Julian Assange, founder of Wikileaks, is back in court for a second day today, appealing an order that he be extradited to Sweden to face questioning on rape charges. As I noted yesterday, his defense team has shifted tactics in this latest round of argument, and they now claim that the charges against Assange, even if proven, don’t amount to rape. However “disturbing” or “disrespectful” his actions may have been, they say, however much he “push[ed] at the boundaries” of the complainants’ wishes, the two women ultimately consented to the acts in question.
Today Clare Montgomery, a representative of the Swedish prosecutors, is rebutting those arguments, and she’s pushing back hard.
The fact that the two women eventually acquiesced to advances they had originally rejected, Montgomery argues, is evidence not of consent but of coercion. In their statements to police, she says, the complainants describe “circumstances in which … they were coerced by physical force or were trapped.” In two cases — one in which Assange is alleged to have ripped a condom, and another in which he is accused of penetrating a complainant without a condom while she slept — “the complaint is unprotected sexual intercourse where consent had only been given to protected intercourse.” In the latter of these instances, she notes, “nobody suggests she was positively consenting.”
What is at stake here is the fundamental question of what constitutes consent in a sexual encounter. Yesterday Assange’s attorneys suggested that an encounter that begins non-consensually may become consensual if the passive party eventually agrees to the other’s advances, while today Clare Montgomery is arguing that such grudging consent is no consent at all.
The two complainants “let him continue,” she said this morning, but that did not make his actions legal. In fact, that construction is itself evidence of coercion, and thus of rape. “This is non-consensual,” she argued. “It is coerced, and the words used — ‘I let him’ — means non-consent.”
The hearing has just resumed for the afternoon session. More later if events warrant.
Update | More from Clare Montgomery on the incident in which Assange is alleged to have penetrated a complainant while she slept:
“The evidence is absolutely clear that this complainant may be legitimately described as given evidence that she had been penetrated whilst asleep. Furthermore, being penetrated in a way which [it] is absolutely clear … she had not consented to, namely unprotected. It is doubly clear there is no consent. She may later have acquiesced. That didn’t make the initial penetration anything other than an act of rape.”
Montgomery went on to say that the complainant had, by her own account, been “shocked and paralyzed” when she realized what Assange was doing, in part because she had never had unprotected sex before in her life.
Second Update | Montgomery has accused Assange attorney Ben Emmerson of “winding the law of consent back to the 19th century” with yesterday’s arguments.