Like many others, I used to admire Julian Assange. In 2009 I took part in a campaign to nominate Assange for ‘Australian of the Year’, thinking that putting forward a journalist who actively publishes material that challenges nationalistic myths for a nationalistic prize, was a small but effective political statement about what makes a good citizen.
Four years on, the valorisation of Assange is no longer something I can take part in. As we are all now well aware, two women made complaints about Assange’s behaviour toward them during separate sexual encounters in Sweden, including that he had not used a condom when both women had explicitly asked that he do so. Assange condemned the allegations as a smear campaign, maintaining that the sex was at all times consensual.
Assange’s decision to seek asylum in the London’s Ecuadorian Embassy to avoid extradition to Sweden was a smart one, and one which made him even more of a hero to many men (notably John Pilger, Ken Loach, Noam Chomsky, Tariq Ali, Michael Moore and Oliver Stone) and some women (notably Naomi Wolf, Katrin Axelsson and Lisa Longstaff) from the upper echelons of the left which already regarded him as a hero on the basis of his Wikileaks work. Taking a position consistent with the approach of the Socialist Workers’ Party leadership with whom many of them are likely familiar, a number of these prominent figures have felt able to confidently declare Assange’s innocence without the need for any kind of legal process.
Others have taken the seemingly more moderate position of continuing to support Assange but also insisting that the women’s allegations be addressed by proper legal process, so long as that does not put Assange in any danger. Two weeks ago Wikileaks Party candidate Leslie Cannold defended her decision to stand with Assange on the basis that she ‘wasn’t bedside’ when the events took place — no one was except for Assange and the women, so the only just course of action for those who believe in ‘transparency, accountability and justice’ to take is to continue our prior support for Assange, and leave the matter to the courts. Law will deliver a fair outcome if only we can find a way to apply it while keeping Assange safe from the US.
Yet these two positions, of insisting on Assange’s innocence without legal process and of insisting that his guilt or innocence be determined by law, are not really any different. Law has never provided a useful framework through which to understand, address or prevent sexual assault. It is a feature of the majority of sexual assault cases that the only witnesses are the complainant and the alleged perpetrator, and the lack of third-party accounts is one reason that law finds sexual assaults so difficult to deal with. But that doesn’t mean that they didn’t happen.
Worldwide, more than one in three women will experience sexual or physical assault during their lifetime, usually by a male partner. Despite chronic under-reporting and extremely low conviction rates when a report is actually made (6% in the UK, 10% in Sweden), sexual assault occurs with devastating regularity. An English study recently showed that convicted rapists’ belief systems about what constitutes acceptable and desirable sexual behaviour are not markedly different from those of many other men.
With this in mind, we need to think critically about the way Cannold and others are using law as the benchmark for both determining guilt and delivering justice in the Assange case. When commentators such as Seamus Milne and Glenn Greenwald emphasise that Assange is ‘yet to be charged, let alone convicted’, ‘entitled to a presumption of innocence’, and ‘entitled to invoke all of his legal rights’ they are giving law too much credit in regards to its ability to deliver reliable outcomes.
As many of these commentators will be keen to point out in other circumstances, legal charges, convictions, rights and presumptions of innocence are not politically neutral. If legal systems accurately identified the perpetrators of sexual assault in our communities, then we would have to buy into the deeply skewed conclusions of criminal justice systems: that only a small minority of men ever commit sexual assault, and that those who do are mainly non-white, poor and unknown to their victims prior to the assault. But while sexual assault in racialised communities and non-Western countries tends to attract the attention of the law and the media, sexual assault is committed by white men too, by men of all classes, and including men on the left. But like other crimes, law has a tendency to let them get away with it.
It is ironic that Assange supporters can only see one side of law’s tendency to operate in favour of those with power. I don’t think many would doubt that the international pursuit of Assange for sexual assault is political, and as Axelsson and Longstaff from Women Against Rape (‘WAR’) put it, ‘unusually zealous’.
But the presumption that Assange is innocent is political too. The flip-side of ‘innocent until proven guilty’ in cases of sexual assault is that the woman is then necessarily guilty until proven innocent. If this leaves us with impossible decisions then we need to rethink how we understand sexual violence within our communities. The kneejerk refusal to contemplate the truth of a sexual assault allegation, and the deferral of the allegation to the courts, both display a deference to one of the fundmental pillars of rape culture: that sexual assault is too hard to hear, so it is preferable to pretend it didn’t happen. But for countless women, it did and it does, and it’s time we actually start listening to them.
Sarah Keenan is Lecturer in Law at SOAS, University of London