So advises Jemima Khan regarding Julian Assange in The Times today [£]. She is the latest in a long string of former Assange supporters to have a wakey wakey moment about the WikiLeaks wide boy, and deserves credit for going public rather than slinking away silently and without apology as have many other people who once defended him.
In fairness to all his dupes, Assange clearly is a talented con man, and The Times notes that he continues to be astonishingly successful at mulcting people to the tune of hundreds of thousands of pounds.* He will never be completely isolated. Just as even the most twisted conifer retains some sap, enough people tend toward adolescent idealization or inability to admit error to ensure that Assange retains a few groupies in perpetuity.
Khan also argues, and I strongly agree, that Assange should be forced to face his accusers in a rape trial. His narcissism, sense of entitlement and chronic dishonesty are all consistent with being a rapist, but let him have his day in court before rendering definitive judgement (or more accurately, let the women who are accusing him have theirs, as he is the one who is preventing the trial from happening).
The Ecuadoran government has painted itself in a corner by staking national prestige on protecting Assange, and it is not clear that they can climb down without feeling humiliated. The US, UK and Swedish governments are probably in no mood to do Ecuador any favours, but nonetheless should do the decent thing: Agree to allow the Ecuadoran embassy staff to send Julian out for coffee and then feign shock as they denounce his ensuing arrest. Assange will milk his apprehension for more publicity, but a good relationship with Ecuador simply matters more in the long term than does this vile little man.
*However, it has to be said that none of the RBC bloggers who wrote about WikiLeaks was taken in by him even for a moment.
I don’t know why you link to a descriptive article in the Times, which by the way you put a pound symbol is likely meant to be paywalled, though I didn’t notice one, when other descriptive articles are available and, more importantly, these articles were written in response to an article Ms. Khan has written for the New Statesman, an article that is apparently available for free.
I haven’t read the article yet, I’ll save any substantive thoughts for later - except that while I’ve never had any liking for Mr. Assange and have frequently criticized his more enthusiastic defenders, it’s important to recognize that the reason Assange may have been able to dupe a great many people is that, albeit in a deeply flawed and possibly unproductive manner and from whatever dubious motives, his actions have addressed important issues.
Thanks for the usable link, Warren. Professor Humphreys has no doubt explained his “con man” charge in another blog post. If someone could link that, I’d like to see it. Ms. Khan certainly doesn’t make that charge. Her piece is quite balanced.
She goes on in this vein. It’s not at all what I expected given Prof. Humphreys’ description. She certainly doesn’t describe him as a con man, and she offers no apology for having supported him. She just wants him to face the authorities in Sweden.
She has some curious ideas about providing evidence to support her view that Sweden wouldn’t do something underhanded on behalf of the United States - for instance, to support her view, she cites the fact that Sweden did rendition flights for the U.S. until 2006. I can’t speak to the legal opinions she offers, but the lawyer she cites pretty clearly has an ax to grind and is - at least when not speaking about technical legal matters - pretty plainly full of it.
That said, based on the available evidence, it’s certainly possible that Assange is a despicable person. He’s also done some heroic stuff, and Khan reconciles those facts in an entirely reasonable fashion.
You know, all it would take would be a guarantee from the UK government that they’ll refuse to allow a potential extradition to the US, something Sweden has allowed in the past. But they won’t do it, and frankly, Assange has every right to be afraid that he’ll get extradited to face the same type of abusive treatment that Bradley Manning has to go through (which is also unfortunately typical of the Obama Administration, as abusive towards whistleblowers and leakers as the prior one).
Exactly.
The prior administration didn’t treat every leak as a capital crime or torture whistleblowers. The scale of the current assault on leakers is unprecedented and there was no Manning equivalent, i.e., someone subjected to unimaginably cruel treatment to intimidate and dissuade others.
Not “as abusive”. The prior administration didn’t adopt a legal doctrine that says all leaks aid the enemy and must be prosecuted as espionage, nor did it treat a whistleblower in unimaginably cruel ways in order to intimidate and dissuade others.
Sorry about the double post. The RBC server seems to have the flu. My first post didn’t show up, and I posted again from a different browser.
I am not a fan of Julian Assange and I don’t know much about him. That said, since I am presently living in sweden I can’t help but have some thoughts about the circmstances surrounding his case.
Sweden’s current PM, Fredrik Reinfeldt has a working relationship with Karl Rove. Rove is a paid political advisor to Reinfeldt. How much influence Rove has is questionable but any place Rove pops up things have a way of bending to the unethical. Further I have grave doubts about the ethics and motives of anyone who would associate with Karl Rove. This association may be relevant in that Karl Rove was up to his eyeballs in the darkest horrors of the Bush administration and WikiLeaks information dumps pose a threat to keeping those secrets burried.
So now we get to the criminal charges, or rather the lack of criminal charges. Certainly the swedish justice system takes great pains to protct the rights of subjects of criminal investigations, working under strictures of confidentiality that americans would think absurd. That said it is odd that having investigated for all this time and interviewing every possible witness save the wayward subject, no charges have been forthcoming.
The complaint filed by the two ladies came about in a seeming odd way to my mind. Both women attended a talk given by Assange, happened to sit togeather in the audiance and upon comparing notes decided that they had been asaaulted. Having no expierience with date rape I must reserve judgement but it is hard for me to imagine that if I were sexually assaulted that I would need to confer with someone else or not know the fact imediately. And then there is the fact of the two victims attending the lecture of their attacker. The whole thing doesn’t pass the smell test.
Just the above irregularities call up questions of political harassment. Add to these the irregularity of the direct involvement of the national justice minister in what would normally be a low level investigation and purported involvement by one complaintant with an organization active in efforts to thwart WikiLeaks and this starts to be a stinky stew.
Julian Assange is an odd duck and has painted a target on himself perhaps foolishly by being so high profile. And he may be a serial date rapist in fact. But if the assault charges were all the swedish government wanted to investigate they could have admited the apperance of irregularities in this high profile case and bent the rules by sending investigators to GB to interview Mr. Assange. With that they could conclude their investigation and bring charges or drop the matter.
The complaint filed by the two ladies came about in a seeming odd way to my mind. Both women attended a talk given by Assange, happened to sit togeather in the audiance and upon comparing notes decided that they had been asaaulted. Having no expierience with date rape I must reserve judgement but it is hard for me to imagine that if I were sexually assaulted that I would need to confer with someone else or not know the fact imediately. And then there is the fact of the two victims attending the lecture of their attacker. The whole thing doesn’t pass the smell test.
I can’t say anything about the actual allegations, since I only know the case from the news myself, but it is absolutely normal for a rape victim to feel shame or even guilt and to not come forward without support. Up to and including pretending that nothing happened.
Also, my understanding is that they initially just went to the police to learn if Assange could be compelled to test for sexually transmitted diseases and that the police/prosecution then decided that a crime had been committed based on their description of the events.
With respect, I don’t think it is appropriate or helpful to refer to these women as victims of rape. According to the Wikipedia page for the case, the Chief Public Prosecutor in Sweden has said: “I don’t think there is reason to suspect that he has committed rape.” The Swedish charges against Assange apparently concern breaches of what might be termed “sexual etiquette†during consensual sex and that in terms of seriousness they appear to fall somewhere between an infraction and a misdemeanor. Neither woman has ever claimed to have been forcibly violated and (according to press reports) neither woman has accused Assange of anything beyond the allegations related to “sexual etiquette” described in the criminal complaint.
http://en.wikipedia.org/wiki/Assange_v_The_Swedish_Prosecution_Authority
First, I did not actually make a factual statement that they are victims of rape. In fact, I tried to avoid evaluating the allegations. I merely said that the quoted behavior is not inconsistent with them being rape victims.
Second, and with all due respect, while one can disagree with how to classify the allegations against Assange, calling unprotected sex against the express wishes of a woman while she is asleep or the alleged use of non-consensual physical violence a breach of “sexual etiquette” is something that only a man could come up with. One may obviously dispute the truthfulness of the allegations and how to classify them, including whether they rise to the level of a criminal offense, but breach of “sexual etiquette”? Give me a bloody break.
I understood you to be making a factual statement. You responded to the points made by Anomalous about the peculiarities of the complaint by one of the complainants about the week-long relationship in which the complained of sexual conduct occurred midweek by noting that: “it is absolutely normal for a rape victim to feel shame or even guilt and to not come forward without support. Up to and including pretending that nothing happened.†Since this statement about rape victims (which neither of the two complainants claims to be) follows directly after a statement about your having read news accounts of the alleged crime, the context suggests that you are passing judgment.
I also disagree just as strongly with your characterization of the allegations as you do with mine. Also, while my characterization doesn’t misstate the fact, yours does somewhat. There is absolutely no allegation by either woman that they were forced to submit sexually or felt threatened in any way. In the one case you seem to be describing, the woman says that Assange tried to undress her before she was ready, the sex was too rough and ultimately not enjoyable. She has never claimed that she was forced to have sex against her wishes or that she allowed herself to be undressed because she was afraid of Assange. Her disagreements seem to involve the timing and mechanics of an otherwise consensual encounter.
The allegations have been translated at least ten different ways and the Swedes themselves simply can’t figure out how to translate them or pinpoint where the claimed acts fall in a continuum between entirely consensual sex and rape.
I decided upon “sexual etiquette†because it seemed to be a neutral but fair description of a complaint by these women that Assange violated what they understood to be the customary code of polite behavior between lovers. I think these women are unhappy that Assange allegedly violated what I have always understood to be the politeness lovers generally seem to expect of one another. Let’s set the question of whether Sweden should criminalize this sort of thing aside for the moment. My question to you is this: What’s wrong with saying that Assange is accused of breaching a sort of “code de la politesse” or “code de l’honneur” that is implicit between most people who become lovers but apparently has been legislated in Sweden? How else would you describe the alleged conduct in non-judgmental terms?
I understood you to be making a factual statement.
I was making a factual statement about rape victims in general, not about this specific case, since I do not have access to evidence that allow me to evaluate the allegations, one way or another.
There is absolutely no allegation by either woman that they were forced to submit sexually or felt threatened in any way.
From the Guardian article above: “According to the statement, Miss A then realised he was trying to have unprotected sex with her. She told police that she had tried a number of times to reach for a condom but Assange had stopped her by holding her arms and pinning her legs.”
From the European arrest warrant (see below for the source): “On 13th – 14th August 2010, in the home of the injured party [name given] in Stockholm, Assange, by using violence, forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party’s arms and a forceful spreading of her legs whilst lying on top of her and with his body weight preventing her from moving or shifting.”
The allegations have been translated at least ten different ways and the Swedes themselves simply can’t figure out how to translate them or pinpoint where the claimed acts fall in a continuum between entirely consensual sex and rape.
That’s because criminal offenses may indeed sometimes be difficult to classify? Criminal law is replete with difficult to classify cases that fall in gray areas between multiple types of offenses, especially if one or more elements of the greater offense is difficult to prove. Note that the English courts did find that the allegations would constitute crimes under the Sexual Offences Act 2003 (a requirement for extradition) and did not have any problems ascertaining that.
If you are interested, you can find the charges on which Assange is to be extradited in this document. They are listed on page 21, followed by the judge’s analysis under English law. The English court found the first allegation to constitute sexual assault and the fourth allegation to constitute rape under English law (if proven).
You can also find an English translation of the Swedish penal code here (the English translation is not idiomatic, but the meaning is mostly clear). Chapter 6, section 2 and section 3 are particularly relevant.
Again, I stress that these are unproven allegations that may also be difficult to prove. But I see no reason to doubt that, if they are proven, they will constitute crimes both under Swedish and British law.
“Miss W told police that though they started to have sex, Assange had not wanted to wear a condom, and she had moved away because she had not wanted unprotected sex. … She had awoken to find him having sex with her, she said, but when she asked whether he was wearing a condom he said no.”
Having sex with someone who is unconscious when you don’t have a reasonable expectation of them consenting to this is already rape. But here we’re talking about an act that she had explicitly *not* consented to.
But I guess without threats of violence this would not be a case of “legitimate rape”, eh?
The distinction between a con man and an entrepreneur is a fine one-and is sometimes nonexistent. I can believe that Assange is both.
You really are a piece of work, Humphreys: “In fairness to all his dupes, Assange clearly is a talented con man”
Anyone who disagrees with you about anything is either a fool or a knave, is that it?
Not “or.” Foolishness and knaverybare not mutually exclusive. See, e.g., Julian Assange.
You and Humphreys obviously dislike Assange but, really, so what? Neither of you specifies why you think Assange belongs in the categories of fool, knave, con man and so forth. Since it isn’t particularly self-evident that Assange actually is any of those things, I would think it incumbent upon you and Humphreys to explain why you think Assange to be a fool, knave or confidence trickster. More specifically, Humphreys claim that Assange has somehow cheated contributors out of money seem astonishingly inane, particularly since that only “victim” he cites isn’t complaining about the money but apparently that the circus surrounding Assange’s effort to avoid extradition to Sweden is a distraction from the important work of exposing wrongdoing.
In that context, I think Anomalous and Brett both make good responses to Jemima Khan by pointing out the the Swedish case has many problems which give credence to the suspicion that Swedes are acting as stalking horses for the Americans. As Brett points out, if the UK and Swedish governments genuinely cared about the criminal case they could simply give Assange and his supporters the reasonable assurances they desire that Assange would not be sent to the United States for torture and imprisonment for life based on a trial in front of a kangaroo court. If the treatment of Bradley Manning is any indication of what awaits Assange in this country, I don’t begrudge the man either the circus or the fight to the bitter end—and I bet that if either you or Humphreys were facing that kind of a horrible situation, you do anything you could to avoid being sent for trial in this country, too.
If you’ve got something besides childish name calling, let’s hear it.
Neither of you specifies why you think Assange belongs in the categories of fool, knave, con man and so forth.
We could start with the fact that Assange signed a contract with Canongate Books to write an autobiography, received money for it (reportedly £325,000), then did not actually write a single word for it and canceled the contract without paying back the money. While Assange claims that the money had been used against his wishes for his legal defense, that, even if true, still does not absolve him of his contractual obligations.
Or, of course, the money his supporters now have to pay for him skipping bail. Which they fronted based on his assurance that he would not do that.
The sureties do not seem to consider themselves to have been “conned†by Assange. To the contrary, they seem uniformly to have supported his decision to take refuge in the Ecuadorian embassy even knowing that the consequence might be financially ruinous. Vaughan Smith, the spokesman for the sureties said in the Manchester Guardian article to which you linked that the sureties “could not ignore the perceived risk that if Assange was extradited to Sweden he could end up in a US prison “under unjust conditions” and that to have urged Assange to give himself up would “render us mercenary and contemptible individuals of great weakness of character”.
Similarly, the dispute with the publisher seems to have been more complicated than you suggest and probably does not represent a moral failing, as you imply. Apparently Assange did produce a manuscript that was published but sold very poorly earning less than the advance. The publisher says that Assange was therefore contractually obligated to repay the advance. Assange says that he was not. I have no way of know how blame should be apportioned but really a garden variety dispute between an author and a publisher in no way supports the amount of opprobrium that you have heaped upon Assange.
Again, I have no brief for Assange but there seems to be every reason for him to resist extradition to Sweden as desperately as a Jew might fear return to Nazi Germany or a political dissident to Stalin’s USSR. As a result, I’m prepared to cut the poor man some slack. I wonder whether you would act differently if you were faced with being sent to a country where you would be brutalized for years until your captors decided that you have been broken sufficiently for a show trial before your inevitable life sentence? I think that also a very fair question for Jemima Khan.
Again, I have no brief for Assange but there seems to be every reason for him to resist extradition to Sweden as desperately as a Jew might fear return to Nazi Germany or a political dissident to Stalin’s USSR. As a result, I’m prepared to cut the poor man some slack. I wonder whether you would act differently if you were faced with being sent to a country where you would be brutalized for years until your captors decided that you have been broken sufficiently for a show trial before your inevitable life sentence? I think that also a very fair question for Jemima Khan.
Since I don’t think you mean that Sweden would brutalize him to break him for a show trial with an inevitable life sentence (given that sexual offences in Sweden that don’t involve homicide don’t carry one, and the maximum sentence for rape is six years), I suspect that you are referring to his proclaimed fears to be extradited to the United States from Sweden.
If that is indeed the case, you are mistaken.
If extradited to Sweden, Assange will be protected by the so-called doctrine of specialty, which serves as a protection against extradition under a pretext. Briefly, if the UK grants an extradition request to Sweden, Sweden cannot detain or prosecute him for crimes not named in the extradition request or extradite him to a third country without first obtaining consent from the UK under the exact same conditions that would be required for an extradition from the UK to that third country.
As the extradition court explained:
In short, Assange would be at lower risk to be extradited to the United States after having been extradited to Sweden than while on British territory; even more so since because of the dual criminality principle, any crime for which he were to be extradited would have to be a crime not only in the United States, but in both Sweden and England. Of course, as long as Ecuador, that stronghold of human rights (ahem), is willing to put with him, he is even safer there, though his credibility may take some more damage in the process.
Oh, my! An author was given an advance and squandered it without submitting a manuscript. I’ve never, ever, heard of such a thing.
The point was to establish that Assange can be accurately described as a con man. Taking money for a promise that you do not plan to deliver on is typical con artist behavior.
Arrogance is not a indication of evil; it’s merely an indication of bad manners. Assange was the publisher of WikiLeaks, which published submissions of secret information, news leaks and classified media from anonymous news sources and whistleblowers. This was mostly illegal, and arguably very harmful to the governments involved, but he’s not a “con-man”; he actually WAS the publisher of WikiLeaks, and that organization had a real impact. The fact that he might be a “bad person” personally, or even a rapist, has nothing to do with his publication of information people wanted to hidden from the public.
Keith,
I’m not really understanding either the point you’re trying to make or the basis for the sneering tone of your post. If you can clarify, I wish you would but, for the moment, I’ll rely on Brett who is, remarkably, making far more sense than you.
Your sneering insinuation about Brett suggests you’re thinking about the wrong Brett. Unless you’ve got some history with this Brett I’m unaware of.
Like many who comment or post on this blog, I do have substantial history with Brett. I do not need to insinuate that Brett is generally wrong because expressed that view many times and I have strongly criticized him on the many occasions when we have found ourselves on opposing sides of an issue. It is hardly a secret that I think Brett is rarely on the right or even rational side of an issue. Our recent very strong disagreements on gun control should have made that clear.
I do not think I have ever before said unreservedly that Brett was right about something but I do so now because his analysis was extremely cogent. I also note that nobody has been willing or able to deny or refute the simple, yet cogent point he made about Assange and extradition to the United States.
Ah!! The penny drops a bit late. My apologies to both you and this potentially other Brett, who wrote so cogently.
I mostly agree — except that you seem to overlook the sentinel effect. Everyome owning a cellphone that takes pix and/or movies these days probably inhibits cops from giving random black men sidewalk beat-downs. That Berkeley cop pepper-spraying the sitting protesters would have been a he-said/she-said event ten or fifteen years ago, but all one need do now is click and tweet, and that jerk’s in the national spotlight. While the Woodwards and Bernsteins have largely been purged from our corporate media, bloggers and tweeters have filled in to serve as the reserve forces in demonstrating wrong-doing and demanding accountability. The fact some guy prone to road rage knows that the passenger in that car that cut him off could snap a photo or vid of him and his car and send it to her local police means that he does not retaliate as he might have otherwise.
So, in your Northern Ireland example: would the need for secrecy have been so acute had the public already known all of the sub-contexts, due to a more diligent press and earlier transparency (or leaks)among the various players? Sure, there are some cases where the need for secrecy is more cut-and-dry: take the Palestinian atomic bomb threat in Boston during the Ford administration — they really needed to keep alid on it once they determined that only a tiny fraction of the populace would get out in time, and that the panic over a hoax might kill more people than the bomb itself. Or sure, the hidden hide-outs of elderly masterminds, if extrajudicial executions are your bag.
But I bet in the vast majority of cases you or Langley/Foggy Bottom might cite, there would have been no need for secrecy had there been ongoing honesty — the secrecy was only required to keep past lies unexamined. So, on an ongoing basis, the sentinel effect of the WikiLeaks principle might encourage governments and large organizations to lie a bit less, conceal a bit less, and accept the consequences of their decisions — as opposed to tailspinning into panic mode at prospects of the cat getting out of the bag. If hacking and phone-cams and whistle-blowing can provide a stronger sentinel effect, then the cat doesn’t have been in the bag to begin with.
“That Berkeley cop pepper-spraying the sitting protesters”
That was at Davis. Our cops just hit people.
There is not much serious evidence that any interests of the US or UK have been damaged, except by embarrassment by having lies exposed. Wikileaks has been scrupulous about not disclosing information about individuals who might be put in danger by the disclosure.
Obviously someone who would run an outfit like Wikileaks has a pretty high opinion of his own moral judgment compared to that of big governments, but has he been proved wrong on that point? And the treatment he’s been threatened with would ratchet up almost anybody’s paranoia. Given what the US has done to Bradley Manning, with or mainly without legal justification, who provided one big dump of information to Wikileaks but not by far all it has published, imagine what they would like to do to the mastermind, and imagine after the history of the past dozen years whether any shred of the rule of law would stop them from doing it.
@Nick,
Yours would have been a more cutting riposte were it not for the fact that neither the women nor the Swedish prosecutor are alleging rape by Assange but rather that he either mislead his partner or refused to use a condom or deliberately damaged a condom during one or more acts of entirely consensual sexual intercourse.
As to Assange’s expectations, presumably he expected the women to consent to having sex with him as she apparently did. I can’t judge the reasonableness of his expectation because I don’t the anything about these people, their relationships and their sexual history together. Clearly, the situation is a complicated one, as is to be expected with human relationships and especially those involving sex.
It seems equally clear that there some peculiar aspects to this affair that cannot be so easily dismissed given the political context. Obviously, this is going to be the kind of case that’s difficult to sort out under the best of circumstances but is made far more difficult by the political overtones that permeate the whole affair. Somehow I don’t think the governments of the United Kingdom and Sweden would even be pursuing the matter if it weren’t for Assange’s role in the Wikileaks case and, I believe, for their desire to send Assange to the United States where he will almost certainly be horribly mistreated and either imprisoned for life or executed.
Yours would have been a more cutting riposte were it not for the fact that neither the women nor the Swedish prosecutor are alleging rape by Assange but rather that he either mislead his partner or refused to use a condom or deliberately damaged a condom during one or more acts of entirely consensual sexual intercourse.
The point is that consent to one sexual act does not constitute or imply consent to any and all future sexual acts of all kinds. As an extreme example, consent to regular sex does not constitute or imply consent to BDSM practices.
In this specific case, consent to protected sex does not constitute or imply consent to unprotected sex, especially since the woman in question expressly withheld consent to unprotected sex.
You may not realize this, but the risk of pregnancy is kinda a big deal for women.
Also, the Swedish prosecution is most definitely alleging rape. From the extradition request:
The judge further explained with respect to allegation 4:
The High Court upheld that analysis:in Julian Assange v Swedish Prosecution Authority. Specifically, in paragraph 153:
Mitch, I doubt the originator of the phrase “legitimate rape” found any of criticisms of him to be very cutting either. Like him, you obviously don’t know what rape is.
Nick wrote: Like him, you obviously don’t know what rape is.
That is one possible explanation for why people would try to minimize Assange’s behavior toward women. The other is that if the Akin and Assange cases were reversed, some people who were loudly outraged at the former and are making excuses about the latter would switch positions. To your great credit (and Katja’s) you are holding someone to a moral standard of behavior irrespective of which “team” he is supposedly on. But not everyone is so principled.
KH,
Assange’s morals, or lack of them, aside for the moment. What is your opinion of Wikileaks and the public dumping of all that classified information? Thanks.
The RBC posts at the time were good on WikiLeaks, I thought.
Here is Mark https://thesamefacts.com/2010/11/uncategorized/of-wikileaks-and-the-pentagon-papers/
Here is Harold https://thesamefacts.com/2010/11/secrecy-in-government/the-wikileaker-should-serve-some-time/
Here is me https://thesamefacts.com/2010/11/secrecy-in-government/how-secret-diplomatic-communication-laid-the-groundwork-for-peace-in-ireland/
p.s. Even if I thought WikiLeaks deserved a Nobel Peace Prize, I would still want Assange to face the sexual assault accusations in court.
Your observation is remarkable coming as it does from the author of the hatchet job we’ve been discussing for the past two days. Neither of your cheap shots at me happens to be on target. I’m not minimizing Assange’s behavior toward women but rather discussing whether the Crown has satisfied the legal requirements for extradition under European and English law. A part of which discussion is necessarily whether Assange is actually charged with rape is Sweden and whether the offenses with which he is charged would qualify as parallel crimes or as rape under the Sexual Offenses Act of 2003.
Moreover, it is not “taking sides” or bad faith to address and refute false charges or to advocate that the law be applied fairly to one who stands accused of a crime. The fact that Keith Humphreys dislikes an accused or that you or Katja or Nick think the law ought to be applied differently to people they don’t like shouldn’t make any difference. The law that is written in the statues and the judicial decisions is the one that’s supposed to be applied. This may come as news to you people in Wonderland but the law isn’t supposed to be Calvinball.
I do feel very strongly that whatever the truth might be about the charges in Sweden, Assange should be forced to answer those charges if doing so likely means being sent to the United States to be brutalized and imprisoned for life after a trial in a kangaroo court. Absent that threat, the people you sneer at as being Assange’s dupes would want him to answer the charges against him and my guess is that he would have already done so but for the threat of being sent to the United States. If I was facing what was done to Bradley Manning, I’d fight like hell to stay out of Sweden. Wouldn’t you?
So, yes, that’s my side. I’m on the side that is opposed to what was done to Bradley Manning. I’m on the side that think it shouldn’t be done to Julian Assange, either. Nobody should be treated like that in a civilized society. What the hell side are you on?
By the way, Keith, for what little it may be worth, if you’d been the one to fall down the rabbit hole instead of Julian Assange, I’d be fighting just as hard to keep you out of hell, too.
In the first place and without spending the rest of the weekend litigating it, the fact that the allegations, legal theories and testimony seems to keep changing does not make me feel confident about the sincerity of the Swedish government. I appreciate that you feel the need to vindicate the rights or interests of these complainants and I would ordinarily support this but the political overtones permeate every aspect of this affair. Certainly, the fact that neither the government of Sweden nor the United Kingdom have pledged that Assange would not be extradited or be rendered to the United States by means of “self-help” or ruse lends significant credibility to the fears that these governments are in league with the Americans.
Also, I have read several analyses of the High Court decision that differ from yours and specifically criticize the analysis of paragraph 153 in that there isn’t an analogous crime in English law and Assange couldn’t be charged with any crime in England. Another criticism I’ve seen (and with which a former teacher of mine agrees) I that the specific conduct you and the judge mentioned does not constitute rape under either English or Swedish law and there is no meaningful discussion of the crime of rape under Swedish law to support the judge’s conclusion that Assange is actually being charged with the crime of rape. I’m no expert on English criminal law, especially sexual offenses, but the elements of the crime of rape do not see to be present and there was very little effort by either the UK’s lawyers or the judge to evaluate whether (assuming for purposes of the hearing that) the testimony contained in the affidavits established the elements or rape or any other crime under English law. I find the absence of such a discussion of the leading English cases to be profoundly troubling.
The one aspect of the affidavit from victim A that he consummated sexual intercourse with the alleged victim while she was asleep doesn’t match the testimony of the victim in important respects and, more importantly, is in conflict with several reported English cases which have held to the contrary where the complaining witness affirmatively acquiesces upon awakening as would appear to have occurred in the instant case. Again, apart from the arguable misrepresentations, the leading English cases should have been address as there are several mentioned in articles that would seem to be on point.
In any case, Assange has said that he would go to Sweden if that government and the United Kingdom would provide assurances that he would be returned to either England or another country which would give him protection from extradition to the United States. I have no idea whether Assange is a good person or a rapist or a man caught up in in a situation between these two women or the victim of a honeytrap. But is it reasonable to expect him to place himself in the hands of governments which have cooperated so closely with illegal American activities such a kidnapping and torture?
Second, when I first read your response about how Assange would be protected from a being extradited based upon a pretext , I thought you were making a little joke. But you seem to be seriously suggesting that Assange should trust his life to the fair application of international law by courts in Sweden, the United Kingdom and the United States. In light of how the courts in those countries have acquitted themselves after September 11, 2001 and the invasion of Iraq, you are basically telling Assange to commit suicide.
Small children believe in Santa Claus. Academics and fools believe in the rule of law. In today’s world, only a great fool would ever place his trust in either Santa or judges.
Also, I have read several analyses of the High Court decision that differ from yours and specifically criticize the analysis of paragraph 153 in that there isn’t an analogous crime in English law and Assange couldn’t be charged with any crime in England. Another criticism I’ve seen (and with which a former teacher of mine agrees) I that the specific conduct you and the judge mentioned does not constitute rape under either English or Swedish law and there is no meaningful discussion of the crime of rape under Swedish law to support the judge’s conclusion that Assange is actually being charged with the crime of rape. I’m no expert on English criminal law, especially sexual offenses, but the elements of the crime of rape do not see to be present and there was very little effort by either the UK’s lawyers or the judge to evaluate whether (assuming for purposes of the hearing that) the testimony contained in the affidavits established the elements or rape or any other crime under English law. I find the absence of such a discussion of the leading English cases to be profoundly troubling.
The definition of rape under English law can be found in section 1 of the Sexual Offences Act 2003. What consent means is described in sections 74, 75, and 76 of the same law.
Feel free to explain to me why the alleged offense would not constitute rape under English law, according to the analyses you read. The elements of crime for rape are simple: (1) penetration with the male sexual organ and (2) absence of consent (either express consent or consent that could reasonably be believed to exist). The first element is not being argued, so it all comes down to consent.
The one aspect of the affidavit from victim A that he consummated sexual intercourse with the alleged victim while she was asleep doesn’t match the testimony of the victim in important respects and, more importantly, is in conflict with several reported English cases which have held to the contrary where the complaining witness affirmatively acquiesces upon awakening as would appear to have occurred in the instant case. Again, apart from the arguable misrepresentations, the leading English cases should have been address as there are several mentioned in articles that would seem to be on point.
Obviously, Miss W may be lying, misremembering, or there may be other problems with the evidence. But that is a matter for a trial court to decide and is separate from the evaluation of the alleged offense as a rape by the Swedish prosecutors and the English courts during extradition proceedings.
To look at the legal aspect, first of all, rape under English law is defined as in section 1 of the Sexual Offences Act above. Note that it does not require use of force or helplessness; it is solely a matter of whether the act was consensual or could be presumed to be consensual by a reasonable person. Use of force or helplessness, however, can create an evidentiary presumption of lack of consent under section 75.
In this case, W being asleep creates a presumption of lack of consent under section 75 (2)(d). Because it is a presumption, it can be rebutted. However, according to W’s testimony, she had also told Assange that she did not want unprotected sex (and given that her strong aversion to unprotected sex is backed up by other independent evidence, such as her ex-boyfriend’s testimony that she considered sex without a condom “unthinkable”), making it very difficult to rebut.
Assange’s claim that she did not resist his continuing ministrations after waking up does not in and of itself constitute consent; it may, as the High Court put it, be either consent or reluctant submission (after being presented with a fait accompli); however, that is not important for the classification of the offense as rape, because it does not retroactively rebut the presumption of lack of consent for the part of the act prior to her waking up; based on her prior refusal to have unprotected sex Assange could not reasonably believe that she consented to unprotected sex, and due to being asleep she was unable to express consent. (You can find a more detailed analysis in paragraphs 120-126 of the High Court’s decision.)
If you do not believe me, Felicity Gerry, an English barrister who is an expert in rape cases and who is the co-author of the “Sexual Offences Handbook”, has written pretty much the same on stretlaw.com regarding “sleep rape” (the blog software doesn’t allow me to link it, but it should be easy to google). Obviously, it is possible that not only does she not understand the law, but neither does the Chief Magistrate of England and Wales (who held the extradition hearing) nor the Queen’s Bench Division of the High Court of Justice. However, may I suggest that maybe it is more likely that it isn’t them but you?
[On an unrelated note, I am not a big fan of the Sexual Offences Act 2003. The definition of rape spans what would be a broad spectrum of sexual offenses in other jurisdictions and has an extreme range of punishment, up to a life sentence. This leaves entirely too much at the discretion of the courts in the case of a criminal trial. But in an extradition case, the only question is whether the act was a criminal offense, so these concerns don’t apply, since Assange won’t actually be tried under English law, and the alleged offense constitutes a criminal offense pretty much universally in EU member states, whether it is rape, sexual exploitation, sexual coercion, or something else.]
Second, when I first read your response about how Assange would be protected from a being extradited based upon a pretext , I thought you were making a little joke. But you seem to be seriously suggesting that Assange should trust his life to the fair application of international law by courts in Sweden, the United Kingdom and the United States. In light of how the courts in those countries have acquitted themselves after September 11, 2001 and the invasion of Iraq, you are basically telling Assange to commit suicide.
I did not say that Assange should trust his life in the fair application of international law. What I have been saying is that extradition to Sweden does not worsen his situation with respect to extradition one bit compared to being in the UK; in fact, it improves it, because it makes it harder for the United States to have Assange extradited. While in England, only the UK has to agree to extradition; after an extradition to Sweden, both the UK and Sweden have to agree to it (and in both cases, that decision is subject to judicial review). That makes it harder, not easier for the United States to have him extradited; nowhere did I say that it makes it impossible.
Small children believe in Santa Claus. Academics and fools believe in the rule of law. In today’s world, only a great fool would ever place his trust in either Santa or judges.
It is one thing to not blindly trust the fairness of any given court of law; history has seen plenty of miscarriages of justice. And disputing the fairness of any particular judicial proceeding or court is a normal part of the democratic process, assuming such a claim can be substantiated in some way. However, assuming that both the British and the Swedish judiciary are wholly owned subsidiaries of the US federal government rises to the level of a conspiracy theory.
Nick,
I’ve spent enough time with the victims of some horrific rapes to have a reasonably well formed idea of what rape is. Apart from the cheap shot, did you have some point you were trying to make? Maybe we could talk about that.
Okay, sure: if a woman specifically does not consent to a particular sex act, then performing that act on her while she is goddamn unconscious is rape.
The fact that you have trouble understanding this is completely astounding to me and very disturbing.
The New York Times’s paywall is laughably easy to circumvent and has been since it was erected.