Dec 12, 2010
By Jessica Valenti
Let's get this out of the way: Sweden does not have a "broken condom" law. WikiLeaks founder Julian Assange was not arrested because his contraception failed mid-coitus. Nor is he charged with "sex by surprise."
Everyone from Fox News's Glenn Beck to feminist writer Naomi Wolf is getting in swipes. Beck told viewers that Assange is being investigated for "sex by surprise" (again, not a real law) because of a "radical" feminist bent on revenge. Wolf wrote a snarking letterto Interpol in the Huffington Post, arguing that the accusers are using feminism to "assuage . . . personal injured feelings." And AOL News writer Dana Kennedy dismissed the incidents as a simple "condom malfunction."
The allegations against Assange are rape, sexual molestation and unlawful coercion. He's accused of pinning one woman's arms and using his body weight to hold her down during one alleged assault, and of raping a woman while she was sleeping. In both cases, according to the allegations, Assange did not use a condom. But the controversy seems to center on the fact that both encounters started off consensually. One of his accusers was quoted by the Guardian newspaper in August as saying, "What started out as voluntary sex subsequently developed into an assault." Whether consent was withdrawn because of the lack of a condom is unclear, but also beside the point. In Sweden, it's a crime to continue to have sex after your partner withdraws consent.
In the United States, withdrawing consent is not so clear-cut. In September, for example,prosecutors in North Carolina dropped rape and sexual battery charges against a high school football player because sexual contact with the alleged victim began consensually. The dismissal documents cited a 1979 North Carolina Supreme Court ruling, State v. Way, which says that if intercourse starts consensually, "no rape has occurred though the victim later withdraws consent during the same act of intercourse."
So if you initially agree to have sex and later change your mind for whatever reason - it hurts, your partner has become violent, or you're simply no longer in the mood - your partner can continue despite your protestations, and it won't be considered rape. It defies common sense. Who besides a rapist would continue to have sex with an unwilling partner?
It was only two years ago that Maryland overturned an archaic court ruling stating that if a woman withdrew consent, any sex that followed wasn't rape. In 2007, the Maryland Court of Special Appeals justified this old ruling, explaining that anything after the initial "deflowering" of a woman couldn't be rape because "the damage was done" to her virginity and she could never be "reflowered." In fact, the injured party, according to this ruling, wasn't even the assaulted woman, but the "responsible male's interest" - that of her father or husband. It took until 2008 for the state's highest court to change this.
"The United States has relatively regressive rape laws; in most states, there's a requirement of force in order to prove rape, rather than just demonstrating lack of consent," feminist lawyer Jill Filipovic wrote last week. "We're deeply wedded to the notion of rape as forcible . . . a consent-based framework for evaluating sexual assault is not yet widely accepted."
The fact that U.S. law is so ill- equipped to actually protect women in realistic scenarios is a national embarrassment - not to mention a huge hurdle in obtaining justice for sexual assault victims. Swedish rape laws don't ban "sex by surprise" (a term used by Assange's lawyer as a crass joke), but they do go much further than U.S. laws do, and we should look to them as a potential model for our own legislation.
In fact, some activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn't give it.
"I am proud to live in a country where rape and assault are considered to be serious crimes," Swedish feminist Johanna PalmstrÃ¶m told me. But "even if we have good laws, it still happens too often that people who report rape are questioned and slandered - we see that now with the women who have reported Julian Assange."
Indeed, better laws do not always mean justice for victims. Only 20 percent of the rape cases reported in Sweden in 2008 resulted in a court trial. A 2010 report by Amnesty International notes that acquaintance rape in Sweden is on the rise and that victim-blaming is just as alive there as in the United States: "Young and intoxicated women in particular had problems fulfilling the stereotypical role of the 'innocent victim.' As a result, neither rapes within intimate relationships nor 'date rapes' involving teenage girls generally led to legal action."
None of this is to say that the accusations against Assange are true - we have no idea. And there is little doubt that the timing of the legal proceedings is politically motivated: Assange's accusers came forward in August (the same month they allege being attacked), but it's only now that authorities are vigorously pursuing the case.
"They called me the James Bond of journalism," Assange told the New York Times in October, discussing the warm welcome he got in Sweden. "It got me a lot of fans, and some of them ended up causing me a bit of trouble."
That "bit of trouble," as he put it, and the way the Swedish authorities are pursuing the allegations, is a key lesson. Whatever Assange is revealing about this country's diplomacy, his high-profile case has also shown how far the United States is from Sweden - and from justice - when it comes to victims of sexual assault.
Jessica Valenti is the editor of "Yes Means Yes: Visions of Female Sexual Power and a World Without Rape" and the founder of Feministing.com.