Justice for Assange

Allegations

The Allegations

Sweden has issued a European Arrest Warrant and an Interpol Red Notice in order to further investigate four allegations of sexual offences. No charges have been filed against Julian Assange.

• Read the Swedish police report in Swedish and here in English.

Al Jazeera interview with Julian Assange on 21 August 2010, just after the rape investigation was dropped

Ashworth’s analysis

In the Feb 2011 Hearing, the expert witness and Professor of English Law at the University of Oxford Andrew Ashworth analysed the EAW in relation to the complainants’ statements in the preliminary investigation, as well as the prosecutor’s statement. He considered:

 Double criminality - whether the offences described in the warrant would also be offences under English Law.

 The prosecution’s argument that it is possible to infer Julian Assange’s criminal intent (mens rea) from the complainants’ statements.

The description provided in the EAW does not permit an inference that there was a lack of consent by the complainant, nor that the respondent did not reasonably believe the complainant to be consenting.

’Claimed Offence 1. Unlawful coercion’ (claimed equivalent offence in English law: sexual assault, Section 3 of the Sexual Offences Act)

"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 while lying on top of her and with his body weight preventing her from moving or shifting."

• Compare to:

"In Norway and Sweden, the letter of the law allows even slight use of force to be interpreted as constituting rape: it may be sufficient for the perpetrator to "impede the victim’s movements" for example by holding the victim’s arms to pin her/him down, by applying body weight or by forcing the victim’s legs apart [emphasis added]." - p. 9 Amnesty International Report Amnesty International, "Case Closed, Rape and Human Rights in the Nordic Countries", March 2010.

The description of claimed offence 1. ’unlawful coercion’ bares an uncanny resemblance to the Amnesty International report, which was published five months prior to the alleged offence.

• It is not at all clear how ’violence’ and ’force’ are deduced from the statements of the complainants.

• The EAW fails to include any reference to the mental element of Julian Assange at the time, which is the crucial element in English Law determining whether the conduct was an offence. It would have to be proved that complainant AA did not consent and that Julian Assange did not reasonably believe that complainant AA was consenting.

• It is reasonable to believe that Julian Assange believed she was consenting because she allowed him to remove her clothes and laid down on her back and when Julian Assange asked why she was squeezing her legs together, she replied that she wanted him to put on a condom, and he agreed to do so.

• From the information provided in the original complaint and the EAW this would not constitute an offence under English law.

’Claimed Offence 2: Sexual Molestation’ (claimed equivalent offence in English law: rape and sexual offences, Sections 1 and 2 of the Sexual Offences Act 2003)

This is the ’broken condom’ allegation.

"On 13-14 August 2010, in 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 sexual intercourse with her without her knowledge."

• English law on sexual offences relies on the existence of consent. It would also require that the defendant intentionally deceived the complainant on the nature and purpose of the act. Agreeing to the act of intercourse constitutes consent according to English law.

• The failure to wear a condom when the complainant had insisted on this is not sufficient to amount to rape in English law, and there is no lesser offence.

• Even if English law had recognised conditional consent (in this case conditional on Julian Assange using a condom), in this case it is reasonable to believe that Mr. Assange was unaware that the condom had broken. He may have reasonably believed that he was complying with her condition.

• From the information provided in the original complaint and the EAW this would not constitute an offence under English law.

’Claimed Offence 3: Sexual Molestation’ (claimed equivalent offence in English law: sexual assault, section 3 Sexual offences Act 2003)

"On 18 August 2010 or on any of the days before or after that date, in the home of the injured party [AA] in Stockholm, Julian Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity; that is, lying next to her and pressing his naked, erect penis to her body."

• The EAW does not give any indication of the two elements that are crucial to determining criminality: that complainant AA did not consent to the touching and that Julian Assange did not reasonably believe that A consented.

• Julian Assange may have reasonably believed that complainant AA would have no objection to his advances, given that she had done so previously and continued to share a bed with him for almost a week, and she had not asked him to leave until the 18th.

• From the information provided in the original complaint and the EAW this would not constitute an offence under English law.

’Claimed Offence 4: Rape (mindre grov våldtäkt/minor rape)’ (Claimed equivalent offence in English law: rape)

"On 17 August 2010, in the home of the injured party [SW] in Enköping, 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."

Note: For the description of this allegation in the original police interrogation, and an explanation of the definition of rape in Sweden, see Sexual Offences.

• There are different ’versions’ of the state of the complainant at the moment of penetration: ’half asleep’ or sleeping (lightly, as opposed to deeply according to the prosecutor).

• When she awoke to find his penis inside her vagina, she decided to let him continue even though she knew that he was not wearing a condom.

• Section 75 of the 2003 Act has a ’rebuttable presumption’ of non-consent in various situations - including "The complainant was asleep or otherwise unconscious at the time of the relevant act".

• Even if it was established that the complainant was asleep, complainant SW had previously in the night (before the alleged rape) engaged in several sexual encounters. In one of them, she had seen that Julian Assange had not worn a condom properly but ’let it be’.

• These surrounding circumstances make it quite plausible that Julian Assange may have reasonably believed she was consenting, even if he did penetrate her when she was asleep (if that is established).

Original documents from the police questioning

The testimony of complainant AA, SW and Julian Assange with regards to these events are available online in English. The original Swedish document is available here. The original testimony from the nine witnesses is available here.