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When will it be OK to cheer for Scott Kuggeleijn?

Never, is the answer to the question in the headline of this column.

At least, that’s the answer for some.

The correct answer is that there are likely hundreds, if not thousands, of answers.

Kuggeleijn, for the those requiring a quick refresher, is the breakout Black Caps T20 all-rounder who was charged with rape, and ultimately acquitted after two trials in 2016 and 2017.

Of late, he has been drafted into the Black Caps with much success, smashing the ball to all parts and bowling very, very fast. He was a big contributor to T20 series wins over Sri Lanka and India. He looks a star in the making.

And that has not gone down well.

Banners protesting Kuggeleijn’s presence have appeared at cricket grounds. Fans have pledged not to support any team for which he is selected. Columns, often lambasting New Zealand Cricket for their weak stance on sexual assault, have been written.

And Marty Devlin has got himself in trouble.

That’s all fair enough.

Should people convicted of crimes be barred from finding suitable work upon release from prison? And should that prohibition be extended to all who are accused but found not guilty of sexual offences? Or just cricketers?

But so too is the view that Kuggeleijn has been judged twice by a jury of his peers to have not been proven guilty of committing a crime – and as such should be allowed to move on with his life.

The above sentence will infuriate further those who are already incensed by the notion that Kuggeleijn has been able to sail on with his brilliant life as a professional sportsman while his alleged victim received scant justice from a system that struggles mightily to hold to account those who commit the type of deed of which the cricketer was accused.

After all, they argue, Kuggeleijn damned himself with his own words at a trial that hinged entirely on the issue of consent. The complainant’s evidence was that she had said no to intercourse "dozens of times" and that Kuggeleijn eventually held her down and forced himself on her.

Kuggeleijn’s evidence was that the complainant was lying: "I tried [having sex] twice, like she might have said 'no, no' a few times but it wasn't dozens of times."

The fullest published account of the trial evidence this column could find is here.

For those who believe one ‘no’ is enough, Kuggeleijn’s conduct was disgraceful enough that it should disbar him from selection from a national sports team in perpetuity.

It’s just not that simple.

If the complainant’s version was accurate, then Kuggeleijn should have been convicted. But he wasn’t. Twice.

After sitting through lengthy trials two juries believed Kuggeleijn’s evidence was at least as credible, if not more, than that of the complainant.

Accepting that – and many don’t – we’re left with a finding that the cricketer’s attempts to have sex with the complainant were rebuffed twice and then accepted. That’s not sufficient ground to disbar someone from national representation. Or meaningful employment.

Leaving aside the specifics of Kuggeleijn’s case, the issue of consent isn’t, as we're often told, as simple as “no means no”.

That’s not to say that no doesn’t mean no. It undisputedly does. But it does not mean no forever. Just as a yes can be rescinded, a no can and often is reversed.

We humans spend an awful lot of time attempting to convince other humans to have sex with us. Sex is very high on our list of priorities. It’s not clear how many sexual encounters begin with “would you like to have sex?” followed by a straight “yes” - but the figure sure isn’t 100 percent.

“No” can be steadfastly maintained, or changed into a yes through myriad perfectly pleasant or at least legal means, ranging from charm, romance, a change of mind or circumstance, or even the offer of payment. The process can take moments, hours, days or years.

Kuggeleijn argued in court – and was at the very least not totally misbelieved – that he genuinely thought his persistent efforts with someone who had previously shown him encouragement had turned a ‘no’ into a ‘yes’.

His actions and statements subsequent to the event are consistent with his defence.

Equally, the actions and statements of the complainant – including raising a complaint with police - support her stance that he was entirely wrong.

Again, two juries found there wasn’t a sufficient strength of evidence to prove Kuggeleijn had committed a crime that deserved punishment under the criminal justice system.

But that doesn’t mean he shouldn’t face public judgment – and sanctions outside of court.

The appropriate level of such sanctions is the real issue here. Those who feel that Kuggeleijn has no place representing his country should not overlook that what they are in fact saying is that he should not hold a meaningful job in his chosen career - ever again.

It’s not through protests or boycotts or boos or heartfelt cheers that we lose our way as a society. It’s when we believe that our answer is the only correct one.

Because, as far as cricket in New Zealand goes, international cricket is the only level that provides anything like a meaningful salary. Wages at the lower first class ‘professional level’ are so poor it is more akin to a partially subsidised pastime than a career.

So barring Kuggeleijn from the Black Caps is akin to banning him from a career in what might well be the one area of his life where he possesses the capacity to greatly succeed.

Some would argue that is indeed a price he should pay. It’s likely many who feel that way would likely be champions of social justice, who fight against the inequalities of society across the board.

Given that an inability to find suitable work is one of major impediments to genuine reform for convicted criminals, it would be interesting to know those people’s views on, says, penal reform.

Should people convicted of crimes be barred from finding suitable work upon release from prison? And should that prohibition be extended to all who are accused but found not guilty of sexual offences? Or just cricketers?

Sure, some professions are justifiably held to a higher standard of character and accountability than others.

It’s fine if you believe that cricket is one of those professions. But it’s equally fine if you don’t.

The idea, though, that New Zealand Cricket has been in some way derelict in its duty by selecting Kuggeleijn – and has doubled down on that dereliction by not making any statement that refers to the accusations he defeated in court - is misguided.

Leaving aside the fact that Kuggeleijn is an employee of NZC – and that employers, for sound legal reasons, don’t typically publicly ruminate about the legal issues and moral culpability of staff - the fact is that no words would make this situation okay. Or even better.

They won’t undo the harm Kuggeleijn’s alleged victim feels she suffered. And they won’t absolve NZC from its decision to select a player many Kiwis don’t believe has any business wearing a Black Cap.

NZC could point to the fact that it is the most gender progressive traditionally male dominated sports body in the country – but what would that achieve? When there’s not a single thing you can say to make something better, silence seems like a prudent option; certainly it's preferable to pouring verbal paraffin on a fire.

And it’s fairly bleeding self-evident that NZC believes Kuggeleijn is worthy of selection and that there is no impediment to doing so.

That’s not a view that was ever going be accepted with anything like unanimity.

There simply isn’t one answer to the question of ‘when will it be okay to cheer for Scott Kuggeleijn?' There are thousands of answers - because the answer will be different for just about everyone who ponders the issue.

It’s not through protests or boycotts or boos or heartfelt cheers that we lose our way as a society. It’s when we believe that our answer is the only correct one.

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