The Assange rape charges (newsflash: nonconsensual sex is rape)

From reading most news reports, and even (sigh) from reading Naomi Wolff, you’d think Assange was being accused of something that’s not really rape, something only those crazy Swedes could call ‘rape’. This is not true. One of the charges is that a woman agreed to have sex with him on condition that he wore a condom. According to the charge, he did not do so, and he failed to tell her this. Protected sex and unprotected sex are different sex acts, and it’s rather easy to see why consent to the former does not constitute consent to the latter. It may be that many jurisdictions don’t recognise this, but they certainly should. The other charge is that another woman agreed to have sex with him and then asked him to stop when the condom broke, and he didn’t. If true, this is a case where consent was withdrawn– that is, consent was no longer present. The sex was NONCONSENSUAL. Moreover, the sex act was REFUSED. It’s not just those wacky Swedes who would think that’s rape.

50 thoughts on “The Assange rape charges (newsflash: nonconsensual sex is rape)

  1. I wish philosophers linking to the story would not put rape in scare quotes. The charges are of rape even if you think they are trumped up or suspicious.

  2. I agree with the premise that if the conditions of consent change, so might consent–frankly, it’s a pretty basic idea, and it’s disheartening to hear people speaking otherwise.

    I should point out, however, that there has not yet been a full investigation, there have been a few weird/inconsistent developments, and that Assange has not yet been found guilty of a crime. Accordingly, the incidents reported above are still alleged–he is presumed innocent until his guilt can be proven in a court of law, no matter how heinous the crime. It is also disheartening to see guilt presumed until innocence can be proven, given the serious nature of the allegations. I thought the case was over when the charges were dropped the second time around, but given the nature of these new allegations, we should wait and see what happens.

  3. Michel, I meant to the post to just be about the definitions of ‘rape’, rather than about the facts of the case. I’ve rewritten a bit to try to make this clearer.

  4. Malcolm, in this post, the scare quotes indicate that the discussion is about the application or definition of a word – they don’t indicate that the charges are trumped up or suspicious.

  5. Monkey, I understand that. I was talking about Leiter using scare quotes to link to talk of the charges. He was pointing out that the charges are politically motivated and used “rape” to talk about them.

  6. Oh I see – I thought you’d glanced at our post quickly and got the wrong end of the stick. (If I wasn’t so tired, I’d probably have understood what you meant.)

  7. Thanks so much for this post! The incipient rape-apology for Assange has been bothering me all week. I knew you’d eventually say exactly the right thing about it.

    Those who are calling attention to the fact that these are allegations, and so there is a presumption of innocence – yes, of course. But most of the comments floating about (in the blogosphere generally) are not asserting Assange’s innocence. Instead they are claiming that even if he did what is alleged it’s still not a big deal, because this is only “rape”, not rape. Those comments are tremendously problematic.

  8. It may seem trivial, but he could have simply said “suspicious rape charges” rather than “suspicious ‘rape’ charges.”

    That he did the latter makes me think he considers the charges as they stand to fall below the threshold of actual rape, not that he’s viewing them as merely being suspiciously motivated. It’s simply a link and there’s not commentary on it, but that was my initial reaction to the post.

  9. Thanks for posting this. I think it clarifies some issues. My sense is that those who have criticized the Swedes are confusing two very different sorts of criticism. There’s the criticism that the charges do not meet an acceptable standard of rape, a very problematic criticism that has been effectively called out there. But there’s also a criticism I have seen circulating the internet that the Swedes (and the victims) continually revised the charges from an initial minor charge to the very serious charge Assange now faces.

    I don’t know enough about the facts to judge the merits of the second criticism.

  10. For an example of that second type of criticism, see this article:

    If what this article says is true (obviously a big “if”), the sex was quite consensual but the women went to the police to persuade Assange to be tested for STD infection. The charges, again if what the article says is true, were gradually inflated by the police into a very serious charge.

  11. Permit me to point out that the item to which I linked reported the facts in such a way that there could not be any charge of rape predicated on those facts. The facts as Jender describes them would support a charge of rape. End of story.

  12. 1) Jender’s post (and the supporting comments) is importantly (but unfortunately) entirely correct and (sadly) much needed.

    2) Although Brian’s comment 17 is exactly correct, please let me indulge in sharing my opinion that (unless you personally know and trust the people involved) once lawyers become involved, we will never (or perhaps just usually not) know with any modicum of certainty or confident belief what really happened. Victims, lawyers, and/or perpetrators should know what I mean.

    3) Given 2 above, I join others in wishing that people would not refer to the charges as suspicious based on reports from or involving lawyers.

    4) Perhaps others do not share my belief that many legal systems (such as the one in the U.S.) are intentionally designed to help lawyers lie, along with the laughable laws against officers of the court associating with lies.

  13. Having said that, David – I think most people finding the whole thing suspicious are doing so because of the leaks and the timing of the arrest.

  14. Sounds very plausible, Monkey. The CIA has indeed orchestrated comparable matters and much (much) worse. Nonetheless, as I imagine others have noted, I have not heard of any evidence that supports such a hypothesis (not your’s, but the one about a nefarious connection between the leaks and the arrest timing. To be sure, didn’t the press and/or the government have access to the leaked documents before the public, in which case couldn’t the arrest timing been better (by being sooner)?

  15. I don’t think there’s much use in discussing the conspiracy theory right now, but he wasn’t brought in – he surrendered himself.

  16. Monkey, agreed! I dislike Wolff discussion for various reasons, but surely it’s right to be surprised at least at the international manhunt for someone alleged to have committed “3rd degree” rape.

    Of course, if this tracking down of alleged rapists starts to happen regularly, it would be something else again.

  17. If the woman agreed to sex with a condom, but the man tricked the woman and didn’t use it, it is a fraud, not rape, and the man should be prosecuted for the fraud. This man should get better at finding women who love doing it without a condom, and this woman should get better at not hooking up with the assholes.

    In the second case where the condom broke, instead of trying to stop cold a horny man in a middle of a sex act, which is like trying to stop a freight train, the woman should have offered an option to continue having sex in a way that is less risky std-wise – a blowjob or a handjob, and then leave to buy the condoms. The consent was withdrawn by a woman, alright, but you can’t just stop a freight train by hitting the brakes, you must account for the inertia before the train fully stops.

  18. No one is obligated to ensuring someone orgasms just because they consented to sex. If consent is withdrawn, consent is withdrawn. Thankfully, men are able to think and act autonomously, unlike freight trains.

  19. Linda, you’re right. And this should preclude men from holding important positions that might require emergency action. I mean, really, what if a major terrorist attack occurred while the President was having sex? His response would be delayed by his inability to stop. Clearly such positions should be reserved for women.

    I must say, though, it’s such a shame that men don’t have hands with which to give themselves orgasms.

  20. Being male, I can assure all of you that we can stop or withdraw our sex organ before ejaculating.

    As Kathryn points out, there is no right to an orgasm.

  21. Excuse me, but if you have an STD and have sex with another person without protection, what you have done is a felonious assault – even potentially attempted murder if the STD is HIV. This comes down to wether a woman has the right to protect herself against infection.

  22. David – thank you for that post, horrible and distressing as it is….I shall go outside and scream at the sky now….and then weep for the real victims of rape.

  23. I scream and weep with you j (for all victims of rape), along with many attempts at appropriate consciousness raising (in discussions with my students, friends, colleagues, and family, for instance).

  24. Ellen, pretty much everyone in this thread agrees with that (apart from possibly Linda).

    The reference to the ‘real victims of rape’ above picks up on the article by Wolff, where she points out that for most victims of rape, they don’t see an international manhunt for the rapist, who is then denied bail. So the point is not that these aren’t real rape charges against Assange. But that these charges are being acted on and taken seriously way beyond what the average rape victim can expect.

  25. Julian Assange furore deepens as new details emerge of sex crime allegations

    Bitter divisions open up between supporters and critics of WikiLeaks leader in wake of fresh claims by Swedish women

    10 days in Sweden: the full allegations against Julian Assange

    Unseen police documents provide the first complete account of the allegations against the WikiLeaks founder

  26. From today on Democracy Now (with Amy Goodman), links below

    “Naomi Wolf vs. Jaclyn Friedman: Feminists Debate the Sexual Allegations Against Julian Assange”

    “As more details emerge about the sex crimes allegations against WikiLeaks founder Julian Assange, we host a debate between two feminists: Jaclyn Friedman argues the sexual assault allegations shouldn’t be dismissed just because they’re politically motivated, while Naomi Wolf says by going after Assange, the state is not embracing feminism, it’s “pimping” it. [includes rush transcript]”

    Part One:

    Part Two:

  27. for anyone interested, Parts One and Two of the interview/debate linked in the comment above begin after a brief (1 minute and 46 seconds), and arguably reasonable, request for donations to Democracy Now by Amy Goodman.

  28. A couple of facts:

    1) The women in sweden, who happen to be friends, did not go to police with rape charges, but to comply an HIV test, following what was reported as consensual sex. Assange was invited into their bed, and according to the reports as read by Naomi Wolf, there was consensual discussion in all instances.

    2) Some loud voices in this discussion have argued for a REVISED definition of consent, specifically that express, verbal consent must be given and renewed with each additional ‘act’ otherwise its ‘rape’. That is bonkers, and sets an unrealistic threshold for a capital offense.

    3) Rape is best understood as a crime of violence, where “no” is ignored and coercion or force is used. There are no allegations of coercion, force, fear or imposition in the sense that rises to “rape”.

    4) Assange is in fact NOT charged with rape, although swedish prosecutors, very likely acting in tandem with US intelligent agencies, have ensured that Assange is smeared all over the world as a ‘rapist’ and ‘alleged rapist’.

    5) Calling sexual ambiguity rape trivializes rape. That’s the point Naomi Wolf was making, and I totally agree. By demanding people take these charges as rape, redefining rape as a “sexual” crime of indiscretion and not “violence” or “power over women” — it belittles other accusers who are facing actual rapists.

    6) If you meet a guy, invite him to your house, get into bed with him, have sex with him. Throw a party for him. Brag to your friends on twitter about having sex with him. THEN claim you couldn’t be bothered to say “no” and refuse sex, but could go file a police report — any thinking person would have to notice the context this is happening in.

    7) The groupthink gang-up on Naomi Wolf is unfortunate. Everything she said was on point. The demand that we take each and every accusation in the worst possible light isn’t “supporting the victim” — it is infantalizing women. Wolf argues that women are “moral adults” and that just maybe getting naked into bed with a man and having sex is taken by any sane person as consent.

    8) For decades, feminists have argued that “no means no” is the criteria of rape. Women have the right to say no, to choose consensual sexual relations. No one is arguing that. But to say “that’s not enough” and adopt some crazy “may I now touch your left breast” legalism treats women like children who can’t enjoy sex. It makes the threshold for rape not just sexual violence, but regrets, second thoughts or (in this case) obvious manipulation of circumstances for cynical political ends.

    Someone yells “rape” to smear public enemy #1? A man who has never before in his life been accused by any woman of impropriety suddenly, strangely, “rapes” two women in less than a week (who happen to be friends who then threw him a party). It stinks to high heaven.

    Taking rape accusations seriously means noticing shadiness, and a model of consent that treats women as adults. Since those women never (ever) claimed “I was raped” — and since in the Guardian report there was consensual discussion — it’s not surprising there are NO actual criminal charges pending, save those in the US for exposing the anti-democratic machinations of the US state department.

    Watching Democracy Now, the woman Wolf debated was irrational, clueless, and hostile. Her constant “I’m offended” was weak. Wolf was on point, to the point — and modeled a feminism that doesn’t suffer from tunnel vision and groupthink myopia. Bravo!

  29. “3) Rape is best understood as a crime of violence, where “no” is ignored and coercion or force is used. There are no allegations of coercion, force, fear or imposition in the sense that rises to “rape”.”
    – This would mean that someone who had sex with an unconscious person who wasn’t in a position to say ‘no’ and be ignored, and didn’t resist, so no force, coercion, fear, or imposition was needed, did not rape them. I, for one, think this is wrong, which is why I think rape should be understood as sex without consent.

    “2) Some loud voices in this discussion have argued for a REVISED definition of consent, specifically that express, verbal consent must be given and renewed with each additional ‘act’ otherwise its ‘rape’. That is bonkers, and sets an unrealistic threshold for a capital offense.”
    – Consenting to sex surely doesn’t mean indicating ‘yes’ once, and then being available to any sexual act the other person might want to engage in. Neither do I think this is a revised concept of consent, nor completely unrealistic. Do you really think, for example, that if a woman consents to vaginal intercourse with someone, that person can then legitimately have anal sex with her? I don’t think so. Also, whilst issues of consent are difficult to decide in court, where it sometimes ends up being one person’s word against another’s, they’re not difficult in the real world. It’s pretty damned obvious if someone doesn’t want to do something. You don’t need to be a mindreader to work that out. This isn’t like requiring written permission to touch someone’s left breast during foreplay! It’s about being respectful and sensitive to the other person. Consenting to one sex act doesn’t mean consenting to any sex act. And as others have already pointed out, sex with a condom and sex without a condom are very different sex acts.

    Notice also, that this post is about the reporting of the charges. It’s not about Assange. Yes, the case being brought about him is extremely dodgy. But that’s another issue.

  30. Jesse Jane.

    There seem to be at least three issues here:

    1. Whether the Swedish rape law is good.

    2. Whether Assange committed rape according to Swedish legislation.

    3. Whether if someone who is not public enemy number one were accused of the same crimes as Assange, Swedish authorities would
    try to extradite him from the U.K.

    I would say “yes” to number 1. A woman who is asleep does not consent to sex without a condom.

    The courts will detemine if Assange is guilty of rape or not. He has good lawyers, and I assume that Assange can get a fair trial in Sweden. If you want to defend a political prisoner who needs
    all the support he can get, why not defend Private Manning, seemingly the forgotten man in this soap opera?

    I agree that if Assange were not who he is, it is very improbable that Swedish authorities would try to extradite him.

  31. Jessie Jane (and amos),

    I too believe that Naomi Wolf has defended a reasonable position that we should take very seriously. Still, I think both parties to the debate that you discuss defended arguably plausible positions and unfortunately seemed not fully to communicate successfully regarding the alleged facts of this particular case and the reasons why they are or are not important to emphasize.

    Here is one point (more generally) on which we appear to take different views:

    “Someone yells “rape” to smear public enemy #1? A man who has never before in his life been accused by any woman of impropriety suddenly, strangely, “rapes” two women in less than a week (who happen to be friends who then threw him a party). It stinks to high heaven.”

    It is not clear to me that we have any way of knowing whether accusations against any person who has [allegedly] never before in their life been accused by any people of [rape/sexual] impropriety “stinks to high heaven”. In addition, so many people are corrupt, abuse power, and/or perpetrate so many crimes that political motivations for exposing them do not, in my mind, constitute grounds for suspicion (apart from suspicion about the motivation for focusing on one potential crime/criminal as opposed to another).

    Although I very often find very plausible comments here by one of the people going by “amos”, I do not agree that courts will determine whether Assange is guilty of rape or not. I also do not agree that good lawyers can secure one a fair trial in Sweden (or elsewhere). Especially when good lawyers are involved, not only will we very likely never know what really happened, but fairness (in the sense of a “fair trial”) becomes much more difficult to obtain, in my opinion.

  32. Hello David,

    Perhaps I contradict myself sufficiently to give you the impression that there are several of us, but I think there is only one Amos who regularly posts in this blog.

    However, to avoid confusion, in the future I will post as AmosX.

  33. Hello AmosX,

    No contradiction that I ever noted! (just my narrow mind sometimes causing me to take a different view or not fully to agree).

    I should have thought more carefully about the regulars here and their aliases/pseudonyms. For some wayward reason, I uncarefully thought that there might be more than one Amos as there might be more than one Anons. I apologize.

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