Tuesday, 12 July 2011

Assange's extradition, and what English law actually says about rape

[trigger warning]

So, Assange's appeal against his extradition started today. As with last time, his lawyers are going for a "it wasn't illegal"/"it's only illegal in Sweden because they're weird" approach.

These are expensive lawyers... have they actually read English sexual offences laws?

The Guardian's coverage of the case contains a few very odd statements from the lawyers.

11.27am: In one case Assange is accused of having sex with a woman without a condom – but Emmerson [Assange's lawyer] says deceiving someone on this issue is not illegal under English law.

Yes, it is. Quite seriously illegal. Section 76 of the English1 Sexual Offences Act 2003 states that it is to be "conclusively presumed" that the "complainant did not consent" if:

(a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

A "conclusive presumption" is really strong - it basically says that the condition by definition implies the outcome. So if deception were proved in an English court, it would mean that "but she consented" was legally virtually impossible as a defence.

Slightly later:

11.35am: The so-called "minor rape" allegation – when Assange was alleged to have had sex with one of the alleged victims, known as SW, when she was asleep or half asleep – was an "entirely consensual sexual encounter", Emmerson says.

Again, not under English law. Section 75 of the Act states that there is an "evidential presumption" about a lack of consent if:

(d)the complainant was asleep or otherwise unconscious at the time of the relevant act;

and the defendant was aware of this.

An "evidential presumption" isn't as strong as the section 76 "conclusive presumption", but it's still fairly strong - it says that it will be assumed that there was no consent unless evidence can be provided to suggest that there specifically was - a "defence must prove you didn't" rather than the default "prosecution must prove you did" question.

The 11.35 quote also doesn't fit well with some of the other things Emmerson says - for instance

10.50am: The Assange team is promising not to attack his accusers and not to doubt their discomfort about his sexual conduct.

So... it was "entirely consensual sexual conduct" that was "[felt to be] disrespectful, discourteous, disturbing or even pushing at the boundaries of what [the victims] felt comfortable with." (Liss has more on this at Shakesville)

Or later on

12.22pm [...] this is not intended to challenge "the genuineness of their feelings of regret about having had consensual sex with Mr Assange or trivialise their experiences". [...]

[...] But the sexual activities that occurred had taken place with consent, he argued, and, unlike in Sweden, could not be criminalised in the English jurisdiction. [...]

Except that they're saying it wasn't consensual, or there wouldn't be a case to answer here.

And the judge in the original extradition hearing ruled - quite correctly - that under English law the accusations amounted to 3 accusations of rape and 1 of sexual assault.

A brief comparison of Swedish and English sexual offences laws

  • English law defines a broader range of assaults as rape. The Swedes are trying to extradite Assange on 1 count of rape and 3 of "sexual molestation". In English law, 3 would be rape, and only one the lesser offence of sexual assault.
  • English law also defines, though this is not relevant directly to this case, several types of assaults as "sexual assault" that are not criminalised at all under Swedish law, as far as I can tell.
  • English law has far stronger penalties for rape. The average custodial sentence on conviction is 8 years - the maximum a life sentence. The maximum sentence that Assange could serve in Sweden if convicted is only 4 years.
  • English law has explicit definitions of consent to say that someone who is asleep did not consent, and someone who was deceived as to the nature of sexual activity did not consent - strong enough that the question of consent should not need to be proved in court if there is no argument about the circumstances. Swedish law, as far as I can tell, does not.

But it's the Swedes who apparently have this ridiculously tough law that criminalises normal sexual behaviour. The fact that English law is in fact tougher - and rightly so - in just about every area doesn't stop people believing this - or Assange's lawyer claiming it in court:

11.31am Emmerson argued that Assange was a victim of a "philosophical and judicial mismatch" between English and Swedish law over what constituted sex crimes.

Such mismatch as there is actually works in his client's favour, at the moment, since the extradition would move him to a jurisdiction with less strict laws and less strong punishments.


1 Wales uses the same Sexual Offences Act. The laws in Scotland and Northern Ireland are different, but I'm not completely sure how. Unless Assange flees to Glasgow, and Scotland then declares independence, it won't become particularly relevant to this case.