK, we have established and further validated a clinical test using daily FeNO measurements (using a Niox Vero machine – Figure 2) alongside some additional inhaled steroid. The remote monitoring technology we use alongside this test is called an INCA™ (INhaled Compliance Aid) device. The INCA™ (Figure 1) was developed by Professor Richard Costello in conjunction with Vitalograph and is designed to work with the diskus inhaler. The INCA™ device records a time and date when the microphone inside it is activated, and records a sound file of the inhaler being used; these sound files can then be transferred to a computer. The sound files are then uploaded onto a server via a data compression utility programme where it is analysed by an automated and validated sound analysis algorithm. This combination allows us to create a remote assessment of inhaled steroid response and thus identify non-adherence to inhalers. We then communicate this information to the patients to try and improve their adherence to their inhaled treatment.

With further development, we created a web-based interface (Figure 3) to deploy FeNO suppression testing across the UK though our established RASP-UK Severe Asthma Centres. Here, we examined the utility of FeNO suppression testing to predict inhaled steroid responsiveness after a further 30 days on a normal inhaler. This period of prolonged monitoring provides further feedback on patient inhaler use and technique, using the unique presentation method below, enabling us to identify facilitators and barriers which may be involved in optimising inhaler adherence. We are constantly increasing the precision and user-friendliness of this hardware and software so that the data is easily interpreted and demonstrated to the patient.

asthma3

Figure 3 Data from the Vitalograph server following upload of one week FeNO suppression data and INCA™. The Vitalograph server shows activation and usage of both FeNO machine and INCA™ device (A) and depicts the FeNO data as precentage change from baseline as originally described (y1-aixs figure A).  The INCA™ device time and date stamps the number of inhaler uses (y2-axis – Figure A) and this is shown alongside technique analysis (B). Possible technique errors which can be identified and reported are shown in Graphic 3.

asthma4

The Future

Though we are only a year into our project, 250 patients in severe asthma centres throughout the UK have carried out FeNO suppression testing. Many have gone on to improve their inhaler usage and asthma control and decrease the inflammation in their lungs. We have presented our UK multi-centre data at conferences all over the world and interest in our project is increasing. In the past 6 months I have had the privilege of being a key note speaker at Severe Asthma Masterclasses and Specialist Asthma Meetings. This summer I have been invited as a symposium speaker at the European Academy of Allergy & Clinical Immunology in Helsinki, Finland which will undoubtedly be the highlight of my career to date!

My PhD has given me the opportunity to be able to work with a wide range of fantastic professors, clinicians, patients and co-ordinators. This PhD has convinced me that we can use this unique test and methods of presentation to improve asthma care throughout the world. I can’t express how much this thought excites and drives me; it is with great humility and privilege that I will continue to contribute to this extraordinary field.

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.

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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.

Conclusion

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’.

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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.  

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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.

Background

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.

Appeal

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].

The wonders of kelp, and why we need to save it.

‘Deforestation of the Sea: A closer look at valuable kelp forests in shallow seas around Britain’ by Jess Fisher.

 ‘I can only compare these great aquatic forests… with the terrestrial ones in the intertropical regions. Yet if in any country a forest was destroyed, I do not believe nearly so many species of animals would perish as would here, from the destruction of the kelp’

Charles Darwin (1834) Tierra del Fuego, Chile

Kelp forests: the rainforests of the ocean

A few weeks ago, I settled happily into Finding Dory on a Saturday night. Towards the end, the little blue fish drifts through the giant kelp forests, devoid of life, and sadly proclaims ‘…there’s nothing here but kelp!’. Having studied this oceanic plant, I can confirm that this is 100% scientifically incorrect: well done Pixar.

Kelp forests actually have around the same levels of biodiversity as a tropical rainforest. But why should you care?

Because kelp can do everything: it’s home to hundreds of thousands of marine species, it can be used as a fertiliser and a biofuel, it can be extracted to use in cosmetics like make-up and toothpaste, amongst many more uses. In 1908, Japanese biochemist Professor Ikeda isolated monosodium glutamate (or MSG – one of the things that makes Asian food so great) from kelp. Who knew science could be so delicious?!

Why is kelp disappearing?

Unfortunately, kelp is reported to be disappearing. This is mostly because of climate change making the oceans uninhabitable for some species, but also that more people are harvesting kelp from the wild. Lots of people are even beginning to call it a superfood. While its rapid growth rate (up to half a metre per day in some species) suggests that harvesting kelp should not really be a problem, conservation scientists are worried that all the marine life living in kelp forests will take quite a bit longer to return. Britain is especially important for kelp (because of the variation in habitats and rocky shores) which is why I started working on a project looking to test novel monitoring methods for kelp, so we can potentially measure what is actually happening.

How our project works

Kayaking into the open ocean near Plymouth, we fought through choppy waves into a prevailing wind, whilst I continually threw cold seawater with my paddle onto my kayak-partner, who was sitting behind me! Lots of kelp lives in the subtidal zone (beneath the sea surface even at low tide), and so the plan was to beam sonar onto the seabed from a kayak, look at the graph that the sonar gives back, and then use a GoPro camera to visually verify assumptions that we were making about which graphic patterns denoted kelp. For example:

ChirpExampleAnnotated.png

 This was one of four kayak trips the team made to test the method. Amongst some other objectives, the main aim is to ask whether sonar can be used to monitor kelp at a Britain-wide scale. The findings will be given to our funder, The Crown Estate, who manages development on the British coastline (The Crown Estate is owned by the Queen of the United Kingdom). They would like to eventually create some guidelines for sustainably harvesting wild kelp, so that this valuable seaweed resource (and its associated flora and fauna) will be available for future generations for years to come. Some kelp snapshots from the seabed:

Counting the cost of losing kelp forests

Kelp forests are reported to be worth billions of pounds. In the northeast Atlantic, young lobster live in the kelp, and are eventually fished by a lobster industry worth £30 million alone. Is it worth keeping? Certainly. Is it worth monitoring incase of declines? Definitely.

 Inspired? Check out the Big Seaweed Search, Capturing Our Coast, and Floating Forests for some citizen science kelp-focussed initiatives. You can also read about the project on ZSL Wild Science.

 #NotJustSeaweed