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Julian Assange Charges and ‘Sex By Surprise’

Kevin Drum asks, “What are Julian Assange’s Sex Charges All About?

Like me, he’s a bit suspicious of the timing of an international manhunt for the WikiLeaks founder on the basis of Swedish sex crime charges that sound “fishy.”  Also like me, he has no reason to think the Swedish government is corrupt.

He points to a story by Richard Pendlebury in the Daily Mail titled “The Wikileaks sex files: How two one-night stands sparked a worldwide hunt for Julian Assange.”  The sordid details are set forth very well but the key is that “Sweden’s complex rape laws are central to the story.”

The very short version: Assange had consensual sex with two women, unbeknownst to one another, who were friends.  They had hurt feelings afterwards and confided to a female police officer that Assange had engaged in sex with one of them without a condom, having worn a condom the night before.  In the case of the second woman, Assange’s condom broke but he continued to climax, anyway.

One of the women had previously circulated on the Internet a how-to guide titled “7 Steps to Legal Revenge,” which “explains how women can use courts to get their own back on unfaithful lovers.”

So, how in the world can Assange’s behavior, while doubtless that of a cad, be illegal — much less rape?  Feministe‘s Jill Filipovic is appalled that anyone would even ask.

Withdrawal of consent should be grounds for a rape charge (and it is, in Sweden) — if you consent to having sex with someone and part of the way through you say to stop and the person you’re having sex with continues to have sex with you against your wishes, that’s rape. That may not sound entirely familiar to Americans, since the United States has relatively regressive rape laws; in most states, there’s a requirement of force in order to prove rape, rather than just demonstrating lack of consent. Consent is more often used as a defense to a rape charge, and it’s hard to convict someone of rape based solely on non-consent. Some states, like New York, have rape laws on the books which include “no means no” provisions for intercourse — basically, if a reasonable person would have understood that the sex was not consensual, then that’s rape. It seems obvious enough, but those laws are not used nearly as often as forcible-rape laws; they aren’t on the books in many states, and they’re difficult to enforce even where they are.

Withdrawal of consent gets even trickier. It’s an obvious enough concept for feminist thinkers who have spent more than 10 minutes considering the realities of sex and sexual assault: If you consent to sex but then at some point during sex withdraw that consent by telling your partner to stop, your partner should stop, and if your partner doesn’t stop then that’s assault. It’s not too hard, for those of us who have had sex, to imagine how this works — I have a difficult time imagining any decent human being hearing their partner say “Stop!” in the middle of sex and not, you know, stopping. I can’t imagine hearing my partner say “Stop” and not stopping. And if your partner is saying “Stop stop stop stop!” and you keep going, yes, you are raping them.

[...]

Consenting to one kind of sexual act doesn’t mean that you consent to anything else your partner wants to do; if it’s agreed that the only kind of sex we’re having is with a condom, then it does remove an element of consent to have sex without a condom with only one partner’s knowledge.

I largely agree with all of that, although the facts of this case lead me to suspect that the sex was consensual when it occurred and then later withdrawn after the ladies discovered that they’d been used and come to assess the consequences.  Pendlebury reports that the woman with whom Assange had sex without the condom proceeded to roll out of bed and happily go out to breakfast with him.  That doesn’t make Assange less of an SOB.  But it makes it hard for me to think of him as a rapist.

Comments especially welcome, as this is a rather unusual case.  Please dispense with jokes about “leaks,” however.

UPDATE: Charli Carpenter admonishes us that Assange hasn’t techically been charged with “rape.”  Swedish law doesn’t permit making public the exact charges in sex crimes but it appears that he’s been charged with sexual assault and violation of a statute prohibiting sex without a condom.  So noted.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. ponce says:

    “Julian Assange is a loathsome human being.”

    ?

    That seems rather harsh.

    Just because he exposed a few secrets?

    Like or Dislike: Thumb up 7 Thumb down 0

  2. TG Chicago says:

    Perhaps Joyner was referring to these charges when using the term “loathsome”. If so, he should remember that they are merely charges. And if they are true, while I would agree with the term “cad”, I’d say “loathsome” is a bit much.

    Like or Dislike: Thumb up 3 Thumb down 1

  3. PD Shaw says:

    Odd how it’s difficult to prove he-said, she-said accusations to a unimous jury, beyond a reasonable doubt and with the defendant’s right not to even testify.

    Like or Dislike: Thumb up 2 Thumb down 0

  4. PD Shaw says:

    It must be because the Founding Fathers were men.

    Like or Dislike: Thumb up 1 Thumb down 1

  5. Muffler says:

    Does any one note that Assange was hunted down for actually following the Popes edict. So the faith based right wing would hunt him down not becuase he didn’t break any laws publishing on wikileaks, but for not breaking religious laws by using a condom – whoa wait…. huh? I think the global police force have their priorities upside down.

    Like or Dislike: Thumb up 0 Thumb down 1

  6. Steve Plunk says:

    Muffler, The faith based right aren’t all Catholics so your attempt at humor fails.

    PD, These are charges being brought in Europe so our Founding Fathers are blameless.

    This sideshow may just be an attempt to show Assange that governments have power and he should respect that before leaking out everything he can. Try crossing your local code enforcement officer and you will learn the same lesson on a smaller scale.

    Like or Dislike: Thumb up 0 Thumb down 3

  7. michael reynolds says:

    Well, I’m definitely opposed to “sex by surprise.” I prefer to practice “sex by wheedling.”

    Like or Dislike: Thumb up 1 Thumb down 0

  8. TG Chicago says:

    “Muffler, The faith based right aren’t all Catholics so your attempt at humor fails.”

    Also, Assange wasn’t “hunted down”, he voluntarily went to the authorities the day after an arrest warrant came to the UK.

    “This sideshow may just be an attempt to show Assange that governments have power and he should respect that…”

    It may indeed be just that. What a horrible thought, though. I hope you’re not endorsing that notion. Might makes right? If a government doesn’t like what you’re doing, they can drum up unrelated charges against you in order to take you into custody? Awful stuff.

    “…before leaking out everything he can.”

    To be clear, he has not done that. He has leaked only a small fraction of the diplomatic cables Wikileaks has in their possession. More details here:

    http://www.google.com/hostednews/ap/article/ALeqM5i0Vruimmvy8loGklsz34QyGDKMDA?docId=120c7bf5d3a34dbaadf1280dace2e456

    Like or Dislike: Thumb up 3 Thumb down 0

  9. PD Shaw says:

    Steve Plunk, I was responding to the feminist’s complaint that the U.S. “has relatively regressive rape laws; in most states, there’s a requirement of force in order to prove rape, rather than just demonstrating lack of consent . . . and it’s hard to convict someone of rape based solely on non-consent.”

    Given that the accused is entitled to all reasonable inferences and need not speak while his attorney advocates and all the other protections in our system, I find the idea that non-forcible consent in private can be proven to be naive. That’s a feature of the criminal system, not regressive rape laws.

    Like or Dislike: Thumb up 1 Thumb down 0

  10. PD Shaw says:

    Sweden apparently adopted the American “Beyond a Reasonable Doubt” standard in 1985, and has retained it over objections it should not apply to sex and drug cases. I’m not sure that is common in Civil Law countries.

    http://www.scandinavianlaw.se/pdf/40-7.pdf

    Like or Dislike: Thumb up 0 Thumb down 0

  11. Muffler says:

    The implications are that Assange was actually arrested for not using a condom which in some faiths is considered correct behavior as use of said condom is unsanctioned birth control. It’s not humor, but irony. Secondly these faiths are inclusive in the religious right. Which is again ironic that some people are happy he was arrested on something they themselves find legal and godly. They might have scoffed at the idea he did anything illegal in not using a condom and protested as such, but instead are happy he was arrested for anything so as to seek revenge on the perfectly legal posting of the leaks.

    Third – Assange gave himself up as he was being hunted on a international warrant and decided to control the situation and keep it public. Probably the smart choice given the US has secretly remanded without due course many people over the last decade.

    Like or Dislike: Thumb up 0 Thumb down 0

  12. Joel says:

    The Catholic church (and a large portion of Protestants) says premarital sex is wrong regardless of protection, so your point is moot.

    Like or Dislike: Thumb up 0 Thumb down 0

  13. Steve Plunk says:

    TG, I’m not endorsing it at all. That’s why I mentioned the local abuses. Government does this all the time. It wrongs citizens and then doesn’t even say we’re sorry.

    Muffler, The failure to use a condom law sounds like something from a progressive thinking nation. The old ‘let’s pass laws for everything’ type of thing. The Right and religious are blameless.

    Both Assange and the various governments are playing around with things they should not.

    Like or Dislike: Thumb up 0 Thumb down 0

  14. Judann says:

    Not sure what is meant by “manhunt.” The arrest warrant was just issued and approved in the past few days. Also, my understanding is that the warrant is for questioning regarding the allegations but that no formal charges have been made.

    Like or Dislike: Thumb up 0 Thumb down 0

  15. george says:

    “That seems rather harsh.

    Just because he exposed a few secrets?”

    Well, if someone went around exposing things you told another confidentially, wouldn’t you consider him loathsome?

    Like or Dislike: Thumb up 0 Thumb down 1

  16. Franklin says:

    The description of ‘withdrawal of consent’ leaves me uneasy. And yes, I’ve seen this argument before, when feminists attacked someone years ago (I think it was Ann Landers or some other advice columnist) for suggesting that this might go against human nature.

    Yes, if people are thinking clearly, then it’s easy enough to stop when asked to. But this is sex we’re talking about. You’ve got millions of years of evolution controlling your brain during sex, not a modern rational mind considering in a textbook manner whether it would be prudent to continue fornication in such a situation, carefully considered while sitting on a couch sipping espresso. At the very least, I think that basic human instincts should be considered when sentencing a “technically guilty because consent was withdrawn” rapist.

    Like or Dislike: Thumb up 1 Thumb down 0

  17. rk wright says:

    I find it interesting that one of his accusers has been linked to the CIA. http://www.counterpunch.org/shamir09142010.html

    Will this change the dynamics?

    Like or Dislike: Thumb up 1 Thumb down 0

  18. george says:

    “At the very least, I think that basic human instincts should be considered when sentencing a “technically guilty because consent was withdrawn” rapist.”

    Depends in part on how emphatic the ‘no’ was. If was shouted, and accompanied by attempts to get him off, then I think normal instinct would be to stop. Instinct in this case is just a way to rationalize being weak minded. Moreover, anyone who can’t control their emotions probably should be off the street, as they’re likely to be a danger to themselves and others.

    Like or Dislike: Thumb up 0 Thumb down 0

  19. Amory says:

    As a rape crisis counselor and advocate I can tell you that I have heard directly from MULTIPLE survivors that they got up and had breakfast with the aggressor the next morning. They all said they thought this meant it was not rape for many years utnil they realized the long-term harm it caused them. This can be for many reasons: self-doubt and confusion about what just happened; shock; feeling like it’s “normal” even though it felt horrible; not feeling safe asserting that what just happened was wrong, and the list goes on.

    Rapists and abusers do not just “groom” children: they “groom” adults, too. Sex without consent is rape. Over 85% of reported rape in the U.S. is committed by someone known to the victim: friends, family, acquaintances. I believe this is because the trust between the two people (which can be cultivated quickly if someone is famous or has some other role granting them authority) allows the aggressor access in a way a stranger would not. “Conning” someone or “playing” someone to coerce them into SEX THEY WOULD NOT/ DID NOT CHOOSE TO HAVE had they more power, more information, etc. is RAPE.

    Like or Dislike: Thumb up 1 Thumb down 1

  20. The Olde Man says:

    Oh Good Grief!

    The women consented to ‘safe sex’.

    Turned out the sex was not safe.

    Therefore, they did not consent to what happened.

    That’s rape.

    Geez.

    Like or Dislike: Thumb up 0 Thumb down 0

  21. Porter Lee says:

    Evdery major American Newspaper has reported stories in which they state that those stories are based on political leaks. All of those reporters had sex with multiple partners. Do they all get to go to jail too?

    Like or Dislike: Thumb up 0 Thumb down 0

  22. [...] have also been developments on the sex charges against Assange, which have now been clarified, and appear to be more serious than they did a week [...]

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  23. Vinnie says:

    They should come up with another name for whatever Assange did or did not do. It puts him in an unfair light right from the beginning, regardless of what your politics might be.

    Like or Dislike: Thumb up 1 Thumb down 0