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:

4. Rape

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.)

 

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41 Responses to Assange: would the rape allegation also be rape under English law?

  • cim says:

    The magistrate doesn’t comment on it, as it’s not necessary to establish the legality of extradition, but I’m fairly sure that offence 2 would also constitute rape (rather than “just” sexual assault) under English law, wouldn’t it?

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  • Paul Nelson says:

    Sorry, but the UK Courts were adjudicating on EAW only. Assange hasn’t even been CHARGED! The UK Courts have not been privy to the actual evidence in this case.

    If someone describes themself as “half” asleep does that constitute being asleep? If so thousands of couples up-and-down the country are raping each other every morning. Without the actual evidence any guesswork as to what crime a UK Court may hear is just that – guesswork. You’d be just as well off consulting a medium!!!

    • Claire Q says:

      Irrelevant whether he did it. This is about what he is going to be charged with. Not being charged yet is a formality as they need his statement to complete the charges.

    • Chad H says:

      The “Hasnt been charged” claim, whilst technically true, only exists because of the difference in the term used in Sweden and the UK. To be charged in Sweden, an interview must first be completed prior to him being charged, so as long as he never sets foot in Sweden, then yes he isnt charged.

      However, it does not mean he is not on the run from the Authorities. Assange has challenged the warrant, in Sweden, and failed.

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  • An allegation is neither proof nor conviction, but simply J’Accuse!

    Don’t you find it horrendously Orwellian that any citizen of a free country can suffer so much persecution ~ 10 days in jail, well over a year of loss of liberty (house arrest), threat of extradition, possibly even being shipped off to the US and a death penalty ~ without a single charge being laid?

    But that is, of course, one way to arrive at 1984.

    • James Reay says:

      Indeed, but as has been pointed out, Assange cannot be charged until he has been interviewed.

      In normal circumstances, evading justice would indicate guilt – Assange has managed to avoid facing rape charges and maintain his innocence and present himself as the victim. Nice trick if you can piss of a superpower enough to do it.

      • Zubair says:

        The US wanted to bring him in a few months before the European arrest warrant. So did he piss off the superpower just in case he was accused? Far fetched to say the very least. Makes you think though, is it not suspect that the case was a molestation charge after rape was dismissed but someone higher up the chain brought rape up again. Let’s not pretend countries don’t talk behind the public’s back

      • emirjame says:

        I find it bollocks that he cannot be charged when not interviewed. As he gave one interview already & may choose to be silent in the next one – of course they should have a way to charge him! But if they do – they will have to publish the ‘evidence’ and as that is very shaky – they don’t want to!!

  • Eugen Radescu says:

    Is there a way to prevent such allegations to emerge at the will of the woman in an intercourse? Can I, as a man, make such allegations? Not only the allegation is silly, but she can make up such allegations at will. I think in this sense I raped my former wife and my present girlfriend repeatedly, deliberately and without any consent of theirs, and I have to be grateful to them that I was not charged. I have to be grateful to them again they didn’t have the idea to make up some allegations, even if from time to time I truly raped them.

    • Megan M says:

      If you “from time to time” truly raped them, then their allegations aren’t made up, are they? You just identified yourself as a rapist.

  • rihfiurhuih4ruir says:

    Anyone with a nose on their face can see this whole extradition farce has nothing to do with rape…
    trying to convince yourself otherwise is self delusion trying to hide yourself from the fact that if the empire wants you -your gonna get got.
    If we hand over assange to the us -by proxy sweden too.it establishes very firmly once and for all the sovereign state of the uk is history.
    when that door comes off the hinges at the embassy we officially become the 51st state.

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  • Zubair says:

    “…she, due to sleep was in a helpless state.”

    What does that mean? She was asleep when he started? Does that mean she woke up during the act and could not fathom what was going on in time to say stop before the deed was done? Or did she wake up and say no but he continued. Or did she sleep through it the whole time? Or did he begin foreplay while she was asleep but she regrets a decision made when sleepy? The statement is incredibly vague; each of the above situations has a different outcome in terms of culpability. In one case there is certain cause to claim rape. In another a mitigating mixed signal may have been given. That is on the charge alone, which, may I point out, has not actually yet been made.

    Furthermore, I have a hard time believing the lady was asleep the whole time. Who sleeps through someone being inside them? There is then a fork; she awoke and said stop or she awoke and said nothing against it. If she indicated him to stop; he’s a rapist. If she didn’t he had no reason to stop. No one is passive when it comes to having sex; either you want it or you don’t. Sweden needs to charge him, show a bit of evidence and guarantee he won’t be extradited to America before ANYONE, myself included, can conclude that the charge is rape under English law.

    • Fred says:

      There’s a giant hole in your logic; while yes, there is certainly a case to be made that having sex with someone who is half asleep, who had earlier in the night consented to sex, is not rape (especially if the woman wakes up and says nothing) you’re ignoring that the woman had consented to sex with Assange WITH the very explicit condition that he use a condom; he waited until she was asleep, and then initiated sex with her for a second time, WITHOUT a condom. She awoke, but assumed he’d put on a rubber, and so didn’t say anything until AFTER sex, when she discovered he’d gone bareback, against her express wishes.

      If consent is given with conditions, and those conditions aren’t met, then consent is not in effect. Hence it is rape.

      If you STILL don’t see the problem, shock value works; what if the condition of consent was for ” vaginal sex only” and she woke up with Assange entering her anally? Now is it rape? If you can accept this, it’s now only a matter of degrees, and the law doesn’t care about that.

  • Miss Black says:

    “Many people appear to confidently believe that the rape allegation in Sweden against Julian Assange would not be an allegation of rape under English law”

    As an aside, a Swedish trans woman was raped recently but the attacker was let off because she had a penis and Swedish law does not consider the rape of a woman rape if she has a penis. Since the attitude of the Swedish government seems to be biased towards the religious American fundamentalist right-wing therefore, I doubt whether their need to have Assange has anything to do with the alleged rape allegations by two of their own citizens and more to do with pleasing their political paymasters in the USA.

    • Jenny F says:

      There is a law in Sweden saying that if the crime could not have been carried through, it is not punishable, even if the intent was criminal. That was the reasoning behind the verdict, religion plays no part in it.
      It should also be said that the judge urged the plaintiff to appeal, and they have done so.

  • Ken Haylock says:

    Coming to this post late, I can see that initiating sex without a condom with somebody who is asleep but has previously demanded that a condom be used is prima facie rape (unless consent to intercourse renders it ‘merely’ sexual assault), but I cannot see how a conviction can possibly be gained here – there are only two people present, the woman is clearly ‘into’ Assange in that she has just had consensual sex with him before they went to sleep, and all Assange has to say is that she initiated the morning sex by grabbing him and opening her legs or whatever. It might well be true for all anybody apart from Assange knows. It seems as likely if not more likely than that Assange managed to penetrate this woman without waking her up, after all, and that is surely unavoidable reasonable doubt, given that even his possible victim cannot testify that it didn’t happen, and that she only decided she felt violated by it in hindsight after Assange was proven to have the sexual morals of a polecat (which is not, as I understand it a crime in the UK). So, if the allegation of conduct that amounts to rape cannot possibly lead to a conviction unless Assange pleads guilty, is it in order for the Swedes to use a charge that cannot be proven in order to get their mitts on a suspect who can then be charged with and convicted of numerous weird Swedish sexual crimes that _aren’t_ offences in the UK?

    • Fred says:

      You’re entirely correct – however, the answer is (probably) a lot more humdrum and dull. First off, in Sweden the prosecutor can decide whether a case is should be brought, but once this decision has been taken, it can only be dismissed once certain criteria has been fulfilled. In this case, an ambitious prosecutor hoped to get two birds with one stone – first, to test the limits of the new stricter rape laws in Sweden, and secondly to do so with a high-profile case/suspect. The prosecutor probably had high hopes that Assange would have admitted to the crime, not willingly, but because he was ignorant of Swedish law.

      Then the whole thing spun out of control. Once Assange ran to the UK, the Swedes had no choice but to bring the whole weight of its justice system to bear on getting him back; anything less would have set a dangerous precedent, basically telling the world that it’s ok to run from Swedish law.

      I say this is probably the case – I highly doubt any Swedish politician would dare send ANYONE to the US after the scandal a few years back, where it was revealed that two Egyptians were transport through Sweden by the CIA with the support of the Swedish government. If the woman who was foreign minister back then hadn’t died before the scandal broke, she’d be in prison now, that’s how serious it was. So if people think Sweden, who after all has a long history of NOT know-towing to the US (the Swedish government are still hiding lots of draft dodgers and deserters from the Vietnam war and has refused to hand them over for many decades now), would extradite Assange think again.

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  • emirjame says:

    I was in court when this was discussed in detail. It was clear that woman 2 never objected to sex with Assange . She was not happy though when she discovered he did not wear a condom but (in her own words) decided “to let it continue”.
    As she never objected to the sex itself & gave consent when he told her he did not use a condom…. this does not constitute rape in the UK. She also did not consider it rape as she gave her interview in the evening, saw that Assange was accused of rape & decided not to sign her interview in the morning.

  • Jasha says:

    I’m not sure about this case, since I don’t know all of the facts, however the idea that sex with a sleeping partner, in the context of an ongoing sexual relationship, is always rape is very problematic. All of the woman I’ve been in a long term relationship with have, at one time or another, done this with me (“bj alarm clock”, one of them jokingly put it). Maybe I just date unusually kinky women but I doubt it. If equally enforced such a standard would put many, many couples in legal jepardy.

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  • arcticredriver says:

    I read the article by UK lawyer Felicity Gerry you linked to in your postscript, and it seems to me it has less relevance to the Assange case than you implied.

    I am an older guy now, I am single, and my overall health may preclude me having another sexual partner, so this is all theoretical for me. Further customs may have changed — but my hazy recollection from when I was young would be that when a new partner invited or agreed to make love, and they stayed to sleep in my bed with me, or they didn’t ask me to go home, to my own bed, after the first act of coitus, I would think that they were open to further love-making, or at least the possibility thereof.

    Of course each time you want to make love with a partner, in the same bed, should require separate consent. But, with two half awake people, who have already agreed to spend the night together, implying at least the possibility of further love-making, how explicit does that consent half to be?

    When one sleepy partner responds to a sleepy kiss, or sleepy caress, is that consent? If these sleepy caresses escalate into foreplay that both partners participate in, is that sufficient consent?

    Now if the man agreed to wear a condom, any time they made love, and he knowingly skipped wearing one, without his partner noticing at the time, that would be a terrible breach of faith. I understand that in Sweden and the UK, it is an on the books sex crime. Maybe it is a sex crime where I live too.

    From some descriptions, it sounds like this is what Assange is really accused of doing. Other descriptions imply he inserted his penis into his fully asleep partner with zero warning or foreplay.

    Does the distinction matter? I think so, one description being of trickery and deceit, while the other is an act of violence.

    What if his defense is “Jeez, I know I agreed to always wear a condom. I know she trusted I was wearing one, when I entered her. But I was half asleep myself, and I simply forgot. I know this was selfish, and I feel terrible about it now, but I didn’t knowingly refrain from wearing a condom…”

    Should that defense, if it is believed, hold any merit?

    Healthy men get an erection during rapid eye movement sleep. This happens 100 percent of the time. I was never a lover with a huge number of partners, but once, I woke to find my new partner had detected an erection that accompanied my REM sleep, and had started performing fellatio, without first waking me.

    Was this bad manners on her part? That night was the first time we made love, and we had not previously discussed fellatio. So, yes, I think it was. I guess I could have tried to get the police to charge her with a sex crime — for initiating a sexual act without my consent. That possibility never occurred to me until this moment.

    Decades ago, when this happened, I imagine I would have been laughed out of the police station, even if a female desk sergeant took my particulars, if my complaint was my lover performed fellatio without my consent.

    Some of the early reports I read suggested that Assange had deceived the women, at least to the extent of withholding from them that he had other partners. Those early reports implied Assange didn’t realize the women were acquainted. Those reports said the two women were vaguely acquainted, and through some kind of coincidence they realized he was sleeping with both of them, and they laid the charges when they realized that. I am not trying to imply that, if this is what happened, they don’t have a legitimate beef, or a legitimate reasons to lay charges. If one agrees to make love with someone you believe has no other partners, who withheld from you they have multiple partners, you haven’t truly given your informed consent. The way I see it, a legitimate fear of disease makes sex with someone who has multiple partners more risky.

    Some decades ago Kate Filion wrote an excellent book on sexual politics, “Lip Service”. In one chapter she offers a fictionalized account of a young woman who gets a lot of support on campus, and ruins the academic career of a fellow student, after he initiates sex, without explicit consent, when there was was some reason he ended up staying overnight in her dorm room. In this fictionalized account the young woman claims he raped her, a day or two after the event. In Filion’s fictionalized account her heroine only decides she was raped when he fails to phone her the next day. Her heroine’s description that it was rape was retroactive. If the spontaneous act had been the first event in a genuine relationship, her heroine would not have considered it rape.

    If there is any grain of truth to those early accounts, that implied the two Swedish women only decided they had been raped retroactively, when they realized Assange had not been faithful to them, then I think there may be a parallel to the chapter in Filion’s book — although Assange’s case is complicated by the different level of informed consent one should give when one’s partner is not monogamous.

    We may never have a reliable account of what happened. Maybe it is none of my business. But I would like to know how trustworthy a person Assange is.

  • didi cooper says:

    according to the bbc Swedish Director of Prosecution Marianne Ny says she is reopening the rape investigation against Mr Assange, after him having been questioned for an hour by Stockholm police the day before, does this not constitute being ‘interviewed’ so why no charges? the arrest warrant had been dropped 11 days before and I assume he was interviewed then too “I don’t think there is reason to suspect that he has committed rape,” says one of Stockholm’s chief prosecutors, Eva Finne. . Its clearly non consensual IF he attempted penetration without a condom while someone is sleepy or sleeping IF that has been CLEARLY stated during previous consensual sex. One has to question the reliability of the two women, who took in each case, either 3 to 6 days respectively, this after consulting with one another, to decide whether they had been raped and after both women have assumed that they would have a deep enough connection with a man they have little knowledge of to trust that he would understand their needs and that they would be able to communicate those needs clearly in an intimate situation. And again the alleged act may constitute rape here in England but whether the Crown Prosecution would consider it a prosecutable case is again another question. I am quite sure that in this country there are many women whose cases have not been prosecuted as they were regarded as likely to fail with much stronger grounds than appear to be the case here, where ‘consent’ is ambiguous at best. There is also the question of the charge ‘minor rape’ which exists in Sweden. I don’t know about you but I find that a bit of an oxymoron and doubt that such a charge does much to forward women’s rights in such cases. I don’t know the full facts and without access to court and police transcripts neither do many screaming for the man’s blood but if there is the slightest suspicion that the charges are a front for another agenda then his request for a hearing to make a statement in the UK Swedish Embassy is a legitimate one.

  • Elisabeth says:

    This is bizarre beyond anything I’ve ever read, I could have had my husband charged hundreds of times and likewise he having me charged.
    For someone growing up in Sweden, now living elsewhere, I beseech you, find someone who can help you. Go on Swedish sites and find out what actually happens in Sweden to women who are actually raped, gangraped and more. Find out about the Swedish courts, with five jurors, majority vote. Jurors are employed, elected by politicians and I have heard of them sitting there into their eighties. I have read horror stories.
    I am thankful my daughter grew up in Australia, not because I don’t love my homeland but because it is a horrendous place for real victims of rape. Please read up about statistics while you are at it.
    Shame on Swedish authorities, shame on you. In Sweden there is no justice either way

  • Elisabeth says:

    I have read about gangrape where men get off because the woman was drugged up.
    Swedes are very isolated because even though they speak English, Swedish sites are easier to seek, and few English speaking people seek Swedish sites.

    link below Svea Court stated that a sleepy woman cannot be classed as helpless. The man was freed.

    http://www.metro.se/nyheter/frias-fran-valdtakt-kvinnan-var-inte-tillrackligt-hjalplos/EVHldr!YkoYKZTf0uoJ6/

    Next link man got off because woman was drunk.
    http://na.se/nyheter/orebro/1.1032603-friad-fran-valdtakt-kvinnan-var-berusad

  • Hamid says:

    It would probably help with discussion if this were reinforced with the relevant legal provisions in English Law. Rape defined in the Sexual Offences Act 2003 and is the intentional penetration of the mouth, anus or vagina with a penis, without consent and without the reasonable belief that consent is given. (Sexual Offences Act s1 (a)-(c))

    Consent is defined later in the act. s.75(1) states that if sex occurred, a series of conditions in s.75(2) apply and that the defendant knew that one of those circumstances applied, then consent was not given. The Magistrate here is presumably referring to s.2(d) ‘the complainant was asleep or otherwise unconscious at the time of the relevant act;’. I haven’t read the case itself, so I’m making a presumption here.

    This means that if the claim is that Assange had sex with the women and she wasn’t able to consent because she wasn’t asleep, then that is probably rape under English law. Crucially, of course, the merits of evidence would have to be judged in court, in this case in the courts of Sweden. If they were to find Assange guilty, then he would be guilty of rape under English law too.

    What Assange’s defence would likely argue is that on the evidence, either Assange didn’t reasonably believe that consent was witheld (in which case it’s not rape) or on an evidentiary basis, she wasn’t asleep at the time that sex occurred. In either case, it’s not for the English judge to decide whether rape did or did not occur, but in that part of the ruling to establish whether the proescutor’s allegations would meet the requirements of rape in English law, which they do. Not just because the magistrate or High Court judge said so, but because English legislation says so.

    Anyone interested can look through the Sexual Offences Act 2003 here: http://www.legislation.gov.uk/ukpga/2003/42/contents

  • D Dortman says:

    If someone starting to have sex with you whilst you are asleep after sex the night before is rape, then I’ve (as a man) been raped countless times.

    If you then go further down to just sleepy (or intoxicated) when someone initated it, I can’t even imagine how many times.

    Mind you I’ve had my bum pinched by strange women in public many a time, and I wouldn’t class that as sexualt assualt, even though the Law probably would.

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  • Elisabeth says:

    The reports are out there. Reading through them; I can only read that there was concent.
    The women only went to the police because they wanted a std test done. I have trouble understanding why in fact everyone argue about sleeping and concent. The reports are dealing more with the condoms issue, implying that JA had tampered with them. That he had cut them rather than a natural tear which do happen frequently.
    Reading on the net, I know at least one of the women refused to sign the statement at the station once she understood what was happening. And why the dealted tweets done later. There was no DNA on one condom, sent for retesting. Test that they will not release why because it is damning or because there is nothing there. And why not question JA while he waited around in Sweden for some twenty + days.
    Surely everyone abhors violence, sexual againts women as well as children and men, but this seems to have moved beyond bizarre. But read through the report. How can anyone read anything but concent. I know in the past Swdish courts have very strongly demanded a definite no to convict which is why men have been freeed even in cases of gangrape when women have been too drunk or drugged up to protest even verbally.
    Elisabeth
    Elisabeh

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  • M says:

    “without the reasonable belief that consent is given”
    AFAIK, they had sex by consent in the beginning of the night. It sounds like a 100% reasonable to believe that consent didn’t somehow “expire” by the end of the night (morning).
    And I second the comment about “bj alarm clock”.
    Summing up, this whole case looks really really weird. Considering who Assange is, it’s hard to believe the cases are indeed about a “rape”. Rather about Assange’s freedom. Or money (AFAIK, his estimated net worth is $1.3 million).

  • Megan M says:

    Its amazing that an overwhelming majority of these comments are from men who dismiss the victim’s allegations as ridiculous because she’s 1) “making it up”, or 2) They have a problem with the legal definition of rape, and are self-proclaimed rapists. Consent cannot be assumed, no matter how much you may wish it could be.

    • Jasha says:

      So…you are saying that you DO think my wife, and all of my previous girlfriends, should be arrested and charged with rape for the times they’ve woken me up with a BJ?

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