This morning, an email arrived in my inbox concerning a demonstration of “solidarity” with Julian Assange. The email indicated support for Assange’s cause of a number of left-wing and anti-war organisations.
Let me start this by saying that I have serious issues with the European Arrest Warrant. When it was transposed into Irish law the Human Rights Commission warned of the dangers of imposing by fiat mutual recognition of EU member states’ legal systems, when not all member states have equivalent human rights protections. This remains a legitimate concern and an argument against Assange’s extradition under that procedure, although it was also an argument against the extradition of a Holocaust denier a few years ago and I don’t remember the anti-war left lining up to stand in solidarity with him.
Assange’s defenders have presented the case against him as if the allegations were either completely concocted or an example of “political correctness gone mad” (christ, I hate that phrase). So let’s look at what his own lawyer has conceded [ETA – see comments]:
He described Assange as penetrating one woman while she slept without a condom, in defiance of her previously expressed wishes…
In the other incident, in which Assange is alleged to have held a woman down against her will during a sexual encounter, Emmerson offered this summary: “[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…”
What Assange’s defenders argue makes these clear (if accurate) cases of rape and attempted rape into not-rape is that the women subsequently decided they were ok with his actions. That this sort of retrospective consent does not exonerate him from the charges is presented as an example of Swedish law being bonkers.
Now I’m the first to acknowledge that Swedish law is bonkers in a lot of respects. But this isn’t one of them. In fact, it is quite possible that a charge of rape for what Assange allegedly did – at least in the first case – could be sustained under the common law, the basis of the legal systems in England and most of its former colonies, including Ireland.
Legally there are two elements required for an offence to be committed – the actus reus (physical manifestation of an act) and mens rea (the mental element). The mens rea for rape is either knowledge that the person was not consenting, or recklessness as to whether they were consenting. Rape is considered a “continuing act”, so the actus reus begins with penetration and ends with withdrawal.
As a general rule, there is a requirement that the actus reus and mens rea coincide in order for the offence to be committed. Crucially, it was held by the Privy Council in Kaitamaki v R that in a continuing act such as rape, the two only need to coincide for part of the act – it is not necessary that the mens rea be present the entire time that the act is being committed. So what Assange allegedly did to this woman was rape right up until the moment she decided to give consent. There is no retrospectivity in the law. (The facts of Kaitamaki are different, in that there the accused initially believed the woman was consenting but refused to withdraw after realising she was not, but the principle is the same – if at any time while having sex with her he realised she was not consenting, the offence is committed.)
Of course, people are free to believe that this is a bonkers law too if they wish. But even if the law was overturned, it would not change this simple fact: if
what his own lawyer says is the allegations are true, then Julian Assange is a man who considers it perfectly ok to have condomless sex with a sleeping woman who had already refused to agree to this while awake. Perfectly ok to hold a woman’s arms down and try to force his penis inside her while she is clearly trying to prevent this from happening. That makes him a violent, misogynist sexual predator, irrespective of how these women later responded to him. It can reasonably be considered likely that he has done the same to other women. Who may not have later responded as these two did.
I don’t accept the argument that we should nonetheless defend Assange because of the alleged political undertones of this prosecution. That would be giving leftists, anarchists and other radicals a licence to rape. It may well be that if he was Joe Schmoe instead of Julian Assange these charges would not be pursued – but to even make that argument is to acknowledge the horrendous degree of underprosecution of sexual crimes. It is an argument for going after more sexual predators, not for excusing some of them because of another status they may have. I have seen it argued that if Assange is convicted it will serve as a precedent for targeting other enemies of the establishment. To this, I reply: if they are committing violent crimes against people more vulnerable than they are, they should be fucking targeted for those crimes. Why should they get a pass?
My concerns about the EAW notwithstanding, the bottom line here is that the police and the judicial system are doing exactly what they are supposed to do: prosecute a man who
his own lawyer concedes is alleged to have committed violent acts against two women, attacks that can reasonably be suspected of meeting the legal definition of rape and/or attempted rape (of course this will ultimately have to be proven in a court of law). The left need not show solidarity with these particular women if they genuinely believe their decision to press charges was malicious, but that does not excuse them for failing to show solidarity with all the other women who have been victimised by men who believe themselves entitled to do the things that Assange allegedly did. And all the other women who potentially could be. Which is all of us.
Women are 50% of the 99%. It’s time for the left to remember this.