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either had sex with someone without her consent, or that he’d continued to have sex with someone after her consent was withdrawn.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).