The Julian Assange Case: Frequently Asked Questions

Photo by Ben Bryant

There’s a lot of misinformation and confusion spreading around the internet about the Julian Assange case. Myths are being spread about both the case itself and the surrounding law. Some of this is natural, given that the stage the investigation has reached. Some is also borne out of the desire to see a popular hero exonerated. I’m hoping here to shed a little light on what is going on.

This is an attempt to keep on top of the main themes emerging in the press coverage and commentary on the case. It has been quite hard to get definitive answers on some points as the search engines are now clogged up with hundreds of conspiracy theory posts. Consequently some of this is subject to correction. If new questions emerge, I’ll try to update this list. Similarly, if I’ve got things wrong, please tell me in the comments and I’ll endeavour to set things right.

Please suggest new questions or issues in the comments to this post.

Please note that I will not name the complainants. They have a legal right to anonymity and this blog will not breach it.

Disclosure

In the interests of transparency, I should make it clear that I am not a fan of Julian Assange. I support the idea of providing secure online platforms to facilitate whistleblowing, and used to support Wikileaks. However, I share the concerns of those who have subsequently left the organisation that Assange’s style is autocratic and opaque, pursuing a political agenda distinct from the worthwhile project of supporting and protecting whistleblowers. I am cautiously optimistic about OpenLeaks (more info here). Make of that what you will. I don’t have an opinion on whether or not he is guilty of the offences. We simply don’t know.

Background: Sexual Offences

There are a lot of popular misconceptions about sexual offences. They are crimes we’d rather not think about, touching on taboos and prejudices. Rape in particular is a difficult offence to prosecute. Although the conviction rate at trial is not particularly low (it’s about what you’d expect for an offence triable only in the Crown Court), it has an extremely low clear-up rate (the rate of cases reported that conclude in a conviction). The perceived stigma of being raped, and the potential trauma of an investigation and trial can be highly off-putting and results in cases being dropped. Just look at the case of the woman who was imprisoned for falsely retracting a rape confession, and the CPS’s response, to see the sort of pressures that can apply to a rape victim and the attendant difficulties faced by prosecutors.

Contrary to popular belief, the majority of rapes are not committed by strangers in dark alleys. In fact, stranger rapes count for less than a tenth of reported rapes. In most of these cases, the defendant does not deny that sex took place. Often there is a prior sexual relationship with the victim. The only real question for the jury is consent (or, in English law, the defendant’s reasonable belief in consent). It is here that the prejudices of the jury can be most damning. Rape victims don’t always behave as one might expect them to; their actions can be open to misinterpretation and lead to wrongful acquittals. Some of those prejudices appear to be in play at the moment.

Though always serious offences, sexual offences are mistakenly viewed as being crimes of violence in the sense of physical force. They are not. The essence is a violation of sexual and moral autonomy and bodily integrity. Neither force nor threat is necessary. All that is required is the lack of consent. In English law your body is inviolate: any non-consensual touching is, subject to certain defences, criminal. This misunderstanding is problematic. People who have been raped and sexually assaulted, and traumatised as a result, feel that they have no redress because they don’t realise they were raped. When I discussed the issue with a magistrate the other day, she suggested that we adopt the Swedish system of grading rape charges according to seriousness to get round this problem. Rape and sexual offences are not what most people think they are.

It’s worth bearing this in mind when considering the Assange case. Now on to the questions.

What are the Allegations?

The precise allegations are not entirely clear because the Swedish authorities don’t want to disclose all the evidence at this stage (see below). What they are willing to reveal was stated at Julian Assange’s first appearance at City of Westminster Magistrates’ Court.

In essence the allegations are as follows:

  • That Assange “unlawfully coerced” Miss A by using his body weight to hold her down in a sexual manner.
  • That he “sexually molested” Miss A by having sex with her without a condom when it was her “express wish” one should be used.
  • That he “deliberately molested” Miss A “in a way designed to violate her sexual integrity”.
  • That he had sex with a second woman, Miss W, without a condom while she was asleep.

There is more here, but as far as I know it hasn’t been verified.

That’s Not What We First Thought

No, but as I said, the Swedish authorities don’t want to disclose the evidence. The Swedish tabloid Aftonbladet published erroneous information.   It has an interest in the case. The newspaper agreed to have Julian Assange write a monthly column for them, in return for which he would be able to apply for full source protection under Swedish press freedom laws. This is covered in excellent detail at Ministry of Truth.

This would not be the first time Aftonbladet has displayed a casual attitude to the truth. The paper published a ‘medically impossible’ reworking of the anti-semitic ‘blood libel’ (the claim that Jews harvest the blood of gentiles), alleging that IDF soldiers harvested the organs of Palestinian teenagers.

More on the misreporting of the case can be found at Feministe and Jessica Valenti.

Why is Sweden Withholding Information?

Sweden has not withheld the allegations, but the full evidence they have against Julian Assange. This appears to be because of the stage of the investigation. Assange is currently wanted for questioning by police. If that is the case, then it is natural that they don’t want to disclose any more evidence than they absolutely have to. This is because if a suspect is given all the information in advance of questioning, it gives him time to concoct a defence. This is the basis of the police caution in the UK (‘…it may harm your defence if you fail to mention when questioned something you later rely on in court’). The earlier a defence is advanced, the more likely it is to be true. If the suspect has a genuine defence, he shouldn’t need to see the evidence against him.

This is a similar position to that in England and Wales. The police do not disclose detailed evidence to the defence until after the suspect has been charged. At the very earliest, the police would disclose some of the evidence in an interview conducted in accordance with the Police and Criminal Evidence act 1984 (PACE) [] (warning, this link is not up to date) and its codes of practice.

The Swedish prosecuting authorities want Julian Assange to give truthful answers to police questioning, and that shouldn’t need prior disclosure of the full detailed evidence. By asking for this, the defence are demanding to be treated differently from other suspects in a criminal investigation.

Hasn’t Julian Assange Offered to Co-Operate with the Swedish Authorities?

Not exactly. The Guardian reports that Sweden issued the Interpol Red Notice and European Arrest Warrant because Assange decided not to attend a scheduled interview with the Swedish Prosecuting Authority on 14th October.

Although the current line from his lawyers is that he is willing to be questioned, that agreement appears to be conditional on seeing the evidence in advance of questioning. That, for the reasons just given above, is not something Sweden is prepared to accept.

Has He Fallen Foul of a Law Against Unprotected Sex?

No. There’s no such law. If there were Sweden wouldn’t have any children.

What About “Sex by Surprise”?

This is the result of a mistranslation of the word överraskningssex, slang for rape. There’s no such offence in Swedish law.

Are these Crimes in the UK?

Because we don’t know what the evidence is, it is hard to be conclusive on this point. At its highest, the allegations appear to disclose prima facie cases of Rape, contrary to section 1 of the Sexual Offences Act 2003 (again, not up to date), and Sexual Assault, contrary to section 3 SOA 2003 (which replaced the old offence of Indecent Assault).

The relevant provisions are as follows:

1 Rape

(1) A person (A) commits an offence if–

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

3 Sexual assault

(1) A person (A) commits an offence if–

(a) he intentionally touches another person (B),

(b) the touching is sexual,

(c) B does not consent to the touching, and

(d) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section is liable–

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.

The CPS legal guidance can be found here.

For the purposes of the Act, sex is a ‘continuing act’. That means that initially consensual sex can nonetheless turn into rape.

Of note here is section 75 of the SOA 2003. As one of the allegations is that Julian Assange had sex with a complainant while she was asleep, he would be under the evidential burden to demonstrate either that there was consent, or he had a reasonable belief in consent.

One Complainant Didn’t Think it was Rape

This was suggested by Aftonbladet. The response by their lawyer, Claes Borgström, was the brief “they’re not jurists”. This needs some explanation. Rape has a specific meaning in law distinct from its social and moral meanings. For example, in England, rape can only be committed by a man. That would jar with many people’s view of what rape is. As I stated earlier, people don’t always realise that what happened to them is legally rape or another sexual offence.

Isn’t Going to the Police Together Suspicious?

The suggestion here is that the complainants didn’t want to pursue the matter until they both got together and one persuaded the other to go to the police. The idea is that they may have colluded as an act of revenge. That isn’t necessarily the case. It is a difficult decision to come forwards with a rape allegation. Some would rather just forget the event and get on with their lives. Individually the complainants may have just considered what happened to them a bad experience and preferred to get on with their lives. When they spoke with each other, it may well be that they only then realised the significance of what happened to them, and concluded that more was going on than just a bad experience. In that light, deciding to go to the police only after speaking to each other makes a lot of sense.

Doesn’t One Complainant have CIA Links?

There’s no credible evidence to support this contention. At its highest the suggestion is that she wrote an article sympathetic to US foreign policy. I wrote several papers sympathetic to US policy during my undergrad degree. I also wrote several papers critical of it. That doesn’t make me a CIA operative (though I would say that, wouldn’t I).

They Don’t Seem to Act Like Sexual Offence Victims

This appears to be a suggestion borne of prejudice rather than any informed understanding of how such victims behave. Reactions to date rape are complex and a lot of the discussion on this point owes more to myth than reality.

Are they Being Treated Better than Normal Rape Victims?

Naomi Wolf seems to think so. That does not, however, mean that they are making the story up.

I would also suggest that most rape victims do not get their names published all over the internet and subjected to a major campaign to rake through their entire pasts to find as much dirt as possible, before smearing them with as much innuendo as possible, while having what happened to them trivialised.

Doesn’t the Initial Decision not to Prosecute Indicate These are Sham Charges?

No. Rape is a specialist offence and the decision not to prosecute was taken by lawyers who have no special expertise in sexual offences. The case was re-opened by lawyers who do.

Lawyers legitimately disagree about the interpretation and application of the law a daily basis. It’s the very reason they exist. Prosecutors get things wrong. Indeed, this was a popular suggestion in the Ian Tomlinson case (though I happen to disagree). It is entirely possible for prosecutors to decline to press charges despite there actually being a case. There are plenty of cases where such a this has happened and a private prosecution has happened in its place, and succeeded. That is, I suggest, what has effectively happened in this case.

Isn’t the Complainants’ “Lawyer” Really a Politician?

Sort-of, but not in the way Julian Assange’s lawyer suggests. Claes Borgström is a practising lawyer and was equality ombudsman for a while. The misunderstanding comes from the fact that his similarly-spelt partner in the firm, Thomas Bodström, was Minister for Justice from 2000 to 2006.

Are these Holding Charges?

The idea here is that the charges are being used to get Julian Assange into Sweden, where it will be easier to extradite him to the United States.

This seems unlikely. As a matter of law, the UK has a much lower test for extradition than Sweden (“reasonable suspicion” rather than a “prima facie case”).

There is more detail here.

Although it is possible that he could be extradited to Sweden to take advantage of a regime for extraditing him for trial only, this is a convoluted process and doesn’t appear to offer any real advantage to US authorities.

Why Was Bail Denied at First?

I’ve covered this in another post. The court was always likely to consider Julian Assange a flight risk. He is a foreign national, who tried to keep his address secret, has a peripatetic lifestyle and no strong ties to the UK. He openly stated he was considering claiming asylum in Switzerland. The apparent conditions that were initially offered were insufficient to allay the court’s concerns.

Who Appealed the Bail Decision?

The CPS, independent of the Swedish Prosecuting Authority.

What Happens Next?

Bail is likely to hold unless there is a change in circumstances or Julian Assange breaches his conditions. A hearing will occur in January to decide how to manage the case, with the main extradition hearing in February. This will not be decided on the evidence but legal submissions.

Special thanks go to Carl Gardner and Matthew Taylor, who helped me with researching and editing this post.

If you want any other questions answered, please suggest them in the comments.

Note: Any comments naming the complainants will be redacted.

13 thoughts on “The Julian Assange Case: Frequently Asked Questions”

  1. Hello Ben,

    Sincere thanks for a very clear post. However, besides your unwarranted/unneccesary aside on Afonbladet’s past which simply lowers the gravity of your own arguments, your justification for re-opening the case seems not very convincing. The timing does appear to be rather politically motivated (and predictable) – particularly when you consider how Hillary Clinton has been embarrassed by her UN spying leaks and the current Swedish government is a right wing one.

    Regards,

    Sian

  2. Hi Sian,

    I don’t consider it unwarranted. I was merely pointing out that Aftonbladet has a credibility issue beyond just this case.

    Could you please explain why the timing implies political motivation? The case was re-opened in September by Director of Public Prosecutions Marianne Ny, who has specialist expertise in prosecuting sexual offences. That is almost two months before the cables were leaked. The procedure following that appears largely coincidental. Assange was to attend an interview scheduled for October 15th, but failed to attend. It would then take some time to get the paperwork going to get a red notice and EAW issued.

    The right-wing government suggestion is also tenuous. Both Claes Borgström and his partner are members of the left-wing Social Democratic Party.

    It also doesn’t mean it’s a stitch-up. It may be politically convenient for the US, but that doesn’t mean it’s contrived.

  3. On the one hand we have been told over the years that rape is one of the worst possible crimes, maybe even worse than murder. People are happy when those accused of rape are treated in a way worse than other criminals, even cutting corners in the usual judicial process.

    On the other hand, we learn that rape is just any sexual act that happens without consent, which could include anything from a violent coersion, ranging to a slight but willfull ‘misunderstanding’ leading to no harm, not even inconvenience, but maybe a slight irritation. We hear that most rape happens within established relationships. And indeed, if it is simply about crossing a boundary of explicit consent, it might be that most adults are rapists.

    Everybody knows that in usual language a playful ‘no’ doesn’t always mean ‘no’, while a bored ‘yes’ doesn’t always mean ‘yes’. Everybody also knows that it is part of the courtship game that women say ‘no’ when they mean ‘yes’, while independently from that insisting that ‘no’ always means ‘no’. Life is complicated, as is the simple sounding boundary of consent. Smooth operators know how to negotiate those boundaries, whereas the less insistent hunter types respect a simple ‘no’, that was just put there out of habit.

    Clearly, it is not consistent to be very outraged at the kind of ‘rape’ that nearly every adult person has been guilty of? If this is ‘rape’, then nearly all ‘rape’ can and should be dealt with efficiently in private, by giving the guilty rapist an ernest talking to. So where to put the boundary between ‘rape’ that is just inconsiderate and impolite, and ‘rape’ that is dealt with by police, or the justice system? In which cases would it be enough for a policeman to help the two parties to talk it out, and leave with a warning to avoid this in the future? When is it reasonable to ask the ‘rapist’ and the ‘victim’ to talk it over, and find their own way to avoid repetition?

    I think I’ve learnt a lot from this whole Assange rape case. Many opinions that seemed so obviously simple, don’t turn out to be so. Might it be that even the way the laws are written now is inconsistent with our moral perceptions?

    People like Assange, who can speak beautifully, take initiative, and lead, are very likely also those smooth operators that easily negotiate the boundaries of consent, even push them a bit. If two women have the motivation to go to the police to report a case of rape, they must feel that their personal boundaries were severely violated. But is it a case that has to be dealt with by the strong arm of the justice system? Until we haven’t heard the full story from the side of the prosecution, we cannot even give a moral answer to that question. But: judicial technicality keeps the prosecution from openly talking about the evidence at this early stage. For the time being, we can only respect the right of both accusers and the accused to be taken seriously.

  4. “And indeed, if it is simply about crossing a boundary of explicit consent, it might be that most adults are rapists.”

    It’s not a boundary of explicit consent, it is a boundary of consent, explicit or implied.

    Sorry, but most adults are not “rapists” even under your definition. More perniciously, your understatement of the seriousness of ignoring someones right to consent is deeply worrying.

    A person holds an inviolable sovereignty of bodily integrity, that can only be surrendered involuntarily by overwhelming state action in the public interest. That is as it should be. such imbalances of power exist (as you freely concede) that removing the ability to protect your bodily integrity via consent and rape laws would lead to massive harms. that people exist who can push the boundaries of consent and coerce people into actions they would otherwise not do, is not an argument for removing or lessening the effect of rape laws, it is an argument for greater protections for the vulnerable.

  5. Non-consensual sex is only rape in English law if the defendant doesn’t reasonably believe that the complainant consented (s.1(1)(c)). That removes the question of an unlucky defendant being guilty as a matter of law for mixed signals.

  6. David, I think you’ve read my comment as a defense of Assange, which is wasn’t. I’m not impressed that you’re using labels like ‘pernicious’, ‘understatement of the seriousness’, ‘deeply worrying’ to paint me into a corner, and win debating points. I was not trying to argue as a lawyer, to win a case against the other side. Please try to read my comment again, please avoid to reduce it to undefensible straw-man positions that I will not agree with anyway.

    I was more interested in the philosophical question of what consent is, and if purely the absence of consent is enough to define rape. To understand this better, let’s forget about the Assange case, but just think of the most benign kind of case where A knows that B didn’t consent. Then see if that has implications for how we define ‘rape’.

    Tell me if I’m wrong, but I believe that the word ‘consent’ implies that both parties positively desire to have sex. That would mean that a women accepting to do something that she really didn’t want can not count as positive consent. She could have secondary motives like not really caring much, not wanting to make too big a thing out of it, wanting to avoid a fight, being afraid it might cause a breakup. The man could understand this situation very well: i.e. he knows there is no real consent, but both can know the women will not be ‘harmed’ much, or that she is willing to accept the situation as a compromise. I would say that such cases fall within the english definition of ‘rape’, technically. A knows that B doesn’t consent, but A also knows that B will accept this ‘rape’ and not make any big thing out of it.

    I do think the above scenario should be called ‘rape’ under the definition as given above, from English law. But they would obviously never get to court. Now what is the reason that these cases don’t go to court? It isn’t the consent, but I think it is the fact that not enough harm is involved for the women to consider making a big thing out of it. The compromise that such a women accepts to make is not about the consent, but about the amount of harm done, that she considers acceptably low.

    My conclusion is that in practice, it isn’t just about consent, but also about the amount of harm. Absence of positive consent is not necessarily enough to cause sufficient harm. It only becomes a case if the ‘victim’ decides she felt sufficiently harmed to actually make a case out of it. Of course: as the harm is subjective, it is practically impossible to define it by law, and the lawmakers (wisely) avoided it by drawing the line at consent.

    However, in all discussions we see in blogs about the Assange rape case, it is clear that the amount of harm is something that counts. And is it unreasonable if we want to assess how bad the ‘rape’ was, and how heavily it should be punished, to take into account the harm done?

    I expect that both Swedish and English justice must have a way to take into account the amount of harm done. For example: even if there is no additional physical violence, a rape by a scary unknown person in a dark alley, is clearly much more harmful than the rape within a relationship as I just described, but where the women decides to change her mind and make a big thing out of it after all.

  7. I won’t get stuck into that argument (as I’m quite interested reading both your take on it), but harm is normally looked at when deciding sentence rather than liability. There are, however, exceptions – for example offences against the person (Crudely Assault -> Battery -> ABH -> GBH). I believe that the Swedish system is akin to this, and indeed that is what the magistrate I mentioned suggested to me. We do have something along these lines in the SOA 2003, but to me it feels unsatisfactory and arbitrary.

  8. “I support the idea of providing secure online platforms to facilitate whistleblowing, and used to support Wikileaks.” (The blog of a student barrister.)
    This statement by you makes me lose all faith in your blog. Julien Assange is not a whistle blower. He released what someone else had taken; that is not whistle blowing.
    Because I feel this premises is flawed, I doubt the authenticity of the rest of your blog. I am not sure that rape took place either. This is from a sexual assault crisis worker who has attended hundreds of sexual assault cases in Canadian courtrooms.

  9. I never said he was a whistleblower. I also don’t see how that would relate to the “authenticity” of the rest of the blog given that it is not the premise of anything that follows.

    Assuming, of course, that you actually read it.

  10. Ben: I read it all and excuse me for saying so, but having watched lawyers at work in Canadian courts, I have little regard for them either. When you have a young, inexperienced survivor, who has been badly abused by life’s experiences, up against and educated, well-trained defense attorney, I do not call this a fair fight. Lawyers are trained to be bullies and the survivors are their meat.

  11. @Nichol

    Last response on this. No, wasnt saying you were defending Assange, was giving a general principled explanation of why rape laws are based on consent and consent alone. I think hundreds of years of feminist campaigning died a death on seeing your comment. Rape is more than an “inconvenience” or “mixed signals”, it is someone ignoring your right to be in control of what happens to your body.

    The point of rape is that no means no. The idea that a violation of consent is somewhat lesser than a subjectively valued “harm” on your part is, quite frankly, sickening. If you think that’s me painting you into a corner, then tough, but I call objectionable opinions when i see them.

    The point is not that “consent” is essentially valueless and only actionable when the lack of consent is accompanied by some arbitrary harm, the point is that consent is ESSENTIAL in any sexual intercourse and that acting without consent is a moral aberration that far outweighs any corporeal harm.

    Rebuttal:
    Firstly, “That would mean that a women accepting to do something that she really didn’t want can not count as positive consent.” Sorry, but that’s a semantically null sentence. The double negative strips all meaning from it. I infer that you mean that, if a woman should hypothetically be less eager to engage in sex than a man, that consent is invalid. That’s not the case. Regrettably we live in a society where conceptions of consent are based on a “no means no” paradigm, not a “yes means yes” one. The difference is slight but important. Consent becomes invalid where a man could reasonably have known that consent was not forthcoming (as Ben said, “Non-consensual sex is only rape in English law if the defendant doesn’t reasonably believe that the complainant consented (s.1(1)(c))”) . A healthier and more appropriate approach would be to have a situation where consent only becomes valid where carefully given, not having consent as the default mode and an imperative to opt out in place, but I digress, merely my opinion, your point is still factually inaccurate.
    Secondly, your assertion that constructively a rape conviction is only pursued when there is an “actual harm” is false both in principal and in evidence. As I said above, a lack of consent is an “actual harm” and a morally disgusting one. As I explained in my first piece, personal autonomy is extremely important, and not viewing a lack of consent as inherently actionable leads to the kind of coercion and abuse that leads to constructive sex slavery. The allowability of marital rape was based on similar premises. It has taken a massive effort on behalf of the feminist lobby to get female consent the power that it presently has, it would be a massive step back to undermine that by cheapening it’s value to one that is less valuable than common assault. Further to this, the fact that consent *is* the only arbiter of the difference between acceptable sex and rape *does* allow women to action cases where there is no “harm” as you characterise it. So that point falls completely.

    In summary, consent is extremely important, any conception of rape that removes the primacy of consent cheapens the valuation we place on the importance of female consent and normalizes male heterosexual primacy and hegemony. Taking away the ability to take an action once your consent is violated would be a massive step back for society and the fact that society does have this ridiculous false dichotomy between a lack of consent and violent “real rape” is a damning indictment of social mores.

  12. David: I understand almost everything Nicole said, and I somehow doubt you really do. Like Ben, I have no wish to get into the middle of this argument, but I will say this – It sounds as though you are attempting to win points for an argument in debate club against someone who was attempting to have a philosophical conversation. You go so far as to argue the semantics of her sentence structure. You can derive her meaning from the sentence, regardless of the double negative – mentioning it serves no purpose and is a petty thing to say.

    I also think that, given the vagueness of the case, it is dangerous to assume that what the women are claiming is true – this is just as scary as devaluing the extent of the harm done to the victims.

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