On August 18th, the youtube channel ‘molucca Red,’ ‘[t]he only fully authorised GG channel,’ posted ‘Good night with George Galloway (Episode 5).’ This episode featured Galloway discussing various issues relating to the Wikileaks founder Jullian Assange. In watching the episode, especially at around 21:15 into the video, the viewer may be forgiven for beginning to feel slightly nauseous (if this did not occur before). Indeed, the nauseous-ness of many media outlets and commentators has been expressed vehemently over the last week or so.
For it is at this point that Galloway states something which he knows will be ‘controversial.’ Nevertheless he justifies the controversy by stating that ‘somebody has to say this’ against the ‘reign of intellectual terror’ which has ‘descended upon this issue,’ ‘at least in Britain’ and (he ‘suspects’) ‘elsewhere in the rest of the Western world.’  What Galloway then moves onto discuss are the sexual accusations made against Assange from the Swedish authorities. His response to the specific accusations made by ‘Woman A’ are what seem to have provoked a strong reaction (to say the least) against Galloway.
For it becomes clear that with regards to ‘Woman A,’ although Galloway condemns Assange’s ‘sordid’ and ‘disgusting’ sexual behaviour, he ultimately states the following: that it is merely ‘really sordid and bad sexual etiquette’ to penetrate a woman whom one is already in bed with, whom one is already naked with and whom one has already penetrated previously, without asking for her consent, despite the fact she is asleep. This action, Galloway exclaims, cannot ‘constitute rape,’ for if it does, then it ‘bankrupt[s] the term rape of all meaning.’ Hence it is instead just a case of ‘really bad manners’: ‘it is not rape.’
It is to be noted that this controversial opinion is clearly at polar opposites to the 2011 (legal) opinion of the High Court on the subject. For in their judgement on the European Arrest Warrant (EAW) filed against Assange and the charge of ‘count 4’ therein against ‘SW’ (the rape of ‘Woman A’ in question), they clearly state the following (at paragraph 109):
In our view on this basis, what was described in the EAW was rape. Coercion evidences knowledge of a lack of consent and lack of a reasonable belief in consent. 
With this judgement a person’s nauseous-ness may subside. And there is seemingly good reason for it to do so. For what is made clear is that the High Court endorses the grounds of the EAW put forward by the Swedish authorities, on the basis that it is clear that ‘exploiting’ someone in order to have sex with them is a criminal offence. Further, a person may be exploited as a result of being in a ‘helpless state,’ such as ‘being asleep.’  Hence, should Assange have penetrated ‘Woman A’ (‘SW’ in the case), as per ‘count 4,’ when she was asleep, then this is indeed a crime.
It is at this point that the court then references the Sexual Offences Act 2003 of the criminal law of England and Wales because this piece of legislation deals precisely with the issue at hand. This point needs explaining, as the court makes only a passing reference to the act in order to justify its point.
The court references s. 75 (2) of the 2003 Act which provides for circumstances which might arise in the act of ‘A’ penetrating ‘B.’ The act provides a legal mechanism whereby should any of these circumstances be apparent and ‘A’ is aware of them, then it is presumed that there is no consent on behalf of ‘B’ and that ‘A’ does not reasonably believe that there is consent. These conditions, coupled with the penetrative act, then constitute rape. This is relevant to Assange’s accused actions because s. 75 (2) (d), provides for circumstances where…
the complainant was asleep or otherwise unconscious at the time of the relevant act. 
Indeed, this is precisely the situation of ‘count 4’ detailed in the court’s judgement (or, regarding ‘Woman A’ described by Galloway). Hence, as the court asserts, ‘she is to be taken not to have consented to sexual intercourse.’  Such an outcome is well noted in common law, for there are numerous instances where the accused has been prosecuted for engaging in intercourse (or sexual activity) when the complainant in question was asleep.  This (following the 2003 Act) results from the ‘evidential presumption’ that there is no consent present in certain circumstances and further, that the accused does not reasonably believe that there is consent.
However, it is at this point that nauseous-ness may return. For what has been detailed thus far is the ‘evidential presumption’ that there is no consent to sex when the complainant is asleep. Meanwhile, Galloway’s crude and misogynistic fervour of the fact that ‘this is something which can happen, you know,’ seems to be recognised by the law as somewhat of a legitimate fact; in law. For in short, it is legally possible for a woman to consent to sex whilst she is unconscious or asleep. This point, as with the earlier points on s. 72 (2) (d), needs explaining further.
As has been stated it is only an ‘evidential presumption’ that there is no consent given for intercourse when a woman is asleep. This means that the accused, ‘A,’ may offer evidence which rebuts this presumption, and so establishes that despite the fact that the complainant (victim), ‘B,’ was asleep or unconscious, she was also consenting to sex. This point may be seen as dubious and difficult for a jury to find convincing,  but it nonetheless is permitted and encompassed within the current criminal law of England and Wales.
This startling fact has not gone unrecognised by criminal scholars and has faced fierce criticism for taking the law ‘backwards rather than forwards.’  However the point has also been made that the law could here be seen to be too overbearing on sexual autonomy if it instead insisted that when a woman was asleep there could not be consent given for sexual intercourse (or indeed any sexual activity).  In this instance what is objected against is that the law, instead of enforcing an ‘evidential presumption,’ s. 75 (2), rather enforces a ‘conclusive presumption’ that there was no consent, s. 76 (2). Currently, the only circumstances which mean that there cannot be consent given are those where the victim is deceived, intentionally by the accused, as to the nature or purpose of the act in question (s. 76 (2) (a)); or they are deceived, intentionally by the accused, as to whom is engaging in the act in question (in short, the accused impersonates someone known personally to the defendant) (s. 76 (2) (b)). And so, as the law stands currently, it remains that it is still legally possible for unconscious women to give consent to sex … somehow.
All this nauseous-ness brings us back to the matter of Galloway’s rally against the ‘reign of intellectual terror.’ Because as much as we are sickened, appalled and disgusted by what he is suggesting, it is clear that somewhere, deep within the complexities of the Sexual Offences Act 2003, Galloway’s festering acknowledgement that ‘this is something which can happen, you know,’ finds a shred of validity in law. Whether this reflects the law’s founding arkhē of a phallogocentric framework with regards to the law surrounding rape  or a hesitancy to legislate against a fierce liberal tradition of autonomy, it sadly signals that although the High Court’s ruling is certain with regards to ‘count 4’ against Assange, other instances of ‘count 4’ may not receive the same ruling. And this will always be to the detriment of the victim through what is still a phallogocentric (‘the complicity of Western metaphysics with a notion of male firstness’)  construction of the law of rape.
So if we are appalled by Galloway’s remark then we are also to be appalled at the state of the law as it stands. For its grasp over a woman’s legal (and sexual) subjectivity is one which leaves a lot of questions unanswered. It once again presupposes certain homogeneous norms about how relationships create certain situations for sexual intercourse to take place in, and in doing it opens up the possibility for exploitation and violence against those situations which reside outside of such norms. As much as Galloway’s chauvinism may be dismissed as one man’s archaic and repugnant diatribe, it is not so easy to dismiss the fact that the law still can permit the very same thing.
The trace which is therefore left following the classification of being asleep or unconscious as an ‘evidential presumption’ means that somewhere, in circumstances of everyday people and their lives, the law has left it possible for the accused to be acquitted of an accusation of rape because it is still legally possible for a sleeping woman to give consent to sex. As the philosopher Jacques Derrida warned against, here law’s empire over women as legal (and sexual) subjects returns like a revenant, brought to light through Galloway’s vile comment:
[t]he effect of the Law is to build the structure of the subject, and as soon as you say, “Well, the woman is a subject, and this subject deserves equal rights,” and so on – then you are caught in the logic of phallogocentrism and you have rebuilt the empire of the Law. 
 All quotes are deduced from the video in question and any inaccuracies are the fault of the author.
  EWHC 2849 (Admin) – http://www.bailii.org/ew/cases/EWHC/Admin/2011/2849.html – para 109.
 As above – para 115.
 Sexual Offences Act 2003, s. 75 (2) (d) – http://www.legislation.gov.uk/ukpga/2003/42/section/75
  EWHC 2849 (Admin) – para 118.
 R. v Johnston  EWCA Crim 312, R. v Ciccarelli  EWCA Crim 2665, Garvey  EWCA Crim 2672, R. v Blacklock  EWCA Crim 1740.
 Ormerod David, Smith and Hogan’s Criminal Law (13th Edition) Oxford University Press Oxford 2011 p. 726. See P  EWCA Crim 1110 at para 29 for the judiciary’s doubt in the jury being convinced of consent being present.
 Temkin Jennifer and Ashworth Andrew, ‘The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problems of consent’ (2004) May Criminal Law Review 328 at 337. See generally 337-338 for details of Temkin’s and Ashworth’s criticisms on the 2003 Act regarding s. 75 (2) (d).
 Ormerod above note 7, at p. 729: ‘[f]or example, A, who performs a relevant sexual act … on his sleeping partner as a gesture of intimacy to wake her, ought not to be conclusively presumed guilty.’
 Hale Matthew The History of the Pleas of the Crown In the Savoy Printed by Nutt E and R and Gosling R London 1736. See p. 629 especially: ‘[b]ut the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.’ This quote ensured that for 250 years, until 1991 and the case of R. v R  1 A.C. 599; (1992) 94 Cr. App. R. 216, that a husband could not rape his wife.
 Derrida Jacques, McDonald Christie V. ‘Choreographies’ trans. Christie V. McDonald in (ed) Weber Elisabeth Points… Interviews, 1974-1994 Stanford University Press Stanford California 1995 p 89 at 96.
 Derrida Jacques, Adner James, Doyle Kate and Hendler Glenn ‘Women in the Beehive: A Seminar with Jacques Derrida’ trans. James Adner (2005) 16.3 differences 139 at 149.
Galloway’s comments were correct. There’s no precedent for the “rape” allegations in this case.
Thanks for your comment rayhow4220wxy4220, but unfortunately I disagree with your statement.
As I have referred to, in footnote 2, the judgement of the High Court from 2011 clearly states that the case of ‘count 4’ put forward by the Swedish authorities in the EWA ‘was rape’ (para 109 in the judgement).
Further (at para 115) the judgement also states the following: ‘rape can be committed according to the law of Sweden when a defendant has sexual intercourse with a woman in a helpless state. The particulars given in the EAW set out that helpless state as being asleep. There is no inconsistency between what is set out in the EAWand the classification of rape in Sweden.’ Hence there is deemed to be a precedent for this action to be judged as rape.
I’m aware of what the court asserted, but what I said was precedent. Show a conviction, not an assertion. There is no precedent in UK history for a rape conviction based on one ‘unauthorized penetration’ occurring for a second in the middle of several sessions of consensual sex. It’s never happened. The UK has apparently never treated this as rape until the defendant’s name was Julian Assange.
Thanks for your comment again rayhow4220wxy4220 but I think we’re getting somewhat off the point here.
It is well established English common law that when a person is asleep, they are unable to give consent for sex. This is reflected through the 4 cases I’ve referred to in footnote 6. However the point of the article is to expose that the the law’s phallogocentrism allows for consent to be established, somehow, nonetheless.
But it all seems somewhat irrelevant because the English system is not in question here. Assange is not being prosecuted under English law. It is the Swedish system which is under scrutiny, and as per the High Court’s ruling, it is a question of whether or not what Assange is accused of under Swedish law is rape: unquestionably it is. This is the assertion of the court, which relates to precedent in Swedish law to try Assange.
Indeed this particular type of case involving ‘the once present and then removed’ instance of consent has been tried in Canada. There, in the case of R. v. J.A., 2011 SCC 28,  2 S.C.R. 440 (http://scc.lexum.org/en/2011/2011scc28/2011scc28.html) the outcome is exactly what one would expect. A person who is unconscious cannot be said to be consenting to sex, even if they had previously given consent to sex prior to falling unconscious, even if they consented to being rendered unconscious through asphyxiation. As much as this shows a common law parallel to what the English system may see as a fitting judgement on this matter, the point is largely irrelevant, because the English system is not what is in question. It’s the Swedish system. And again, as the High Court has ruled, the Svea Court of Appeal in Sweden has judged Assange’s action to be one of rape.
It is nonetheless interesting, perhaps, that there are no recorded instances of this in English criminal law, or at least from what you’ve stated. But again, it’s neither relevant to Assange’s charge, nor the larger thesis of the article.
Fascinating post, but I’m intrigued by the majority ruling in the Canadian case. In principle, it isn’t obvious to me why someone should not be able to give anticipatory consent to something that will happen while they are unconscious. People do it all the time when they consent to surgery under general anaesthetic. The whole purpose of advance healthcare directives is to allow people to project current autonomy into future situations of incapacity. Is there any obvious reason why the same should not apply to sexual conduct, if someone makes an informed choice to that effect?
I understand that the majority were interpreting the relevant provisions of the Canadian Criminal Code, and not deriving this from more general principles of common law, so I’m wondering if a court in England could reach a contrary decision regarding the 2003 Act. To be honest, this is the only sort of situation I can imagine where the ‘evidential presumption’ of incapacity could possibly be rebutted; if not that, I’m really struggling to imagine what the legislative intent behind that may have been.
Any thoughts much appreciated. (And of course, I realise that this situation is quite different from that described by Galloway.)
Hi Colin, many thanks for this – an interesting point raised. But I think I would answer by separating the issues in question, consenting to sex and secondly consenting to harm, into the two different legal mechanisms which are put in place to deal with this situations.
Under the current law I’m referring to, which I can see your familiar with, there are 2 different statutes which would be relevant in firstly dealing with the example you’ve raised, and then secondly consenting to sex. The former being the Offences Against the Person Act 1861 and the second being the Sexual Offences Act 2003. Whilst the first does not spell out what ‘consent’ is in law, the second does (s. 74). And I think this legal distinction (history?) is significant when addressing the idea of consent to surgery – it is seen as, and always has been seen as, a necessary social good and so the awkward fact that the patient is unconscious throughout means that consent *has* to be given before hand. With sex, this is of course different; a person is not by default unconscious. And so I would proffer that the law sees a difference between the level and type of bodily integrity which is in question in each example. Hence it is seen as different when one considers sex as to why one needs to be conscious (largely) to consent to sex.
However this then bring us to the situations where a person could consent to sex when they are unconscious (having not given their consent during a prior conscious period). This is illustrated by the example given by David Ormerod in footnote 9 above. It should be clear from this example what the law is allowing when it leaves the fact that being asleep or unconscious is but an ‘evidential presumption’ for the lack of consent: that homogeneous narrative of comfortable (long-term) partners acting out a previously enacted sexual act, most probably within the confines of the marital home. Of course my point is of the harm this does, evidenced by the ‘sex game’ rhetoric of Galloway.
Hope this gives an insight into how I’d answer your question.
Hi Chris, and thanks for the thoughtful reply. Sorry for delayed reply-to-your-reply; I’ll have to take my chances that the thread has died and that I’m talking to myself here!
Hm, yes, you’re quite right that the law has drawn these sorts of distinctions. But I wonder if there’s another interesting distinction here, between:
1. situations where putative consent will be presumed (rebuttably or otherwise) not to be valid consent; and
2. situations where consent, no matter how valid, will not provide a defence to the activity in question.
The distinction drawn in R v Brown between sexual and medical acts was, I think, of Type 2. As you say, because surgery is deemed to be a social good, that cannot in many cases be performed while the patient is conscious, we will allow the defence of consent in such instances, but not necessarily in others. Leaving aside that the Law Lords got into a bit of a mess when they departed from the medical example (is boxing really a social good of any sort?), that’s a distinction with some validity.
But I think I would want to argue for consistency on the question of whether consent does, or does not, lapse on loss of consciousness, regardless of what is being consented to. At least, I don’t see any obvious reason for an inconsistency here (and I think consistency in law should be the default position.) In that regard, it seems quite right that the law should presume – in all contexts – that consent does indeed lapse on loss of consciousness, while leaving open the possibility that someone can explicitly provide to the contrary. I would also, btw, want to insist that the very act of rendering unconscious (in either context) was something to which the person had given explicit consent, regardless of what happens thereafter.
I should add that, while I’m not wholly confident that I’m right about this, i do welcome the chance to clarify my thinking on the subject.