The Julian Assange Case, Consent, And Rape

Jessica Valenti takes to The Washington Post today to use the reaction to the Swedish rape charges against Wikileaks founder Julian Assange as signs of what she sees as the archaic nature of America’s rape laws:

Now, we don’t know if Assange is guilty or innocent – but we do know that the accusations against him have been badly reported, misconstrued and generally pooh-poohed. In the same way that Assange’s document dump held a mirror to U.S. diplomacy, the accusations against him and the subsequent fallout reflect our country’s overly narrow understanding of sexual assault, and just how far we are from Sweden’s legal standard.

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.”

What Valenti doesn’t acknowledge, however, is that our criminal laws are written with two things in mind.

First, of course, there is the idea of prohibiting acts that cause harm to people’s lives, liberty, or property and rape certainly falls within that category. Moreover, up until the 1980s or so it was largely the case that rape was not treated as a serious crime by some in law enforcement and that women who were raped were often subjected to demeaning cross-examination by defense attorneys in which their previous sexual history was made an issue in an effort to discredit them as, basically, loose women who had it coming. In response to that, states started passing rape shield laws and other laws that made it difficult to make previous sexual history an issue in a rape trial except under very limited circumstances. Additionally, it is now nearly universal that the identity of a rape victim is kept out of the press, although many have made the legitimate complaint that there is no similar policy for someone accused of rape who is, after all, innocent until proven guilty.

The second factor that has influenced the drafting of our criminal laws, though, is related to that last point. Not only is someone considered innocent until proven guilty, but there is a principle of law called “void for vagueness” that essentially requires that criminal statues make it clear what it is that is forbidden. In Connally v. General Construction Co., for example, the Supreme Court said:

That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law, and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. International Harvester Co. v. Kentucky, 234 U. S. 216, 234 U. S. 221; Collins v. Kentucky, 234 U. S. 634, 234 U. S. 638.

There is a real danger that the “withdrawal of consent” standard that Valenti and others like her would like to see implemented in the United States would result in laws that are so vague that it would be impossible for a reasonable person to know that they’re committing a crime, especially when the question of whether or not a crime was committed boils down to a “he said/she said” scenario. Such a law may be considered valid under Swedish law, but I think it would pose serious problems here in the United States, as would other proposed changes of which Valenti writes approvingly:

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.

Again, that may be a change in the law that would be perfectly compatible with the Swedish Constitution. In the United States, however, such a change would essentially mean that every person accused of rape would be considered guilty until they proved themselves innocent, and that any person who has sex is in danger of being accused of rape. Not only is that a perversion of what Americans consider a sense of justice, it also strikes me as demeaning the entire concept of rape to the point where serious offenses won’t be considered serious anymore because they’ll get lumped in with the “drunken college party” scenario. There may be problems with both incidents, but to rewrite the law and pretend that they are exactly the same strikes me as unjust, stupid, and immoral.


Doug Mataconis

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