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The Julian Assange Case, Consent, And Rape


Jessica Valenti takes to The Washington Post today to use the reaction to the Swedish rape charges against Wikileaks founder Julian Assange as signs of what she sees as the archaic nature of America’s rape laws:

Now, we don’t know if Assange is guilty or innocent – but we do know that the accusations against him have been badly reported, misconstrued and generally pooh-poohed. In the same way that Assange’s document dump held a mirror to U.S. diplomacy, the accusations against him and the subsequent fallout reflect our country’s overly narrow understanding of sexual assault, and just how far we are from Sweden’s legal standard.

(…)

In the United States, withdrawing consent is not so clear-cut. In September, for example, prosecutors in North Carolina dropped rape and sexual battery charges against a high school football player because sexual contact with the alleged victim began consensually. The dismissal documents cited a 1979 North Carolina Supreme Court ruling, State v. Way, which says that if intercourse starts consensually, “no rape has occurred though the victim later withdraws consent during the same act of intercourse.”

So if you initially agree to have sex and later change your mind for whatever reason – it hurts, your partner has become violent, or you’re simply no longer in the mood – your partner can continue despite your protestations, and it won’t be considered rape. It defies common sense. Who besides a rapist would continue to have sex with an unwilling partner?

It was only two years ago that Maryland overturned an archaic court ruling stating that if a woman withdrew consent, any sex that followed wasn’t rape. In 2007, the Maryland Court of Special Appeals justified this old ruling, explaining that anything after the initial “deflowering” of a woman couldn’t be rape because “the damage was done” to her virginity and she could never be “reflowered.” In fact, the injured party, according to this ruling, wasn’t even the assaulted woman, but the “responsible male’s interest” – that of her father or husband. It took until 2008 for the state’s highest court to change this.

“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,” feminist lawyer Jill Filipovic wrote last week. “We’re deeply wedded to the notion of rape as forcible . . . a consent-based framework for evaluating sexual assault is not yet widely accepted.”

What Valenti doesn’t acknowledge, however, is that our criminal laws are written with two things in mind.

First, of course, there is the idea of prohibiting acts that cause harm to people’s lives, liberty, or property and rape certainly falls within that category. Moreover, up until the 1980s or so it was largely the case that rape was not treated as a serious crime by some in law enforcement and that women who were raped were often subjected to demeaning cross-examination by defense attorneys in which their previous sexual history was made an issue in an effort to discredit them as, basically, loose women who had it coming. In response to that, states started passing rape shield laws and other laws that made it difficult to make previous sexual history an issue in a rape trial except under very limited circumstances. Additionally, it is now nearly universal that the identity of a rape victim is kept out of the press, although many have made the legitimate complaint that there is no similar policy for someone accused of rape who is, after all, innocent until proven guilty.

The second factor that has influenced the drafting of our criminal laws, though, is related to that last point. Not only is someone considered innocent until proven guilty, but there is a principle of law called “void for vagueness” that essentially requires that criminal statues make it clear what it is that is forbidden. In Connally v. General Construction Co., for example, the Supreme Court said:

That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law, and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. International Harvester Co. v. Kentucky, 234 U. S. 216, 234 U. S. 221; Collins v. Kentucky, 234 U. S. 634, 234 U. S. 638.

There is a real danger that the “withdrawal of consent” standard that Valenti and others like her would like to see implemented in the United States would result in laws that are so vague that it would be impossible for a reasonable person to know that they’re committing a crime, especially when the question of whether or not a crime was committed boils down to a “he said/she said” scenario. Such a law may be considered valid under Swedish law, but I think it would pose serious problems here in the United States, as would other proposed changes of which Valenti writes approvingly:

The fact that U.S. law is so ill- equipped to actually protect women in realistic scenarios is a national embarrassment – not to mention a huge hurdle in obtaining justice for sexual assault victims. Swedish rape laws don’t ban “sex by surprise” (a term used by Assange’s lawyer as a crass joke), but they do go much further than U.S. laws do, and we should look to them as a potential model for our own legislation.

In fact, some activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn’t give it.

Again, that may be a change in the law that would be perfectly compatible with the Swedish Constitution. In the United States, however, such a change would essentially mean that every person accused of rape would be considered guilty until they proved themselves innocent, and that any person who has sex is in danger of being accused of rape. Not only is that a perversion of what Americans consider a sense of justice, it also strikes me as demeaning the entire concept of rape to the point where serious offenses won’t be considered serious anymore because they’ll get lumped in with the “drunken college party” scenario. There may be problems with both incidents, but to rewrite the law and pretend that they are exactly the same strikes me as unjust, stupid, and immoral.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. James Joyner says:

    Aside from legal vagueness, “withdrawal of consent” during coitus is rather dicey from a biological standpoint.

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  2. Dave Schuler says:

    I’m concerned that there’s a fallacy involved in this discussion: that there’s some universal standard for sexual practice. Cultures vary in customs and practice in sexual conduct and I have no idea what the standards are in Sweden.

    Even within our own culture we don’t attribute consent uniformly—the “age of consent” varies from state to state from 14 to 18 and in some states remains different for males and females. Some cultures other than our own don’t consider women able to give consent at all.

    Something I think is a legitimate concern in broadening our laws to include withdrawal of consent is timeframe. The coverage I read of the Assange case when the Swedish episodes first came to light suggested that Assange had already been cleared of the charges by the Swedish government and that at least one of the women was upset that Assange had had intercourse with her friend the night before unbeknownst to her. Withdrawal of consent after the fact?

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  3. Rick DeMent says:

    Other then those instances where there is evidence of forcible rape (and not all instances of rape that is considered “forcible” leaves tangible deviance) the crime is always “he said she said”. The fact that something might be difficult to prove should not be grounds for abandoning legal sanctions against it. I don’t think that a legal standard that requires some one to stop sexual activity at any point during said activity is unclear to the point of being vague. No more so then the lines between say manslaughter and murder one.

    While the burden of proof needs to remain with the accuser I don’t see how legal standards that include the ability of anyone to withdraw consent at anytime would be problematic (keeping in mind that convicting a rape case at all is difficult at best). I don’t see where anyone is calling for “withdraw of consent after the fact”. if there are “time frame” issues then those a easily remedied by statute. Also there are different level of sexual misconduct sanctions. Forcible rape is is clear and arguably the most damaging to the victim and should carry the most sever sanctions. Other levels might be needed to address other situations. I’m not sure that calling for that is such a bad idea.

    Clearly statutory rape laws are a joke. They are never enforced and when they are it’s controversial due to that fact. I think it would be a good idea to start out with programs like we have for drugs aimed at kids entering puberty to teach them things like no never means yes ans never to say no when you mean yes. Believe me kids seems to be very confused due to media, porn and such, as it needs to be clarified to these kids in no uncertain terms (to the extent that you could due something like that in schools without incurring the wrath of cultural conservatives).

    I think the terror about a wold where woman can charge rape at the drop of a hat is misplaced, I mean they can now right (and keep in mind that rape is also hugely under reported)? But getting our laws in line with common decency is not part of that threat. At least it shouldn’t be.

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  4. Dave Schuler says:

    I don’t see where anyone is calling for “withdraw of consent after the fact”

    That may be exactly the case with Assange, cf. here.

    Let me be very clear about this. I’m not defending Assange, I’m not asserting that our laws on rape are correct, and I’m not asserting that Sweden’s laws on rape are wrong. I’m saying that 1) what is viewed as “common decency” is not a universal concept; and 2) care should be exerted in either a rush to judgment or extending current law. There needs to be specificity as to what constitutes an offense and in what the standards of proof should be.

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  5. ponce says:

    Certainly a damning link, Dave.

    Would England extradite Assange to face a charge that isn’t a crime in England?

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  6. Clovis says:

    Rick DeMent

    I don’t often call out typos or semi-Spoonerisms, for I make far too many, but a couple of yours beg attention.

    (and not all instances of rape that is considered “forcible” leaves tangible deviance)
    and and should carry the most sever sanctions

    Between “deviance” and a call for Bobbit-ing, you’ve made my evening.

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  7. I don’t see how legal standards that include the ability of anyone to withdraw consent at anytime would be problematic

    How quickly after the withdrawal of consent does the male have to have ceased coitus? Particularly in light of the fact there’s a certain point during the act where the male is for all intents and purposes not in concious control of his body for about 15 seconds or so.

    Can the male withdraw consent mid coitus as well?

    If a female claims to be using birth control and isn’t, can she be charged with rape?

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  8. Trumwill says:

    Rick,

    I don’t think that a legal standard that requires some one to stop sexual activity at any point during said activity is unclear to the point of being vague. No more so then the lines between say manslaughter and murder one.

    I am inclined to agree with you in general, but “at any point” could be problematic. It can take a little time for it to happen if a man is confused about the reverse-course. There is a problem here with how much time you give him. The law would need to be careful on this.

    On the other hand, if the law allows 15 seconds and a guy takes 45, I am not sure any prosecutor is going to go forward with a prosecution on this basis. Their primary interest would be when he kept going with intentional disregard to her desire for it to stop. On the other hand, the leeway a prosecutor would have here could be problematic if the law is not properly worded. What would the proper wording for this law be? It’s not a really easy question. That’s not to say that the law should not recognize that it’s a man’s obligation to stop if she changes her mind, but we should proceed carefully.

    Clearly statutory rape laws are a joke. They are never enforced and when they are it’s controversial due to that fact.

    That depends largely on the circumstances. A 40 year old caught with a 14 year old is very likely to be prosecuted. An 18 year old with a 14 year old less likely. But even in the latter case, if the prosecution is a slam dunk (say there’s a kid involved or they have letters written between the two of them) and/or if you have an irate parent, it’s something of a different story.

    I think the terror about a wold where woman can charge rape at the drop of a hat is misplaced, I mean they can now right

    Without good wording, a woman can not only charge rape at the drop of a hat, but she can technically be right. I think that’s what gives a lot of guys the willies. The notion that they can be acting in good faith and still be guilty. It’s along these lines that men find “drunk sex” laws concerning as well. A whole lot of men out there are technically rapists if they’ve slept with a drunk girl (even if they themselves were also drunk). Not surprising that this doesn’t go over well.

    (and keep in mind that rape is also hugely under reported)?

    That a lot of rape goes unreported does not mean that a lot of false rape accusations also do not occur. Or that they are some bizarre oddity. Or that the prospect of them (and the effect that a given law will have on false accusations as well as true ones) should be disregarded.

    To this end, I think we need a law specifically addressing this subject. Doesn’t have to be limited to rape, but some sort of “Intent to wrongfully imprison” or something to differentiate between someone filing a false police report for an insurance scam and a false police report trying to put a man in prison.

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  9. Herb says:

    “Withdrawal of consent after the fact?”

    This is the most troubling thing about this story. You know, if it was during the act and he kept going, that might be one thing. But if days (or even hours!) later the, ahem, victim regretted what started and ended as a consensual act, then that’s clearly not a sexual assault.

    And that’s even accounting for the differing cultural mores around sexual conduct.

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  10. […] MATACONIS: The Julian Assange Case, Consent, And Rape. “There is a real danger that the ‘withdrawal of consent’ standard that Valenti […]

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  11. spool32 says:

    The Duke Lacrosse incident is worth mentioning right about now…

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  12. Justin Bowen says:

    Again, that may be a change in the law that would be perfectly compatible with the Swedish Constitution. In the United States, however, such a change would essentially mean that every person accused of rape would be considered guilty until they proved themselves innocent, and that any person who has sex is in danger of being accused of rape.

    In what way is this actually substantially different in practice than the system that currently exists in the United States? As has already been noted, aside from cases where there is damning physical evidence linking the accused to the crime he’s accused of committing, the prosecution of rape is he said/she said. When it comes to rape, the pendulum has swung from general skepticism when it comes to the woman to general skepticism when it comes to the man; there doesn’t seem to have been a point when the pendulum hung in the middle, with neither party being believed more than the other until the case has been made.

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  13. MJN1957 says:

    So, now I should wake my mom up so she can notarized the This-Sex-Is-Consensual form AND have a third-party referee available to call the match if she* decides to tap-out?

    *: the girl, not Mom…and you are sick for even thinking like that. 😉

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  14. justthefacts says:

    I’m not at all certain that you folks have your facts right. Consider this account:

    http://www.outsidethebeltway.com/the-julian-assange-case-consent-and-rape/

    Can consent be given while sleeping? Doesn’t seem possible; hence the charge.

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  15. justthefacts says:
  16. pashley1411 says:

    You realize that the two women got together, exchanged stories and probably stoked each other’s emotional fires, and then went to the police, together, to get the guy prosecuted? And, at what point did they withdraw consent; wasn’t it when they are compared stories and determined that the guy had played around with the other woman?

    This is another leftist-feminist fantasy now in the hands of a prosecutor. Its right up there with bringing charges against anyone they have policy disagreements with, like the “Human Rights” commissions. They make romantic comedies about this stuff, not prosecute with lawyers fees and the possibility of years in jail.

    And various prosecutors whose brains are stoked with ideologically but empty of real life will jump at the chance to make a name for themselves.

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  17. Tum says:

    The biggest mistake here is the assumption that a monster like Jessica Valenti is a reasonable person.

    She seeks no less than a unilateral right for a woman to send a man to prison if she regrets having sex with him.

    That is very prone to abuse. And extortion.

    “Pay me $2000 or I will accuse you of rape.”

    Yeah, good job, feminists. Feminism is SOOOO destructive to women that I doubt women could have invented it on their own.

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  18. ken in sc says:

    This is so reminiscent of the joke about the woman who cried rape when the check bounced.

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  19. DonM says:

    Not only would anyone who had sex be guilty until proven innocent, but so would anyone who did not have sex, but had managed to have someone angry with them.

    Given that most of us do not live our lives with a time stamped video camera pointed at us all day and night: Proving that one did not have sex, with merely an absence of evidence. Now compare your ability to prove it after discovery, when an unimpeachable man or woman (or doubly unimpeachable child) asserts with the full force of law that one did, and they have just used discovery to identify the times when you can’t prove that you did not, so they can refine their accusation for maximum effect.

    Yes, people lie under oath. Quelle surprise!!!

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  20. Tum says:

    When it becomes against the law to have sex…

    ….only outlaws will get laid. Good job, feminists!!

    Everyone needs to read The Misandry Bubble. It is the best article around on the pervasive tyranny of feminism.

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  21. Kathy Kinsley says:

    “This is so reminiscent of the joke about the woman who cried rape when the check bounced.”

    A prostitute who gets stiffed (all puns always intended) probably shouldn’t call rape – but a nice breach of contract suit might be indicated. Sex for sale is a different subject. These women were not (as far as we know) charging.

    But seriously, although I disapprove of Assange for a number of reasons, and wouldn’t blink twice if someone got rid of him (which is likely to happen if he keeps this up) , I do not think this particular case should even be prosecuted. It should, in fact, be laughed out of court.

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  22. ali says:

    I see a lot of people here talking about withdrawal of consent after the sex act, but I think I’m missing the quotes where Valenti called for that. It looks like she was saying that if one of the parties says no while they’re having sex, the other partner has to stop. That seems reasonable.

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  23. dragnet says:

    “In fact, some activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn’t give it.”

    The condemnation of this passage has been pretty milquetoast here—and I really don’t understand why. Sure, Valenti wasn’t directly advocating that our laws follow this model but she was definitely holding it up as a potential alternative to what we have now.

    Which is absolutely disgusting and misandric—not to mention the very definition of tyrannical. Shifting the burden of proof to the accused would essentially invalidate the right of the accused not to testify against himself. Since most sex happens in private, most sexual assault cases are of the he said/she said variety. If the burden of proof is now on the accused, he would be essentially forced to take the stand to even have a shot at clearing his name effectively stripping away his 5th Amendment right and taking us back the pre-Magna Carta days. But I guess this isn’t such a big deal in a country where habeus corpus is considered “quaint” and the chief executive now has the power to unilaterally declare someone an “enemy combatant” and have them tortured or killed with no judicial review.

    This is really only the latest salvo in the forward march of radical feminist authoritarianism. In the 1994 the VAWA law was enacted with good intentions—-to curb and eradicate domestic violence. However the law mandates that upon the mere accusation of violence a man can be incarcerated and constrained from returning to his place of residence. That’s right—a man can be forcibly separated from his property & children simply on the accusation of a crime. If this is not tyranny then the word has no meaning.

    The only relevant question here is whether any of us would want our young sons growing up in a world where at any moment they could be imprisoned for a lengthy stretch for failing to disprove a negative (the lack of consent). Or whether we want our daughters growing up in a world in where in the blink of an eye their husbands, sons, uncles could be snatched from them solely on some woman’s say-so.

    For even introducing this as a potential alternative, Valenti should be roundly condemned and her sanity questioned. The fact that she is, in any way, considered a serious and responsible participant in a discussion like this is really a travesty.

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  24. dragnet says:

    One more thing…

    Our “free” society has long held intact one tacit assumption (among many others)—that a certain amount of guilty people will go free and that, while tragic, this is part of the cost of liberty. Sure, we could put away a lot more murderers if we would only get rid of that pesky Fourth Amendment right against illegal search and seizure, strike down due process and eliminate trials by jury but we decided as a long time ago it wasn’t worth it.

    When people like Valenti can casually introduce passages presenting as a possible alternative the nullification of key constitutional rights for an entire demographic just because they have penises—and it not meet with immediate, vociferous, and implacable condemnation in a society where core freedoms are already in the process of being rolled back—it really makes me question whether we’re ready to continue to pay the cost to be free.

    Probably not.

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