Regulating Intimacy – Assange, Foucault and Rape

by | 13 Jan 2011

Sweet dreams are made of this/Who am I to disagree?/I travel the world/And the seven seas/Everybody’s looking for something.

Some of them want to use you/Some of them want to get used by you/Some of them want to abuse you/Some of them want to be abused. (Eurythmics)

Ultra Sensitive

Julian Assange is a sort of modern-day Che Guevara, which makes him sexy to women and men across the globe. Shortly after the Wikileaks dam burst, the international media announced that two casual sexual encounters in Sweden have resulted in the women laying charges of rape and sexual coercion/exploitation against him in terms of Sweden’s ‘liberal’ rape laws. Chapter 6 of the Swedish Penal Code deals with sexual crimes. In the Swedish warrant for Assange’s arrest, both of his accusers submit that they had separate consensual sexual encounters with Assange that became non-consensual after he refused to use a condom or replace a broken one. Other charges include using his body weight to hold down his sexual partner and initiating sex whilst another was asleep.

Much of the commentary thus far, either for or against charging Assange with rape, focuses on legal definitions. How do ‘we’ define rape? How is it defined in Sweden? How should it be defined? And so on. Feminists in particular are arguing amongst themselves (as they are wont to do) about the legal parameters of consent. When can a woman be said to have consented to sex? Until when is she entitled to withdraw her consent? Should signs of physical force/violence be required to prove lack of consent?

Much of the commentary is surreal, ranging from expressing hatred towards ‘radical’ feminists, who are ruining the spontaneity of sexual encounters that men deserve to indulge in, to arguments that women, as a result of unequal power relations, are not able to consent to sex at all. There is also the spectre of adopting as a legal standard something referred to as ‘consent-plus’: if sex takes place outside of a loving and intimate relationship, there is a strong indication that consent is lacking.

What is probably most disturbing about many of these discourses is that they place a heavy reliance on the law and legal definitions to protect ‘helpless’ women from victimisation and badly behaved, irresponsible and lecherous men. In addition, the Swedish Penal Code mentions that longer sentences for rape apply if the perpetrator caused “serious illness”, HIV/AIDS being applicable here.

In South Africa such seemingly protective legislation has been promulgated to allow women who lay charges of rape to legally force the alleged perpetrator to be tested for HIV/AIDS (Chapter 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007). This legislation is meant to empower women and to prevent secondary traumatisation, but in reality this provision serves no practical purpose whatsoever. Testing the alleged offender infringes a number of his human rights, and would only provide a false sense of security to the accuser.

Justice Edwin Cameron has challenged legal provisions such as compulsory HIV testing as such rules and regulations tend to legalise morality and further stigmatise HIV positive individuals. He refers to this as the criminalisation of the exposure to and transmission of HIV. This move to criminalise exposure and transmission enhances the idea that HIV is a shameful, disgraceful, unworthy condition.

Cameron thus argues for a human rights and public health approach to HIV/AIDS exposure and transmission, and opposes any form of legal regulation under such instances as the law is too ‘blunt’ an instrument and tends to cause more harm than good.

Cameron’s arguments are not phrased in the language of postmodernism and deconstruction, but they are radical in the sense that he, as a Constitutional Court judge, is involved in activism that opposes and challenges the role of laws in alleviating the scourge of HIV/AIDS. One of the arguments is that it is the disease that is dangerous and not the individuals who have been infected. The struggle should be against the virus and not carriers of the virus.

This reminds of Foucault’s warning – quite prophetically – that punishing immoral conduct, such as for example consensual sex with a minor (admittedly very controversial) would lead to labelling one part of the population – largely women and children – as victims who are endangered by the other part of the population – hetero- and homosexual men – who are legally constructed as dangerous. This, of course, is another example of the operations of incipient and insidious power relations that determine that which is considered to be ‘normal’ (or ‘good’ sex), and that considered to be deviant (indecent or ‘bad’) sex. This can also be illustrated by the division of the world into terrorists and victims of terror(ism).

So, what has this to do with Assange? The rape and sexual assault laws of Sweden are very broad. Take, for example, condom use. In one instance Assange was requested to wear a condom and did not do so (which was only discovered afterwards), and in the other instance the condom burst and he did not stop penetrating the complainant. Interestingly, these Swedish laws relating to the prevention of the spread of sexual diseases originated from the legal punishment of persons who exposed others to venereal diseases. Much of this legal regulation was a reflection of ‘social mores’. As such, Cameron would define this kind of law as criminalising HIV/AIDS exposure and transmission. Should Assange be HIV positive, criminal law could be the instrument with which to punish his sexual (mis)conduct.

This is not to say that there should not be a cautious approach adopted when engaging in ‘stranger sex’ in the age of HIV/AIDS. The argument is that the law is not an appropriate instrument to deal with matters of sexual intimacy as general principles can never do justice to the particularity of the situation and the nuances of sexual game-playing. Such is the forceful and violent nature of The Law. To depend on legal regulation to resolve all the complexities and quirks of human relations is a dangerous precedent and enforces the dualisms of guilt/innocence and normal/perverted. It is such dualisms that serve to re-produce Foucauldian ‘docile bodies’ that do not threaten or resist the status quo.

Although Foucault and feminism do not ‘fit’ comfortably according to both sides of the spectrum, his work on power-relations and the construction of the individual is useful in addressing some of the issues raised above in relation to Assange and the rape charges. Foucault does not consider power in monolithic terms – power does not reside completely in the State, or other obvious hierarchies, but its real effects are concentrated and diffused in a complex manner throughout hierarchies, like the roots of a tree. Foucault thus focuses on the specificity of power as founded in the law, education, medicine, the family, and so on. Thus power is localised and power relations are heterogeneous. They are interwoven with other kinds of relations, not arising from a unified source but operating on many different levels. Other than constructing individuals, this also allows for localised changes and resistances within complex power relations.

In Discipline and Punish Foucault demonstrates how the modern orientation towards discipline and incarceration is instrumental to the development of the theme of individuality and the rise of the human sciences. As such he writes about the carceral network and “technologies of power”, namely, torture, punishment, and discipline, in order to describe changes in legal and social attitudes towards criminals and punishment, and to trace their implications for the constitution of the modern individual.

For Foucault, the origin of the individual is inseparable from the power-knowledge relations that operate specifically on the body, and he expresses concern about the capillary mode of power that operates on the body and that deeply controls individuals and their knowledge of themselves:

But in thinking of the mechanisms of power, I am thinking rather of its capillary form of existence, the point where power reaches into the very grain of individuals, touches their bodies and inserts itself into their actions and attitudes, their discourses, learning processes and everyday lives. (Power/Knowledge: Selected lnterviews and Other Writings 1972-1977 at 39)

Paradoxically, however, the impact of power-knowledge relations on the body not only controls individuals as objects, but also produces specific forms of individuality/ subjectivity. For instance, discipline is a process of individualisation, but it also produces a normalising effect on the individuals it constructs.

This becomes possible though techniques of surveillance characteristic of the carceral society (panopticism) Foucault warns that ‘the judges of normality’ are always present in law, education, medicine, social services, and so on. In The History of Sexuality he also considers the positive effects of power-knowledge as it allows individuals to understand themselves as subjects, but also questions the reasons why sexuality is often considered the site of the secret truth about ourselves.

Judges of morality are intruding into our most intimate spaces and punishing certain kinds of sexual conduct. In The Will to Knowledge (1976) Foucault points out that legislation on sexuality introduced into France since the 19th century constitutes a set of laws on decency, which are difficult to define. Such laws would then be used as political tools.

Similar to dictating how one should eat or sit or speak or dress, normalising moralists are interfering in how we have or don’t have sex. And the most problematic of all is that sexual conduct which is not compliant can be legally punished. The problem is that in such a way harmless conduct may be punished merely because we do not approve of it. If Assange is HIV negative, which one assumes he is, and neither of the complaints fall pregnant, then his failure to wear a condom caused no harm. Or are we now choosing to punish potential harm or the risk of harm? Or, perhaps, punishing the failure to be a considerate lover, or the narcissism and promiscuity of a man who fucks helpless women and then leaves?

Women calling for empowerment through ever-increasing legal intervention and regulation forget that the law itself is a source of disempowerment. The law contributes in many ways to constructing our sexuality and limiting our ability to resist suffering. Indeed, as Nicola Lacey has argued, the contradictions inherent within law mean that a feminist nirvana is unlikely to be secured through legal means, although the cosy ‘legocentric’ worldview can be seductive. Nevertheless, Lacey is prepared to concede the importance of small tactical victories which can be secured through law, but faith cannot – and should not – be placed in legal strategies alone.

As Drucilla Cornell has argued, we will always fail in our attempts at dressing law up in the garments of justice, as we can never successfully mask the foundational violence of the law. There is thus no alchemy involved, but a mere process of masking and masquerading as Law-Doers are not able to respond adequately to human suffering and to act responsibly in the face of suffering, no matter how much faith is placed in them. The reality is that Law-Doers work within an impersonal system of suffocating “normalisation” that aims to bring about a subtle but effective imposition of uniform behaviour on ‘law-abiding’, subservient individuals.

Assange is a rebel, he is dissident, breaks the rules and refuses to express comfort with any kind of subservience to Authority. How, then, is he to be controlled?


  1. ?’If Assange is HIV negative, which one assumes he is, and neither of the complaints fall pregnant, then his failure to wear a condom caused no harm.’ WHAT? Because obviously there is no impact on the personal integrity or autonomy of his sexual partners where he directly ignores their wishes.

    • To the first part of the quesion, if none of the popele have HIV, no, HIV will not be created and the popele will stay HIV negative. HIV is a virus and the only way popele can get it is is the virus is inserted into the blood stream, usually via the sexual fluids. The second quesion isn’t very clear, but popele can spread HIV through oral sex if the partner has a cut or ulcer in their mouth. But if both partners already have HIV, they’re not going to catch it again.

  2. The type of harm I am referring to is LEGAL harm – a harm that would ‘require’ criminal may be that he has been irresponsible, unethical, immoral, but my main argument is that this should not fall within the domain of The Law.

  3. Oh come on, are you telling me then that psychological harm, which the scenarios outlined in the Assange case certainly have the potential to cause, would always fall outwith the province of the law? In that case, would physical torture “require” a criminal sanction but not psychological torture? & if a rape per se could not be shown to have caused any physical “harm” in the sense you outline above, would that still “require” a criminal sanction?

    The last line of your post is the key one: perhaps it would be better phrased, are there any laws that Assange would regard himself as subject to? or is his own self-definition enough to put him beyond the law?

    Oh, and Assange is “sexy to men and women around the globe”? Speak for yourself, would you?

  4. EmiLy, are you comparing lack of condom use or a burst condom to psychological torture? If so, I don’t think I can debate with you.
    Before you attack, get your facts about the incidents straight.

  5. No quibbles with your points about “normality” and control, but for a blog titled “Critical Legal Thinking” you are playing a tad fast and loose with the legal context. Assange has not been “charged” with anything, the Swedes merely want to question him, on their premises.

    Nor is it clear that it was “the women laying charges of rape”. Miss A in particular seems to have found her lawyer and the police taking things out of her hands, for an agenda of their own – not a million miles from your overall thrust.


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