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Wednesday Update | A representative of the Swedish prosecution team is forcefully rebutting the Assange defense’s definition of consent in today’s hearing. Click here for ongoing coverage.
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Wikileaks founder Julian Assange is in a London court today, contesting an order that he be extradited to Sweden to face allegations that he raped two women there last year.
Assange’s attorneys are contending that the extradition order is invalid because the actions alleged are not criminal under English law. In doing so, they appear to be conceding the sincerity of at least some of those allegations. “Nothing I say,” Assange lawyer Ben Emmerson told the court this morning, “should be taken as denigrating the complainants” or to “trivialize their experience.” His arguments should not be construed as disputing that they honestly consider Assange’s behavior “disrespectful” or “disturbing,” he said, or that Assange “push[ed] at the boundaries of what they felt comfortable with.”
Emmerson went on to provide accounts of the two encounters in question which granted — for the purposes of today’s hearing — the validity of Assange’s accusers’ central claims. He described Assange as penetrating one woman while she slept without a condom, in defiance of her previously expressed wishes, before arguing that because she subsequently “consented to … continuation” of the act of intercourse, the incident as a whole must be taken as consensual.
In the other incident, in which Assange is alleged to have held a woman down against her will during a sexual encounter, Emmerson provided this summary of the allegations: “[The complainant] was lying on her back and Assange was on top of her … [she] felt that Assange wanted to insert his penis into her vagina directly, which she did not want since he was not wearing a condom … she therefore tried to turn her hips and squeeze her legs together in order to avoid a penetration … [she] tried several times to reach for a condom, which Assange had stopped her from doing by holding her arms and bending her legs open and trying to penetrate her with his penis without using a condom. [She] says that she felt about to cry since she was held down and could not reach a condom and felt this could end badly.”
As in the case of the first incident, Emmerson argues that subsequent consent renders the entire encounter consensual, and legal.
While Emmerson was not vouching for the accuracy of these accounts but merely offering them as summaries of the charges against his client, his introductory statement, excerpted above, was striking in its tone and approach:
“Nothing I say should be taken as denigrating the complainants, the genuineness of their feelings of regret, to trivialise their experience or to challenge whether they felt Assange’s conduct was disrespectful, discourteous, disturbing or even pushing at the boundaries of what they felt comfortable with.”
At a minimum, such language would seem to preclude two of the defenses that have previously been offered by Assange defenders — that the complainants were merely spurned lovers or government plants concocting fantastical stories for their own purposes.
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Selected previous Assange coverage:
- Guilt, Innocence, and Justice in the Julian Assange Case
- Assange Accuser’s Only Interview Mostly Ignored By US/UK Media
- First Thoughts on Naomi Wolf’s BBC Interview
- Why Naming Names is a Problem Even When the Names Have Been Named
- Naomi Wolf Still Peddling Falsehoods About Assange Assault Case
Note | This post has been edited to further clarify the distinction between Emmerson’s own descriptions of Assange’s behavior and his summaries of the allegations against his client. The core arguments of the piece remain unchanged.
So Michele Bachmann has signed a pledge to support families that’s got some very creepy stuff in it. In particular, there’s this:
“Slavery had a disastrous impact on African-American families, yet sadly a child born into slavery in 1860 was more likely to be raised by his mother and father in a two-parent household than was an African-American baby born after the election of the USA’s first African-American President.”
Others have noted just how brain-curdlingly offensive this is, and I agree 100% with what they’ve written. But I want to pause for a second and look at the numbers behind the claim.
The pledge cites an invalid source — the 1880 census doesn’t have great data on slave family structures, it turns out — but the standard estimate for the number of slave families broken up by the sale of children away from one or both parents is about one in three. With life expectancy so much lower in the 19th century than it is today, I’d guess that about half of all slave families in the antebellum US were ones in which children were living with both of their parents.
And yes, the percentage of two-parent households in the black community today is a little lower than that.
But again, let’s pause for a second. Contrary to stereotypes, most African American fathers who don’t live with their kids are involved with them on a regular basis. Almost half see their kids or speak to them by phone at least once a week, and fully two-thirds spend face-to-face time with them at least once a month. (This percentage, by the way, is significantly higher than the analogous stat for white fathers who don’t live with their kids: 67% vs 59%.)
So when you compare slave families to black families today and wring your hands about the decline in the two-parent household, you’re not just ignoring the fact that slave children lived in “households” where their white master, not their own parents, had final authority over them. You’re not just ignoring the fact that many of them saw their parents savagely beaten and their mothers repeatedly raped. You’re not just ignoring the fact that their parents were in many cases prohibited by law from reading them a bedtime story. You’re not just ignoring all that.
You’re also saying that a family destroyed by the sale of its children is functionally identical to one in which the kids sleep at their mom’s most nights but have a bedroom in their father’s place, cereal in his cupboard, and drawings taped to his walls.
You’re saying, not to put too fine a point on it, that my ex-wife and I, by amicably separating and choosing to raise our children together while living apart, behaved comparably to the slaveowner who tore a toddler screaming from her mother’s arms and sold her away forever, permanently severing the bond between parent and child.
That’s what you’re saying. And it’s an repulsive insult to every parent in America.
Update: Santorum signed the pledge too. And Pawlenty is apparently considering it.
This morning’s New York Times story on the Dominique Strauss-Kahn rape investigation declared that the case was collapsing due to “major holes in the credibility of the housekeeper who charged that he attacked her.” That article, however, contained no allegations that the complainant had lied about the attack itself. Instead, the paper claimed that prosecutors had found inconsistencies in her asylum application and evidence that she had engaged in (and attempted to cover up) shady financial dealings prior to the incident. In the wake of the publication of the Times piece, many — myself included — have argued that such alleged misrepresentations had no bearing on the question of whether she had given an accurate account of her encounter with Strauss-Kahn.
Now, however, in a letter to DSK’s lawyers, the District Attorney’s office contends that the accuser lied to them about the immediate aftermath of the incident itself.
In conversations with detectives and prosecutors, they say, as well as in her grand jury testimony, DSK’s accuser repeatedly declared that she fled to a nearby hallway after leaving his suite (Suite 2806), remaining there until she encountered her supervisor, to whom she reported the assault. “The complainant has since admitted,” the DA’s office says, “that this account was false and that after the incident in Suite 2806, she proceeded to clean a nearby room and then returned to Suite 2806 and began to clean that suite before she reported the incident.”
Such misrepresentations do not themselves prove that DSK’s accuser was not attacked. As I’ve noted before, a woman who has been “raped in circumstances in which her judgment may be called into question … can expect to be disbelieved, shamed, and attacked, and that expectation may lead a rape survivor to alter her story to make it more palatable to police, or to a jury, or even to her friends and family.”
That said, though, this latest allegation is of a very different character than those the paper reported earlier. The Times bungled the story, and in doing so seriously misrepresented the state of the case.
Jesse Cheng announced on Monday that he would be stepping down as Student Regent of the University of California system. The announcement came just days before the final Regents meeting of his term.
The student conduct office at UC Irvine, Cheng’s home campus, ruled in March that Cheng had sexually assaulted a former girlfriend the previous fall. He appealed the finding, stepping down only after his appeal was rejected. (Cheng had admitted to sexual assault in an email to the woman, but later claimed that the confession was false, and written under pressure from his accuser. He was arrested in connection with the incident a few weeks after it allegedly occurred, but released without charges.)
In an era in which the University of California has pursued student activists with the aggressive use of both criminal and campus judicial sanctions, the mild treatment of Cheng — who, though he now denies any wrongdoing, both admitted to and was found guilty of sexual assault — stands out. In particular, it contrasts dramatically with how the university and local prosecutors have treated the “Irvine 11,” a group of students who are currently facing trial for allegedly disrupting a campus speech by the Israeli ambassador to the US.
I’ll admit that I’m ambivalent about the charges against Jesse Cheng. I know Jesse, and I’d like to believe that he’s not capable of what he’s been accused of. But whatever my personal thoughts on his case, the fact is that he was found by a student conduct board to have committed a sexual assault, and given his confession, it’s difficult to argue that the board’s conclusion was egregiously in error.
That Cheng received probation, and was allowed to keep his seat on the UC Regents until he himself chose to give it up, while the Irvine 11 saw the student organization to which they belong suspended and now each face the possibility of six months in jail? That’s not right. That’s not proportionate. That’s not legitimate.
And that disproportion, that illegitimacy, casts the whole University of California judicial system, as well as the UC’s relationship with law enforcement, into question.
Update | Read this post from Reclaim UC for more on the university’s recent history of bungling sexual assault charges. Seriously. Go read it.
“The job of an actor is to play a role. The job of a cheerleader is to cheer.”
— Eugene Volokh on Doe v. Silsbee Independent School District
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The Doe case, as most of my readers probably know, involves a high school cheerleader in Texas, identified in court papers as “HS,” who was kicked off her squad for refusing to cheer for her alleged rapist. She had accused the player a few months earlier, but he had remained on the school basketball team. It was school tradition for the cheerleading squad to cheer from the sidelines when players attempted foul shots, but HS refused in the case of this player — standing silently with her arms crossed. After a warning, she was removed from the squad. (The player in question pled guilty to an assault charge some time afterward.)
HS sued the school for taking her off the squad, and lost. She appealed, and lost again. Last week her final appeal was rejected.
Eugene Volokh, a constitutional lawyer I respect, thinks the courts got this one right. If this lawsuit had prevailed, he says, “cheerleaders would be free to refuse to cheer for any reason that they think sufficient.” They could refuse to cheer for teams with gay or undocumented immigrant players, or those who “belong to a reprehensible religion, or refuse to properly support our military.”
I think HS was right to refuse to cheer her attacker, and I think the school was deeply wrong in how it handled the case. (For one blogger’s assessment of just how wrong they were, read this.) Whether by dropping her assailant from the team or suspending the practice of sideline cheers or just letting her sit those particular cheers out, the school should have found a way to accommodate HS’s reasonable desire not to cheer the name of a person who had recently sexually assaulted her.
But they didn’t. And given that they didn’t, I think the courts did the only thing they could. I just don’t see a way to craft a rule that would allow HS to refuse to cheer that wouldn’t also protect a cheerleader who shouted “slut” at a single mother on an opposing team, or an actor who changed the lines of a school play to give it a particular religious message, or a football player who wrote “I HATE FAGS” on his jersey, big enough to be seen from the stands.
It’s possible, as some commenters at Volokh’s blog suggest, that HS might have had other legal remedies. It’s been suggested that she might have had — and might still have — grounds for a lawsuit on equal protection claim, or for infliction of emotional distress. I’m not in a position to evaluate those suggestions. But as a matter of First Amendment law, I think the courts got this one right.
By the way, one other element of this case is worth mentioning — that the appeals court ruled HS’s lawsuit “frivolous,” and ordered her family to pay $45,000 in legal fees to the school district. It’s my understanding that the district has the option of waiving the collection of that judgment, and I hope they do so.
Update | The ACS Blog reaches a different First Amendment conclusion than I did, and it does so by addressing a question Volokh took as a given — whether cheerleaders are “agents” of the school, and speaking on the school’s behalf when they perform as cheerleaders. Their position is that so long as a cheerleader’s symbolic protest doesn’t substantially disrupt the school’s functioning, it’s protected speech.
I’m going to have to chew on this one. It’s not obvious to me that students have a blanket First Amendment right to Sharpie messages onto their uniforms while cheering or playing sports, or to shout obnoxious comments at opposing teams while on the field. I’m attracted to the pro-speech side of the argument — as always — but I’m not sure where I come down on this particular issue.
What do y’all think?
studentactivism.net 
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