IIRC, one of the accusations was having sex with no condom at all even though consent had been conditional on using a condom, but had nothing to do with a broken condom.
"[...] what is alleged here is that Mr Assange 'deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state'"
"It is clear that the allegation is that he had sexual intercourse with her when she was not in a position to consent and so he could not have had any reasonable belief that she did."
Here's the allegation in English:
"4. Rape
On 17 August 2010, in the home of the injured party [SW] in Enkoping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep was in a helpless state.
It is an aggravating circumstance that Assange who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party’s sexual integrity."
If so, I see two possible cases here:
1) He forced himself into her before she could even wake - a very aggressive thing to do to anyone whether or not they've consented. Then it's definitely rape without any doubt.
2) He cajoled her while she was half asleep and started having sex with her in a way that she would have consented to had he been wearing a condom.
If 2, the point where it becomes rape is when she realises he doesn't have a condom and yet he continues despite her protestations. If she never realised he didn't wear a condom, then it's not rape. It's an evil and possibly criminal thing to do, but it's not "forcing someone to have sex against their will".
For the record, I think either action makes Julian Assange a total asshole, and quite possibly someone who should go to jail. But unless he actually committed rape I don't see who it helps to call him a rapist.
"1. On 13th – 14th August 2010, in the home of the injured party [AA] in Stockholm, Assange, by using violence, forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party’s arms and a forceful spreading of her legs whilst lying on top of her and with his body weight preventing her from moving or shifting.
2. On 13th – 14th August 2010, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual intercourse with her without her knowledge.
3. On 18th August 2010 or on any of the days before or after that date, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity i.e. lying next to her and pressing his naked, erect penis to her body."
You can also see why there were initially two allegations of rape....
Per Wikipedia, it would appear offenses 2 and 3 are "sexuellt ofredande", "which has been variously translated as "sexual molestation", "sexual assault", "sexual misconduct", "sexual annoyance", "sexual unfreedom", "sexual misdemeanour", and "sexual harassment"." (https://en.wikipedia.org/wiki/Assange_v_Swedish_Prosecution_...)
Well, that's very clearly rape (unless she had actually agreed to this kind of borderline BDSM sex, which he never said she did, afaik, so that likely means she didn't).
So why are we talking about condoms then? Seems largely irrelevant except in a legal context of bringing on as many charges as possible...
For offense 4, it's explicitly "an aggravating circumstance".
No, the point where it becomes rape is when he starts having sex with her without her consent!
I agree it's a lousy thing to do, but it's not like sexual consent is a conditional thing.
"I agree to have sex with you so long as you send that email tomorrow."
Next day: "You didn't send the email! That means you raped me yesterday!"
Er, no.
Either you consent to have sexual relations with someone, or you don't. If you don't, that should always be respected entirely. If you withdraw your consent halfway through sex, that should also be respected entirely. However, you can't withdraw consent later when you find out that the other person wasn't using protection. Or rather, you can accuse them of being an asshole, but you can't accuse them of raping you.
A few questions for you:
If someone has an STD, both parties are aware of this, and only agree to sex with a condom, what should happen if the condom is purposefully removed by the STD carrier?
Can someone agree to a blow job, but not penetrative sex? And is taking off a condom without prior agreement also fine?
Either you consent to have sexual relations with someone, or you don't
I hope my questions above illustrate that it's more complicated than the black-and-white views you're putting across here.
Edit: removed crappy BDSM question.
Edit II: I guess I'm just really confused that you agree with the principles of consent unless that consent involves a condom.
Personally, I find that strange, least of all over the increased STD and pregnancy risks involved.
Yeah, that seems reasonable enough to me.
I'm not a lawyer though, no idea what the courts in any given country would or wouldn't do.
Then that person is an evil asshole who should go to jail for purposefully infecting others with a disease, just the same as if he were to purposefully put anthrax spores on your pillow. However, he's not a rapist. That's something completely different.
Can someone agree to a blow job, but not penetrative sex? And is taking off a condom without prior agreement also fine?
Sure, that's a fair point. But there some might argue that that's a different kind of sex. Don't oversimplify my point: obviously agreeing to a blow job is not the same as agreeing to penetrative sex or agreeing to anal sex or agreeing to be tied up in a harness and whipped. But once it is clear that there is agreement for that kind of sex, you can't go after the fact and say "oh actually that was conditional on X and therefore you raped me".
As I said, the person who betrayed the other person's trust may still be an asshole - but a rapist, they're not. Let's reserve "rape" for what it actually is: a violent and despicable act of "taking" a form of sex that was refused.
...your definition, and nobody else's?
This is a marginally unfair comparison: you realise saying this puts you in the same camp as those who talk about "legitimate" rape?
I honestly don't understand why we can't keep a simpler definition for rape: sex without consent.
You're saying that sex without consent is fine if that consent involves a condom.
Because that's not the definition of rape?? That seems like a good reason not to oversimplify.
Here's our good old friend the dictionary to the rescue: http://dictionary.reference.com/browse/rape?s=t
1. the unlawful compelling of a person through physical force or duress to have sexual intercourse.
2. any act of sexual intercourse that is forced upon a person.
3. statutory rape.
4. an act of plunder, violent seizure, or abuse; despoliation; violation: the rape of the countryside.
5. Archaic. the act of seizing and carrying off by force.
Now, it could be that it ends up being called rape under definition #3 - because the statutes say it is. To me, that is a perversion of the english language, though. Rape is clearly intended to imply some kind of forcing. It's not just "I didn't consent to have sex in this specific way", it's "I either gave no consent or I asked them to stop and they still did it".
(first usage c. 1350) 1. The act of taking something by force; esp. the seizure of property by violent means; robbery, plundering. Also as a count noun: an instance of this, a robbery, a raid. Now rare (chiefly arch. and literary).
...
(first usage c. 1425) 2. Originally and chiefly: the act or crime, committed by a man, of forcing a woman to have sexual intercourse with him against her will, esp. by means of threats or violence. In later use more generally: the act of forced, non-consenting, or illegal sexual intercourse with another person; sexual violation or assault.
Subnote:
The precise legal definition of rape has varied over time and between legal systems. Historically, rape was considered to be the act of a man forcing a woman other than his wife to have intercourse against her will, but recently the definition has broadened. Under the Sexual Offences Act 2003, in the United Kingdom the crime of rape includes the penile penetration of the vagina, anus, or mouth of another person of either sex, where consent to the act has not been given. This includes marital rape: in 1992 the House of Lords, in its judicial capacity, decided that the previous understanding (i.e. that a wife had given an irrevocable consent to intercourse) was no longer part of the law. Sexual penetration of a child under the age of 13 also constitutes rape irrespective of whether consent is obtained. In the United States the precise criminal definition of rape varies from state to state.
As time moves on, so do definitions and the laws that go with them.
One bit of the subnote that really sounds out for the sheer number of horrible bits in it: "an act of a man forcing a woman other than his wife..."
Thankfully we've progressed quite a bit from those dark days.
> it's not like sexual consent is a conditional thing.
Actually, that's exactly like it is. Sexual consent is not an on or off switch. I can't do things to another person they don't like simple because they agreed to get in the same bed with me.
Seriously, you need to give this way more thought.
Yes, it is more nuanced than an on/off switch, if you consider all the different varieties of "sex" out there. No, omitting to use a condom while having consensual sex is still not rape.
This is tremendously different than your email example, because this 1) happens in advance of any acts (we're not retroactively making anything rape), and 2) condom use has manifestly significant consequences as to the safety and consequences of the act (so is very much something that should be impacting whether someone consents).
Depending on the nature of the email, the circumstances, and intents at the time, I'm not sure that I would say that situation could never be rape, but there is oodles of room for that to not be rape and this to still be.
And why not? Why would it be unreasonable to stipulate something to the effect of 'no unprotected sex'?
>How is that rape?
It is molestation because a safety protocol has not been used.
This is nothing like your example of sending an email. This is about ensuring personal health and safety. The charges are he deliberately deceived her over this.
The latter, as I've said, may still be criminal. But it's not rape.
The logic being applied here is that she consented to protected sex, not unprotected sex. If we want to split hairs over whether that distinction is meaningful, let's look at a couple of example scenarios:
1. Someone convinces a blind woman that he/she is her partner and has consensual sex with her. Is this rape? Did she only consent to sex with her partner, making the sex non-consensual? Or did she consent to sex with the person in the room with her, making this consensual sex?
2. A woman consents to sex, thinking that she is talking about vaginal intercourse. Her partner penetrates her anally. Did she consent to 'sex' in a general sense, so the specifics (anal vs. vagina) are not really important?
Number one is tricky. I don't know what the answer is there. My gut tells me that should be rape. But if I think about it, I think that's because the consent was never given to that person.
On the second one, I think most people are capable of telling the difference between whether they're having anal or regular intercourse, and, forgive me for going into details, but unless you're having exceptionally vigorous and violent anal sex, it's not like it's going to just "go in" unnoticed. There will at least be a brief period of, erm "engaging".
At that point, the recipient can just say "no". If they say "no", and the other person continues anyway, it's rape. Otherwise, I would think that consent is implied...*
* unless the perpetrator has threatened violence if the other person says no, obviously, in which case it's a whole different kettle of fish.
He ties her up and blindfolds her (maybe she's
into bondage). She consents to only be penetrated
by a sex toy. He lies to her, and penetrates her
with himself instead. She doesn't notice until
later. Consent or non-consent?
[1] i.e. she doesn't realize that there is no condom
She agrees to have sex only if he doesn't come. Unfortunately, he gets over-excited and comes anyway. She obviously doesn't notice until it actually happens.
In this scenario, he obviously has breached the initial conditions. Is that rape though?
In the Assange case, it's hard to say that he 'accidentally' didn't put on a condom after agreeing to put on a condom.
However, he is also accused of having sex with her while she was asleep. In that situation, I think it could very well be rape (if she felt violated). So, assuming that neither the girl nor the prosecution are lying, I consider the charges valid.