Law cannot determine whether Assange is guilty of sexual assault

Free Assange

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

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  11 comments for “Law cannot determine whether Assange is guilty of sexual assault

  1. Victoria Ridler
    13 August 2013 at 2:19 pm

    An important reminder of the insufficiency in the way that the law deals with sexual assault, thank-you Sarah. I think it’s particularly important when law is a instrument for differing questions about sexual assault altogether. But. . . I am uncomfortable with the dichotomy asserted at the end – that deferral to the ‘law’ indicates a preference to pretend that sexual assault doesn’t happen. I certainly agree that we should be both critically engaging with the law for reform, as well as looking at different kinds of non-legal ways of dealing with sexual assault and rape culture more generally. But the decision on many’s people’s part not to presume guilt without a legal conviction in such a case I agree with, and I don’t think that means I want to pretend that sexual assault doesn’t happen. Part of this is that I think we need to be able to distinguish between ‘presuming innocence’ with not ‘presuming guilt’.

  2. George Pappas
    13 August 2013 at 8:06 pm

    Having tried countless Domestic Violence cases, the law can be an effective tool for discovery of the truth even when the only witnesses are the victim and abuser. Sarah Keenan states “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.” It is simply not true that equitable justice is not possible in a court trial. In fact, depending upon police work and other evidence, most defendants plea guilty ‘without’ a trial. The law can be effective and should not dismissed too easily as a failure to protect victims of DV or rape. Nothwithstanding my point here, the rest of the article was interesting to read.

  3. duqu
    13 August 2013 at 8:56 pm

    As a condom without any DNA in any form was delivered to the police and recorded to the infamous police-protocol, and as these rubber details was collected approx 1 week after they was used, there is reason to suspect foul play. Woman SW also altered her version after a total of 7 interrogations, usually in sweden a woman gets interrogated 1-3 times maximum. So this is not a case between Assange and 2 woman, it is between Assange an around 35 persons involved in different matters were all these are hiding behind 2 woman that are just used for political reasons. An all these experts that writes in this matter does not know all vital details. For example, there is a 3rd woman where Julian stayed for 3 nights, she kept quiet and no reporter have even dared to mentioned this in this case, maybe because she is a journo herself.

    • Cau
      19 June 2015 at 2:06 pm

      Stef, I aalerdy Stef, I aalerdy commented on this video before, but I just wanted to be clear I know you’re just trying to make a point, but I think this could have been accomplished using a hypothetical. We’re talking about a high profile figure and any number of reasons or combination of reasons could have led up to this. I do appreciate the effort but I disagree with the approach. I do respect you’re right to an opinion. I just wanted to share mine.

  4. emirjame
    15 August 2013 at 2:01 pm

    As a feminist and someone who believes in transparency I followed the Assange court case in the actual court in London.
    To summarize the position of the English juridical system at that point:
    “It is quitte likely that there is no case at all in Sweden – but to put the requests from other countries to extradite under scrutiny to check if they are justified is way to elaborate. So we will check if the formalities surrounding the paperwork are something we can comply with & then get rid of Mr. Assange & the attached complicated situation”.
    As much as we know the facts there is not much of a case in Sweden.
    One woman went to the police because she wanted to obtain a hiv test after unprotected sex to which she, may it be halfheartedly, consented. There was no “rape situation” at all – she took the guy home to fuck with him & was planning to do that again.
    The other woman never had any complaints at all and voluntarily shared the bed with Assange for many days. When she heard he had also slept with someone else she became vindictive.

    Because the zealous and out of proportion prosecution in this case is completely out of the normal “Women angst Rape” in the UK have made a official statement declaring that – according to them – the prosecution of Assange is political:
    http://www.theguardian.com/commentisfree/2012/aug/23/women-against-rape-julian-assange

    For my reports from Court:
    http://wlcentral.org/node/926
    http://wlcentral.org/node/1244
    http://wlcentral.org/node/2023

  5. emirjame
    15 August 2013 at 3:16 pm

    In addition to the above I have to be very outspoken and say that I do think that it is proven by her own actions that “Witness A.” went to the press while her story was still just a story.
    This makes me feel that she is a person without integrity whatsoever.

    It is known that witness A. tweeted very positively about her encounters with Assange. She erased those tweets just before or during her visit to the police. Her explanation for that, which she testified to the Swedish police is: “She deleted these tweets because the was afraid that when the case came in the news people would guess that she is the complainant – because they will associate her with Assange”.

    My opinion: a normal complainant would not have started to take all these precautions, because they would not have expected their case to go in the news. But A took precautions because she KNEW the case would come in the news. Which is consistent with the very first article in the Expressen which states that the paper heard about the accusations from a source very close to the complainants!!

    In Belmarsh Court this was also read: the 7 steps to legal revenge.
    http://radsoft.net/news/20101214,00.shtml

  6. 2 November 2013 at 2:35 am

    Julian Assage was a good man, he didn’t do what they said, and if he did, where’s the evidence ?

    • Moussa
      19 June 2015 at 4:38 am

      Also, before annoye Also, before annoye starts chiming in about how opinions are like assholes I just want to point out that some opinions are more accurate than others. As author C.S. Lewis points out two people can have an opinion about a place such as New York. One who’s never been there as opposed to one who has lived there their entire life. Who do you think will have a more accurate description? Thank You for your time and I wish you the best Stef.

  7. Seab
    19 June 2015 at 1:11 am

    I would @regresseur I would also like to add that I made no mention of NYC I was siplmy referring to the geography of a place called New York but I suppose that in order to be complete you could add to that the people living there as well have you met the Amish living in upstate New York? Are they corrupt as well? I’ve met New Yorkers I lived in NYC for a little over two years not everyone is the same it was just an example it could just as well have been any place. Take care!

  8. katherine rebel
    10 August 2015 at 8:12 pm

    Thanks for this, it is the most reasoned and clear-sighted statement I’ve read to date on the subject, including one’s made by Naomi Klein on Democracy Now, when she aruges that Assange had ‘successfully negotiated’ not wearing a condom, a statement that already implies that a request was made repeatedly and was not honored. It is nearly impossible to find any sources to the rare Swedish law that is stricter than most regarding condom usage. I still support Assange, yet he comes off as cold-blooded and defensive, exactly the behavior he is accused of. In 2014, I had an experience where a new lover took off his condom mid-way, and before I could even process it, it was done, and so I know the confusion and sense of betrayal. It ended with emails, me demanding he apologise, he refusing to do so, and me feeling completely powerless to fight what he did, so I understand why the women went to the police. I also had the experience of a men just plain refusing to use a condom, which is also awful, and it’s been a big learning experience to understand how to deal with it in an assertive way, taking precautions, having discussions before romance begins. What should Julian do now to get out of this mess? Without implicating himself, he cannot even apologize for any harm caused. My advise is that the master of media devise a method that comes out clearly in favor of empowering women, protecting women, respecting women, rather than this claim he is being killed by radicals who hate men. I love men, I support Julian (still), but I also have been harmed by this cavalier behavior, so I’d like to suggest a way to place him on higher moral ground than where this began. It is simple, make a short documentary film about proper condom usage. This does several things, he is not admitting guilt, but showing how he does understand what the stakes are, and he knows what the rules are. It is a public service to inform other men what the rules are. The message is: never refuse a woman’s request to use a condom under any circumstances.

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