While a relentless attack against Wikileaks has drawn considerable interest and attention to the difficulties facing whistleblowers, the recent discussion over the rape charges against Wikileaks founder Julian Assange have exposed something else:
regressive Canadian and American rape laws.
A number of bloggers and writers have sparked off a fierce debate around the differences between what exactly constitutes rape in Sweden vs. North America.
Withdrawal of consent should be grounds for a rape charge (and it is, in Sweden) — if you consent to having sex with someone and part of the way through you say to stop and the person you’re having sex with continues to have sex with you against your wishes, that’s rape. That may not sound entirely familiar to Americans, since the United States has relatively regressive rape laws; in most states, there’s a requirement of force in order to prove rape, rather than just demonstrating lack of consent. Consent is more often used as a defense to a rape charge, and it’s hard to convict someone of rape based solely on non-consent. Some states, like New York, have rape laws on the books which include “no means no” provisions for intercourse — basically, if a reasonable person would have understood that the sex was not consensual, then that’s rape. It seems obvious enough, but those laws are not used nearly as often as forcible-rape laws; they aren’t on the books in many states, and they’re difficult to enforce even where they are.
In addition other writers have pointed out the unholy alliances being organically created between those quick to defend Assange by condemning his accusers and misogynists who feel that the charges against Assange do not actually amount to rape.
Libby Brooks of the Guardian sums up the conundrum:
The veteran journalist John Pilger, who – along with filmmaker Ken Loach and charity fundraiser Jemima Khan – offered bail sureties to the court, dismissed the charges as a "political stunt". The author and activist Naomi Wolf condemned the women for "using feminist-inspired rhetoric and law to assuage what appear to be personal injured feelings". Human rights champion Bianca Jagger tweeted about one of the complainant's supposed links with the CIA. In a letter to the Guardian, the British campaigning organisation Women Against Rape queried "the unusual zeal with which Julian Assange is being pursued".
Assange's status as embattled warrior for free speech is taken as giving permission – by those on the left as well as right – to indulge in the basest slut-shaming and misogyny. It's terrifying to witness how swiftly rape orthodoxies reassert themselves: that impugning a man's sexual propriety is a political act, that sexual assault complainants are prone to a level of mendacity others are not (and, in this case, deserving of the same crowd-sourced scrutiny afforded leaked diplomatic cables), that not all forms of non-consensual sex count as "rape-rape".
Brooks acknowledges the tricky part of the matter: the shady-timing of the Wikileaks charges are being mixed up and fused with the validity of progressive sexual assault laws in general.
Discussions of rape aside, facts of the case are all over the map.
The lawyer for the two women has stead-fastidly come to their defense, claiming the women are being treated not as "victims of a crime" but as "perpetrators".
Claes Borgstrom, a well-known Swedish lawyer with 30 years experience, spoke at length in the Guardian about the facts surrounding Assnage's charges and the persecution of his accusers.
"What is going on now is very, very unfair to [the women] because they are being pointed at as if they have started a conspiracy against Assange and WikiLeaks, and that is not true. There is nothing wrong with their reputation and they have done nothing wrong in going to the police. What they are going through is unfair and absurd.
"These two women were molested by Mr Julian Assange at two different times, independently of each other," he said. One of the two women, who met Assange at a lecture he gave in Stockholm in August, wanted to contact him after the alleged assault because she wanted him to take a test for sexually transmitted infections. She contacted the second woman, who had helped organise the lecture, to see if she could help her to find him. "When they spoke to each other they realised they had been through something very similar so they went to the police. That's not odd," he said.
"They decided to go to the police, to inform the police of what happened, to ask for advice; also they were interested in whether there was a risk that they could have got HIV. They were not sure whether they should make a police complaint, they wanted to have some advice. But when they told the police officer, she realised that what they were telling her was a crime and she reported that to the public prosecutor, who decided to arrest Assange."
Two days later a second prosecutor, who conducted a preliminary investigation, came to a different conclusion, judging that the evidence did not meet the criterion of a rape or sexual molestation charge. "She made another judgment, saying: 'No it's not. It's very close, but not quite,'" he claimed. "So she cancelled the arrest order and he was still suspected of molestation without sexual motives.
"When I read that decision, my own conclusion was and still is that it was a rape, so I asked for a reopening of the case, and then the investigation was reopened." There was nothing suspicious about this closing and reopening of the case, he said. "The law is not an exact science. You can always make different judgments. Different courts and different prosecutors make different decisions. I think that the prosecutor who cancelled the arrest warrant did not study the case well enough."
The fact remains that the timing of the charges against Assange and their start-stop nature have looked quite suspicious.
Assanges lawyer, Mark Stephens has a swifter take on Borgstrom's claims:
"It is quite bizarre, because the chief prosecutor in Sweden dropped the entire case against him, saying there was absolutely nothing for him to find back in September, and then a few weeks later on – after the intervention of a Swedish politician – a new prosecutor, not in Stockholm where Julian and these women had been, but in Gothenburg, began a new case which has resulted in these warrants and the Interpol Red Notice being put out."
Dave Lindoff, writing in Counterpunch, does great job being a poster-child for Brooks' criticisms. First, he raises some serious questions about the women's ties and the motive for their charges:
The woman making the allegation has a connection to a CIA-linked anti-Castro organization and a brother in Swedish intelligence who was a liason in Washington to US intelligence services, raising further questions about the whole "incident."
He then goes onto attacks the allegation of rape itself as being without merit due to the circumstances:
Swedish law, which essentially makes having sex without a condom legally form of rape, even if consensually done, is about to make that country a "laughing stock," which further shows that Ardin threw a party for Assange the day after the alleged "rape", and which also shows that both women were boasting on twitter about their "conquests" of Assange after the alleged "violations" occurred.
Counterpunch is taking flack for the CIA-ties claim first made in Counterpunch by Israel Shamir and Paul Bennett. Sandra Cuffe from the Vancouver Media Co-op, suggests that Couterpunch's fact checking and analysis may need a bit of work.
Shamir says that Anna Ardin, who alledges that Assange sexually assaulted her, published a couple articles in Swedish in some Cuba review journal. Apparently professor Michael Seltzer says the publication is a product of a "well-financed anti-Castro organization in Sweden" which in turn has links to Union Liberal Cubana, led by Carlos Alberto Montaner, who has been accused of being linked to the CIA.
That's right. She published a couple anti-Castro articles in a journal linked to an organization linked to an organization led by a guy with ties to the CIA. Oh, and in Cuba, she "interacted with" a feminist anti-Castro group that is supported by Luis Posada Carriles. The thousands of posts online about how this woman's sexual assault allegations are bogus because of her "CIA ties" come back to those indirect connections alledged by Shamir.
Shamir (another poster-child for Brooks' argument) notes that Ardin was "deported from Cuba for subversive activities". This happens of course after degrading Sweden's progressive rape laws as "conflating consensual sex with rape for political purposes."