The Oncoming Hope

Fair disclosure: I myself had a suspicion that these charges have been overblown as an excuse to bring Assange into custody. However, I did not feel remotely comfortable with that suspicion, and I'm glad I took the time to find factual justification before contributing to the caravan of dervishes whirling around this case. I definitely would not want to contribute to the 'blame the victim' culture that surrounds allegations of rape and sexual assault.

Now that Julian Assange has been apprehended by the police in London, the blogosphere has exploded with ill-informed opinions about the charges brought against him, ranging from hysterical misogyny to anti-government cynicism to glorification of conspiracy theories. And now for some devil's advocacy to augment this witch's brew.

Having done a little bit of research into the exact nature of the charges and of new information that has come to light, I have concluded that if the allegations are true, then under the letter of the law, Assange absolutely should be brought to trial (on the sex crime charges only). I'm going to leave aside my opinion on the 'correctness' of related laws, and merely discuss them in relevance to the case.

THE CRIME

Despite the reports in the media, the crime that Assange is being charged for is 'sexual coercion and sexual molestation' and not 'sex by surprise.' There is no such thing, I repeat, no such thing as sex by surprise, which is in fact an offensive colloquialism for rape in Sweden.

So what did Assange actually do? All the commentary along the lines of, 'ha ha, now sex without a condom is a crime, gotta get written permission before having sex with a women!,' completely misses the point at best, and at worst exposes a formerly latent misogyny in the left. (Ironically, some of the most virulently anti-women comments appeared as agreement with a Naomi Wolf(!!) article defending Assange).

The legal principle behind the two women's charges is 'withdrawal of consent,' the idea that a woman may consent to sexual relations and then withdraw them at any point. In the first woman's case, she agreed to have sex only if Assange used a condom. In the bedroom he refused the condom at some point and she repeatedly asked him to stop, but he forced himself on her anyway. (In fact, the latest release of the police report states that he used his body weight to hold her down). This is the basis of the sexual assault charge. In the second woman's case, he had sex with her while she was asleep (no consent there!), and did not use a condom on that occasion either, even though she'd also agreed to have sex only with condoms. This is the basis for the molestation charge.

There are two forces at play here. One, it is difficult for many Americans to grasp the very concept of 'withdrawal of consent' as a basis of a sexual assault charge, as it only exists in certain states and is rarely prosecuted. Withdrawal of consent is monstrously difficult to prove in a court of law. Second, making a successful legal case against rape in the United States usually entails proving that the rapist used or threatened the use of force to gain sexual power. Until the recent statement by the Swedish authorities, there was no suggestion of force.

This is my basic understanding of the legal context of the case, and I admit that it is just that - basic. Which leaves one conclusion: the law is responsible for determining the validity of the charges. Therefore Assange must be brought to court. I am fairly sure that 90% of commentators would agree if he weren't such an information hero at the moment.

THE PUNISHMENT

While it is likely true that Assange would not have been brought in for this crime if he wasn't so badly wanted for other reasons, the fact remains that under the Swedish law, he definitely committed a crime. Assange's lawyers have repeatedly parroted, incorrectly, that the maximum penalty for this crime is the kroner equivalent of $700, as if trying to diminish the crime by saying it's barely punished. This is false. According to the Swedish penal code, the maximum punishment is 2 years in prison.

The facts are these: the charges may be proven true or false in a court of law (that is why a court of law exists). However, it helps no one to misrepresent the nature or seriousness of the charges themselves, irrespective of the political context. Habeus corpus obliges the law to fully investigate and judge the case on its merits. If the charges are proven false, then the law is equally responsible to investigate and punish the perjurers.