Many people confidently assert that the rape allegation in Sweden against Julian Assange would not be an allegation of rape under English law.
Assange’s legal team argued this point at both the Magistrates’ Court and on appeal at the High Court. Ther submission was that “Offence 4” (the fourth of the four alleged offences). Offence 4 is stated as follows:
On 17 August 2010, in the home of the injured party [SW] in Enkoping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep was in a helpless state.
It is an aggravating circumstance that Assange who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party’s sexual integrity.
The Magistrates’ Court ruled (emphasis added):
The position with offence 4 is different. This is an allegation of rape. The framework list is ticked for rape. The defence accepts that normally the ticking of a framework list offence box on an EAW would require very little analysis by the court. However they then developed a sophisticated argument that the conduct alleged here would not amount to rape in most European countries. However, what is alleged here is that Mr Assange “deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state”. In this country that would amount to rape.
I have not thought it necessary or desirable to consider extraneous material. I have looked only at the language used in the warrant. The parties have taken me to some further information in the bundle. This appears to consist of an interview with the complainants. I am not sure if this information provides the full extent of the allegation. Even if it does, however, it is unnecessary to consider this material in this context. Section 64(2) applies.
As I am satisfied that the specified offences are extradition offences I must go on to consider whether any of the bars to extradition specified in section 11 are applicable. No bars are raised and none is found.
The High Court decided the appeal on the same point:
It is clear that the allegation is that he had sexual intercourse with her when she was not in a position to consent and so he could not have had any reasonable belief that she did.
(See paragaphs 122 to 127 of the judgment for context.)
Some may say, as a matter of opinion, that the allegation should not be regarded as rape.
And it is certainly the case that the allegation, if Assange is ever charged and prosecuted, may not be proved when the evidence is properly examined.
But there is no doubt that, as a statement of positive law, English courts have held – twice – that the relevant allegation would also be an allegation of the offence of rape in English law.
(Post script – this post by the experienced sexual offences lawyer Felicity Gerry explains in general terms why “sleep rape” would be rape under English law.)