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Beyond Ched Evans: How rape is recognised by law “Ched Evans”. In the space of less than a week, the name has gone from evoking blank stares and questions of “is that a cheese?” to being a byword for the seedy side of English football, the perils of Twitter use by politicians and the perennial debate on criminal justice and rehabilitation. For the benefit of those returning from orbit, Ched Evans is an ex-Sheffield United striker who was fired in 2012 after being convicted of the rape of a fall-down-drunk 19-year-old waitress – a conviction that was confirmed on appeal. Evans was released after serving two-and-a-half years of his five-year sentence. His name hit local headlines after it emerged that Paola-based football club Hibernians had offered Evans a contract, unleashing a veritable hurricane of protest.  From conversations and exchanges with the man and woman on the street, many Maltese appear unaware or worse, misinformed, as to what actually constitutes rape under Maltese law, a fact not helped by the local practice of hearing rape cases behind closed doors (as opposed to ordering a ban on publication of the names, as occurs in other sensitive cases).  What it is and what it isn’t The crime of rape is a very specific one, committed by the performance of specific acts and requiring a specific intent. It is not getting groped in a disco. Neither is it necessarily the end result of regrettable choices made in an alcoholic haze. It certainly isn’t waking up with second thoughts about your one night stand. The above may constitute other offences, depending on the circumstances in which they happened and why, but rape they are not. MaltaToday contacted lawyer and criminal law lecturer Stefano Filletti in order to clarify the differences and similarities between the way the Maltese and UK jurisdictions deal with the crime. “The offence under Maltese law differs from that under the law of England and Wales in that rape has been committed wherever there is what the law euphemistically refers to as ‘carnal knowledge’ achieved through violence, whilst in the UK, the determining factor is the absence of conscious consent”.   The scope of ‘lack of consent’ casts a wider net than violence, while including instances of violence (physical or even emotional), as it cannot be said that a victim subjected to violence has also consented to the sexual encounter. In fact the Maltese Courts have always noted the similarity between the two. “By violence one understands both physical and moral violence. Every violent act presumes that there is no consent,” pointed out the lawyer. Thorny issues Filletti remembers past calls to redefine the offence under Maltese law to require “lack of consent” rather than “violence”, however he believes that this would simply set the courts back tens of years in terms of interpretation, and this is because – as is often the case with legal matters – the requirment of “lack of consent” raises practical questions. For example: can the law presume consent between spouses? Non-married couples? What about married spouses who live together but who have an argument? How do you go about proving this? It gets more arcane – the law must cater for every concievable eventuality, after all. How about cases of mistaken identity? Or perhaps an encounter on the basis of a promised payment that isn’t honoured? Filletti points out that these strengthen the argument in favour of retaining the current definition with its interpretation rather than opening the definition for reinterpretation. “In amending the definition, one would effectively wipe away years of judicial interpretation and introduce a new offence which would have to be reinterpreted. This is not always a favourable solution.” Issues that often confuse The victim didn’t resist – does that mean it isn’t rape? No. Just because the victim didn’t resist physically doesn’t exclude rape. On the contrary, victims often realise that physical resistance would cause the attacker to become more violent. The law recognises ‘moral violence’ – threats, intimidation and coercion – as also satisfying the ‘violence’ criteria for rape. The attacker was an ex – does that affect anything? Again, no. The major legal requirement is violence. The fact that the perpetrator and the victim have or had a pre-existing sexual relationship is immaterial. In fact, the offence can even occur when the attacker is the victim’s spouse.  One party doesn’t remember what happened exactly – does this mean it was or wasn’t rape? Memory loss is a common side effect of intoxication and date rape drugs, but this doesn’t necessarily mean rape took place. Without clear memories or physical evidence, it may not be possible for the police to prosecute.  One party was drunk, unconscious, asleep or afraid of the other when the incident occurred – how does that change things? If one party was asleep or unconscious, significantly intoxicated or influenced by drugs, unable to understand what they are consenting to due to their age or intellectual capacity, intimidated, coerced or threatened, unlawfully detained or held against their will, or if they submit due to the attacker being in a position of trust – it is rape.  The legal issues are complex and the permutations of the possible factors are many but as a helpful rule of thumb, bear in mind that all participants in any sexual encounter must be adults of sound mind, conscious and willing. In the absence of any one of those four elements, you’d be best leaving the party alone, as one ex-footballer will certainly attest. Victim Support Malta encourage those persons who feel they may have been the victims of a sexual assault to contact them on 21228333 or [email protected] during office hours or to head directly to Mater Dei Hospital and ask for the Sexual Assault Response Team