Home > Bit of politics > There’s still no (update: a case, but a weird one) against Julian Assange

There’s still no (update: a case, but a weird one) against Julian Assange

I woke up this morning ready to issue an apology, on reading the headline that a UK court had remanded Julian Assange in custody on rape charges.

I assumed that the Swedish prosecutors had actually produced some evidence (to be clear, victim testimony would absolutely count as evidence) that he’d either had sex with someone without her consent, or that he’d continued to have sex with someone after her consent was withdrawn. Because, y’know, when you’re dealing with responsible adults, that’s what rape is.

What the Swedish prosecutors have actually dug up is:

1) “using his body weight to hold Miss A down in a sexual manner” (note: outside of the imaginary world the Swedish prosecutor lives in, this doesn’t actually mean anything).

UPDATE: Crikey’s Guy Rundle, the only journalist who’s actually managed to report coherently on this case (and who was in court yesterday), says:

The first [count] is one of rape — that Assange used his body weight to lie on her, pushed her legs open and forced sex.

In light of this clarification, I’ve rewritten the conclusion to this post to avoid being misleading or unfair.

2) “sexually molesting” Miss A by having sex with her without a condom when it was her “express wish” one should be used (note: there is no suggestion here that Miss A told him to stop).

3) “deliberately molesting” Miss A on 18 August “in a way designed to violate her sexual integrity”. UPDATE: Rundle clarifies that this relates to pressing his erection into her back when they were sharing a bed. If you think that should be illegal, then I’ve got a one-way ticket to Afghanistan and a Taliban membership card, just for you.

4) having sex with a second woman, Miss W, without a condom while she was asleep (note: the context is that they’d had sex earlier that night and he’d stayed over in her bed. Again, there is no suggestion that Miss W told him to stop – rather, she woke up, understandably, and consented to sex)

UPDATE: To clarify on 4, it is completely unclear from anyone’s statements whether Miss W was awake or not at the time of penetration, but it is clear from both sides’ statements that once she was awake, the sex was consensual. If Assange penetrated Miss W before she woke up, and Miss W had then not consented on waking up, Assange could possibly be considered guilty of rape even if he had stopped immediately on being told to stop. But that isn’t the claim being made: rather, the claim is that Miss W did consent on waking up, whether that was before or after penetration – and then objected afterwards on the grounds that Assange hadn’t been wearing a condom.

[everything below has been updated]

Now, the events that were disclosed in the media (both by the prosecution and by Assange’s lawyers) prior to the trial solely concerned charges 2-4. When I published my original piece, it was substantially correct on the facts as disclosed (which was the ground being argued on). As far as those charges, which have been discussed and documented elsewhere go, he is a cad, but not a rapist, and wouldn’t be prosecuted for them anywhere other than Sweden

The first charge, introduced yesterday having never previously been mentioned, is different. Unless the prosecution is simply making it up, which is possible given the farcical nature of the rest of their case to date but not probable, we need to assume that Miss A has testified that Assange raped her (under the definition of rape held in English law). This also means that – unless Assange’s lawyers can somehow demonstrate pre-trial that Miss A’s testimony is so compromised that there is no realistic prospect of conviction – Assange should face a trial to determine whether or not these claims are true.

None of this farce does anything to dispel the massive stench of politics-over-justice and rampant incompetence that surrounds the Wikileaks case. But now that Rundle has clarified the first charge, it seems that the English judge was correct not to drop the charges against Assange (I’m not convinced the remand in custody is justified).

  1. dsquared
    December 9, 2010 at 4:35 am | #1

    Yes I ended up concluding the same thing – all the media coverage is "those wacky Swedes", but charge 1 is a very cut and dried charge of rape, and charge 4 would probably be prosecuted in a lot of places. However, they're exactly the sort of cases which are notoriously difficult to successfully prosecute, particularly when drink has been taken on both sides (which I am extrapolating from the fact that this was apparently crayfish party time in Sweden).

    Given the charge though, I have a lot of sympathy for the decision to remand. Assange is a person of no fixed address, is famously an anarchist and is just the sort of person who might be able to get a spare passport if he needed one. He's an obvious flight risk.

  2. cim
    December 9, 2010 at 6:04 am | #2

    And so at the end of it all we find that the reason the information on the charges looked odd is that, as I suspected, English-language journalists are broadly speaking lazy, incompetent, and not fluent in any Swedish beyond reading the labels in their local IKEA, and Swedish prosecutors have about as many good English translators on their staff as the CPS has good Swedish translators.

    Hmm. Charge 1, definitely rape everywhere with even vaguely sensible laws. It sounded like it might have been rape (and definitely sexual assault) even in the garbled version, too.

    Charge 2, not rape in Sweden because there's no force used (those wacky Swedes…), but would be in England. You don't have to repeat statements of non-consent to make them apply. "No means no", not "No, No, No means no; No means go ahead and see if they say No again". Rape/sexual assault can be a highly traumatic experience, and it's well documented that some people freeze up or dissociate under the stress or in surprise: then blaming them for not saying "no" again immediately and explicitly is really not helpful.

    Under English law one must have taken "reasonable steps" to ensure consent to have a defence against it being absent. Ignoring an explicitly stated boundary and giving the responsibility to the other person to explicitly restate it when you ignore it is not "reasonable steps" to me.

    Charge 3, since they didn't consent to it, would be well into the definition of section 3 sexual assault in England. Interesting you pick Afghanistan, where marital rape was recently re-legalised by Karzai, and the Taliban, whose attitude to rape was to prosecute the victim for adultery, as a place and political group where you think this sort of thing might be illegal.

    Charge 4 would be prosecutable for rape in England. If she wakes up, consenting to sex in general but not unprotected sex, but doesn't realise until later that he wasn't using a condom, I think there's a strong case under section 76 that she was intentionally deceived – by starting before she was awake and aware – about whether a condom was in use. (I mean, unless you have prior agreement, it's a really risky thing to do anyway, given that they might well wake up unconsenting, and indicative of a generally bad attitude towards consent that goes well beyond "bad bedroom etiquette")

    So, under English law I make that 3 rapes, and one sexual assault. Under Swedish law it's only 1 rape, and three things roughly equivalent to sexual assault, but it still seems good grounds for extradition.

  3. December 9, 2010 at 6:09 am | #3

    Curse that Crikey paywall.

    You say "nowhere but Sweden", yet my impression Swedish 'rape' law is regarded as backward and not in step with ore 'progressive' jurisdictions such as the UK. It focuses on threat not consent afaik.

    From: http://www.interpol.int/public/Children/SexualAbu

    These articles are extracted from the Swedish Penal Code, Chapter six (6), ‘On Sex Offences’, which deals with sex crimes perpetrated against both children and adults.

    " A person committing rape (sexual intercourse or other comparable sexual act forced by violence or serious threat) can be sentenced to imprisonment for at least two and at most six years. If the rape is considered as aggravated rape the offender can be sentenced to imprisonment for at least four and at most ten years. Rape perpetrated against a child is normally considered as aggravated rape.

    Section 1 of the Swedish Penal Code

    'A person who, by violence or threat involving or appearing to the threatened person as imminent danger, forces the latter to have sexual intercourse or to engage in a comparable sexual act, shall be sentenced for rape to imprisonment for at least two and at most six years. Rendering the person unconscious or otherwise placing the person in a similarly helpless state shall be regarded as equivalent to violence.

    If in view of the nature of the violence or the threat and the circumstances in other respects the offence is considered less serious, a sentence to imprisonment for at most four years shall be imposed.

    If the offence is grave, a sentence to imprisonment for at least four and at most ten years shall be imposed for aggravated rape. In judging whether the offence is grave, special consideration shall be given to whether the violence involved a danger to life or whether the person who had committed the act had inflicted serious injury or serious illness or, having regard to the method used or the victim’s youth or otherwise, exhibited particular ruthlessness or brutality.'
    "

  4. John B
    December 9, 2010 at 6:32 am | #4

    Matt: Swedish sexual offences law is weird. Rape law is more backward than English rape law, but at the same time there are rules on sexual offences short of rape that are frankly surreal in their applicability. In general, Sweden isn't too arsed about consent – rape is defined by force, and sexual offences are defined by whether it makes somebody feel bad.

    CIM: glad we agree on 1.

    Re 2, erm, what? That allegation is regarding consensual sex. There is no explicitly stated boundary – I genuinely don't even understand what you think you're saying here.

    Re 3, erm, what? That allegation is regarding prodding that occurred after they'd gone to bed and had sex, with no indication that she'd told him "no more prodding", or that he refused to stop when asked. Again, while not a defence in Sweden, consent is a defence in the UK, so this wouldn't even be sexual assault. And the point about the Taliban is "persecuting people for incredibly minor sexual offences that nobody in their right mind should view as criminal". Like, say, prodding someone in the back with your cock when you're naked in bed with them. Yes, Afghanistan hates women and Sweden hates men, this changes things how?

    Re 4, I agree it's a risky thing to do and he'd have been in trouble if she hadn't consented. However, section 76 is completely irrelevant, because there's *no bloody deceit involved*.

  5. December 9, 2010 at 7:53 am | #5

    Surely re (4) there is deceit involved if sex was previously instigated under the rules "only with a condom". One might reasonably expect the next morning that the same rules would apply, and even if one enjoyed waking up to being shagged the reasonable presumption would be that a condom was being used (since those were the previously established rules) and not using one and having sex with someone unable to give consent (due to being asleep ffs!) as a means to be able to get around the rules definitely sounds like deception in my book.

  1. December 8, 2010 at 4:39 pm | #1

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