A British court has ruled against Julian Assange in his bid to avoid extradition to Sweden to face rape and sexual molestation charges against two women.
The two judges ruled on a variety of technical and jurisdictional issues, but the meat of their ruling addressed two questions: whether the complaints against Assange accurately described the behaviors alleged, and whether such acts, if proven, constituted criminal offenses in the jurisdiction in which they occurred.
Rejecting the Assange legal team’s attempt to portray his alleged actions as “disrespectful” or “disturbing” but not criminal, the judges declared (PDF) that the behavior described in each of the charges was criminal under the laws of England and Wales:
The first complaint described a situation in which Assange held down the arms of the woman known as AA, preventing her from reaching a condom as he attempted to pry her legs open with his own legs in order to penetrate her vaginally. AA’s subsequent consent to intercourse after he had agreed to put on a condom, they found, did not render Assange’s alleged initial use of force against her lawful.
With regard to the second complaint, Assange’s lawyers contended that it is not illegal under English law to penetrate a partner without a condom in circumstances in which she has only consented to sex if a condom is used. The court ruled that such deception would be a criminal act in England, given that AA’s complaint alleged that Assange intentionally sabotaged the condom he was using while they were having intercourse.
In the third complaint, AA alleged that Assange rubbed his erect naked penis against her body while they were sharing a bed under non-sexual circumstances. The judges ruled that AA’s consent to sleep in the same bed as Assange “was not a consent to him removing his clothes from the lower part of his body and deliberately pressing that part and his erect penis against her.”
Finally, in the case of the fourth complaint, the judges rejected the Assange lawyers’ contention that the behavior described would not constitute rape under English law. Under that law, they found, the behavior alleged constituted rape in two separate ways: First, that Assange is said to have penetrated SW without a condom when she had only consented to intercourse if a condom was present, and second that he penetrated her while she slept. “It is difficult to see,” they said, “how a person could reasonably have believed in consent if the complainant alleges a state of sleep or half sleep,” and “there is nothing in the statement from which it could be inferred that he reasonably expected that she would have consented to sex without a condom.”
One important note as to that last charge. Assange’s attorneys contended that SW’s consent to the continuation of unprotected intercourse after she awoke to find Assange penetrating her rendered the entire encounter consensual. The judges rejected that argument, declaring that “the fact that she allowed it to continue once she was aware of what was happening cannot go to his state of mind or its reasonableness when he initially penetrated her.” It was his alleged initial penetration, they ruled, that constituted rape, and consent to non-consensual intercourse cannot be obtained retroactively.
Today’s ruling is not Assange’s final appeal, and it is not a finding of fact by the court. But it is a wholesale rejection of the Assange legal team’s contention that the behavior alleged, even if proven, would not be unlawful in England. As such, it stands as a powerful endorsement of a robust and common-sensical approach to the question of consent in the law of rape and sexual assault.