What the Assange case says about rape in America

By Jessica Valenti
Sunday, December 12, 2010

Let's get this out of the way: Sweden does not have a "broken condom" law. WikiLeaks founder Julian Assange was not arrested because his contraception failed mid-coitus. Nor is he charged with "sex by surprise."

The details of Assange's arrest last week are being sorted out in a bizarre game of Internet telephone in which misinformation reigns. Facts about the alleged assaults are hard to come by and are confused by contradicting media reports, translation issues, political bias and cultural disdain for rape victims.

Everyone from Fox News's Glenn Beck to feminist writer Naomi Wolf is getting in swipes. Beck told viewers that Assange is being investigated for "sex by surprise" (again, not a real law) because of a "radical" feminist bent on revenge. Wolf wrote a snarking letter to Interpol in the Huffington Post, arguing that the accusers are using feminism to "assuage . . . personal injured feelings." And AOL News writer Dana Kennedy dismissed the incidents as a simple "condom malfunction."

Now, we don't know if Assange is guilty or innocent - but we do know that the accusations against him have been badly reported, misconstrued and generally pooh-poohed. In the same way that Assange's document dump held a mirror to U.S. diplomacy, the accusations against him and the subsequent fallout reflect our country's overly narrow understanding of sexual assault, and just how far we are from Sweden's legal standard.

The allegations against Assange are rape, sexual molestation and unlawful coercion. He's accused of pinning one woman's arms and using his body weight to hold her down during one alleged assault, and of raping a woman while she was sleeping. In both cases, according to the allegations, Assange did not use a condom. But the controversy seems to center on the fact that both encounters started off consensually. One of his accusers was quoted by the Guardian newspaper in August as saying, "What started out as voluntary sex subsequently developed into an assault." Whether consent was withdrawn because of the lack of a condom is unclear, but also beside the point. In Sweden, it's a crime to continue to have sex after your partner withdraws consent.

In the United States, withdrawing consent is not so clear-cut. In September, for example, prosecutors in North Carolina dropped rape and sexual battery charges against a high school football player because sexual contact with the alleged victim began consensually. The dismissal documents cited a 1979 North Carolina Supreme Court ruling, State v. Way, which says that if intercourse starts consensually, "no rape has occurred though the victim later withdraws consent during the same act of intercourse."

So if you initially agree to have sex and later change your mind for whatever reason - it hurts, your partner has become violent, or you're simply no longer in the mood - your partner can continue despite your protestations, and it won't be considered rape. It defies common sense. Who besides a rapist would continue to have sex with an unwilling partner?

It was only two years ago that Maryland overturned an archaic court ruling stating that if a woman withdrew consent, any sex that followed wasn't rape. In 2007, the Maryland Court of Special Appeals justified this old ruling, explaining that anything after the initial "deflowering" of a woman couldn't be rape because "the damage was done" to her virginity and she could never be "reflowered." In fact, the injured party, according to this ruling, wasn't even the assaulted woman, but the "responsible male's interest" - that of her father or husband. It took until 2008 for the state's highest court to change this.

"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," feminist lawyer Jill Filipovic wrote last week. "We're deeply wedded to the notion of rape as forcible . . . a consent-based framework for evaluating sexual assault is not yet widely accepted."

The fact that U.S. law is so ill- equipped to actually protect women in realistic scenarios is a national embarrassment - not to mention a huge hurdle in obtaining justice for sexual assault victims. Swedish rape laws don't ban "sex by surprise" (a term used by Assange's lawyer as a crass joke), but they do go much further than U.S. laws do, and we should look to them as a potential model for our own legislation.

In fact, some activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn't give it.

"I am proud to live in a country where rape and assault are considered to be serious crimes," Swedish feminist Johanna Palmström told me. But "even if we have good laws, it still happens too often that people who report rape are questioned and slandered - we see that now with the women who have reported Julian Assange."

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