Author Naomi Wolf and Women's Advocate Jaclyn Friedman debated this issue rather contentiously on Democracy Now this week.
The tangled web of allegation and counter allegation in this case isn't completely illuminated in the back and forth between Naomi and Jaclyn, but they do highlight how two people can look at the exact same matters of fact in the record and come to two completely different outcomes, even with the best of faith.
The First paper to reveal the details of the allegations was the Guardian last Friday on Dec 17th. According to reporting from the Guardian, which reviewed the police reports and also talked to a associate of both Assange, the first complainant is referred to as "Miss A".
Apparently this all occurred during a trip to Sweden which had been arranged for Assange by Miss A. The same woman also arrange for Assange to stay in her flat as she had planned to be away during that time. But she didn't stay away, she returned only two days after Assange had arrived on his 10-Day trip and they had dinner and return back to the flat together on Friday August 13th.
Things grew affectionate and physical between them, and her account to police was that he was aggressive - but not abusive. She did not object or tell him "No" until she realized that he intended to have unprotected sex, she attempted to reach for a condom but he was allegedly "holding her arms and legs down" to which she objected - at which point he reluctantly agreed to wear a condom. They proceed to have consensual sex. Her contention is that the condom failed or broke, and she argues that he "did something to it" to cause it to fail. Assange disputed this in his eventual statement to Swedish police, and that he continued to sleep in her bed - with her present - for the almost a week without her bringing up the subject of a broken condom.
The next day, Saturday, Assange met the second woman involved - Miss W - who had asked to attend a Seminar by Assange arranged by Miss A. Miss W and Assange had lunch later that day, and attended a movie that afternoon together where she and Assange grew affectionate in the back row.
Apparently, rather than discuss the broken condom issue with Assange himself, Miss A complained to friends about it during a party she threw for Assange at her flat on Saturday Evening. And to another friend she said that her sex with Assange was "the worst sex ever. Not only had it been the world's worst screw, it had also been violent." But she didn't call it "Rape". Assange remained in her flat, she simply no longer had sex with him.
On Monday Miss W called Assange, met with him and took him back to her flat which was near Stockholm. They began to initiate sex, but she protested since it was unprotected. Assange lost interest, they stopped and both of them fell asleep. But they later both woke up and began again. She brought up the condom again and reluctantly, Assange agreed to wear a condom. They had consensual sex.
The next morning, Tuesday, Miss W got up and made breakfast then layed back down in bed with Assange. She then fell (half) asleep according to the Guardian Report, but woke up to Assange having unprotected sex with her. The Guardian reports what she later told police about their interchange.
She had awoken to find him having sex with her, she said, but when she asked whether he was wearing a condom he said no. "According to her statement, she said: 'You better not have HIV' and he answered: 'Of course not,' " but "she couldn't be bothered to tell him one more time because she had been going on about the condom all night. She had never had unprotected sex before."
She didn't tell him to stop, or to get a condom - but there is a legitimate question as to whether she fully "consented" to this second sexual contact since she wasn't fully awake when it began. It also could be argued that this was in the morning, after she'd already gotten up and had breakfast, not in the middle of the night and Assange may or may not have even realized that she had fallen back asleep.
So what we have are two issues - 1) Whether Miss A was "held down" and the condom failed or was "sabotaged" on Friday Night and 2) whether Assange deliberately had unprotected sex with Miss W on Tuesday morning while she was semi-asleep and unable to protest and stop him before things went past the point of no return, even after they'd already had consensual protected sex the previous evening.
I'm not sure I really know the answer to those questions, because the answer changes based what assumptions your making in terms of either Assange's intent or the Women's responsibility to make sure they made clear their lack of consent to continue. Is "Yes" still "Yes", even after you've debated into it? Is it "Yes" if you've been tricked? Did he try to stop Miss A from reaching the condoms, then break it on purpose? Did he take advantage of Miss W being asleep deliberately so he could avoid the entire condom argument once again? Were these two incidents simply a matter of happenstance or were they part of a pattern and practice on the part of Assange to duck, dodge and override his various partners consent for unprotected sex?
Is it Rape even if he did both these things when both women ultimately consented?
Is it Rape if they consented to the sex, but not to sex without protection?
My feeling is that this case, if fully vigorously perused could go either way depending on the testimony and credibility witnesses, but at this point in time I'm not comfortable that what I've read from the Guardian completely and various opinions really answer all those questions satisfactorily.
Anyway, after all the action was technically over, Miss W called Assange, and asked him to take an STD test which he initially refused saying he "Didn't have time". She herself had taken a "morning after" pill and had an STD test.
On Wednesday Miss A told a third party, a Swedish Wikileaks coordinator they refer to as "Harold" that she was distressed that Assange was still staying at her flat. She had taken to sleeping on the couch, and after further sexual advances by Assange, sleeping at a friends. Harold - who apparently talked to the Guardian directly - confront Assange on Thursday, who said he knew nothing about the issue with the broken condom and had not even been asked by Miss A to leave the flat.
On Friday Miss W texted Miss A looking for Assange and it's at this point where the two women eventually talked to each other and compared notes that things truly escalated. Miss A then called Assange on Miss W's behalf and demanded that he take the STD test and threated him with going to police if he didn't. He refused, considering that "blackmail", but he eventually relented that evening and tried to find a clinic, unfortunately they had closed for the weekend. She also confronted him, finally, about the torn condom and he denied that he'd done it on purpose. After this conversation Miss A complained to the police, but they told her they couldn't make Assange take the test and that the complaint would have to go to a prosecutor.
That night the story - somehow - leaked to the local Swedish Press and by Saturday morning Assange was being confronted with reporters questions about it, by which point Assange was in "Lawyered Up" mode.
His attorney's have intimated that the women may have colluded either to punish him, extort him and sell the story for profit (based on some of their text messages), and that this was some kind of "dirty trick" to attack him and undermine the legitimacy of Wikileaks. Assange did speak eventually to the police, but they only asked about the incident with Miss A, not about Miss W.
In the course of four days this guy has hooked up with two women and had sex with both of them. He reluctantly agreed to have Protected Sex per their request the first two times but there was a problem with the condom the first time causing the protection to fail, and the 3rd time it was the woman who reluctantly agreed to have - or continue having - unprotected sex. He didn't "force" either of them to do anything.
The real sticking point in all of this was Assange's initial dickish refusal to go take an STD test and I have to seriously wonder that if he'd done that immediately, then there never would have been a police report filed in the first place. Miss A only used it as threat, and only went through with it because his refusal - it's clear she only wanted the police to coerce him to take the test.
I do take this seriously, but while reading through all of it I was sometimes reminded of an episode of Judge Judy. IMO there seems to be a lot passive aggressive actions by Miss A. Rather than confronting Julian days earlier over what she didn't like about his behavior she went through third parties like her friends at the Party and then Harold. She didn't ask Assange to leave, instead she slept on the couch, then at a friends. Finally she tried to use the Police to get what she wanted. Jaclyn argues that this behavior is common for someone who is 'scared and traumatized' by the initial experience (behind held down) and she may have a point, I'm not an expert on these matters. It just seems to be me this could have all be resolved in a far more adult manner, if everyone involved had behaved like adults.
Assange eventually left Sweden and was scheduled for a follow-up interview with a prosecutor in October but he didn't go. An international warrant was put out for Assange, but at this point I'm unclear as to whether this is simply an attempt to get him to have the second meeting with the prosecutor, or whether there's actually an judicial warrant for him based on the complaints. (Edit: According to Amy Goodman's report, there is no warrant for his arrest - so this is all about the prosecutor trying to get his own interview with Assange)
His defense attorneys have argued that neither woman has alleged rape or sexual assault, both of them admit that their sex was consensual - the entire dispute seems to be about how and why the first condom failed and the STD test. They contend the issue of initiating sex while Miss W was asleep doesn't seem to be something she's complaining about, only the STD test - however the British extradition order mentions both this and "holding down" Miss A.
Jaclyn and Naomi agree that the level of pursuit of Assange is politically motivated and far more aggressive than the norm for Swedish justice - they disagree on their interpretations of the allegations, but not on this.
I'm not certain how a Swedish Judge or Jury would treat this issue, but as to why Assange is reluctant simply to return to let Swedish authorities take him into custody for another interview - Naomi lays that out in great detail.
NAOMI WOLF: Well, I mean, what I’m interested in is equal justice and the rule of law. And so, I do believe that everyone who’s accused of a serious crime needs to know that they are acting without someone’s consent. So I’d like, going forward, for—you know, I think it’s incumbent upon people to express to each other if they are consenting or not. And so, to me, I agree that there should be a hearing, obviously. But I think it should weigh very seriously, as it does for me, reading these, as a supporter of rape victims, as a crusader on the issue of rape—it is important that I don’t see anywhere these women expressing a lack of consent. In fact, I see them indicating consensual willingness to engage in sex, consensual willingness to engage in sex without a condom. I see that from the record. So, to me, an impartial hearing would be ideal, if improbable.
And I have to say, I think we are being naïve. And I am kind of reluctant to be drawn into this side of the debate, because the larger picture is, why is the guy resisting coming back to Sweden? He’s resisting coming back to Sweden the way any journalist would, because in Sweden they will extradite him to the United States, where he is facing, you know, prolonged isolation, like Bradley Manning, which drives people insane, according to human rights activists. He’s facing being called an “enemy combatant” by some of our most senior political leaders, which would mean that they could ship him to Guantánamo, you know, where they’re still torturing people, where they’re still holding people in kangaroo court conditions, where there’s still—you know, people are dying mysterious deaths in Guantánamo, even in Obama’s Guantánamo, where he’s facing abuse or mistreatment of hideous kinds and the possibility of never having due process, because we now have, you know, a banana republic situation off the coast of Cuba, where people can get lost in a black hole, where their innocence or guilt doesn’t matter. And so, to be talking about, you know, these discussions about these complaints—you’re right that they’re not charges—without putting it in the larger picture of he’s not every guy who doesn’t want to go back to where women have accused him of sexual impropriety. He’s a guy who, if he goes back, is going to lose his freedom and his life, because he’s being made a scapegoat and a martyr, you know, on behalf of journalists everywhere by the most powerful government on earth, that doesn’t want whistleblowers shining any kind of light on their wrongdoing, even as they continue to surveil us, wiretap us, break the Fourth Amendment every single day. So, I think we have to keep that larger picture in mind.
I would like justice to be done. I would like a hearing. But I would also like my country to behave according to the rule of law and my country to stop acting like a global bully, you know, intimidating other nations and other judicial systems, which is clearly what happened here, into bullying and intimidating journalists, because, believe me, Amy, if he is taken into custody, if he is prosecuted under the Espionage Act, which closed down dissent in this country for a decade, and he’s made an example of in this way—wrongly, because he’s the New York Times, not the Daniel Ellsberg in the case; he is just the publisher—then you and I are not going to be safe doing our jobs as journalists any longer.
It should be noted that there's more than a spec of truth to Naomi's complaints about the treatment of Bradley Manning. One of his friends whose apparently been the only person to talk to him while he's been in solitary confinement for the last several months states that the Pentagon has been lying about his treatment. He isn't getting any exercise, and his mental state appears to be deteriorating.
Now just as I think it's wrong to dismiss the complaints of these women out of hand because of the political aspect of this, I also think it's wrong to dismiss how completely out of character the prosecutor is behaving so far when no charges have been filed against Assange - and there may indeed have a political component even if Assange himself may seem prone to a certain level of grandiosity and paranoia.
We already know, from the information that actually has been released by Wikileaks that the U.S. State Dept has interviened and threated countries like Spain with Diplomatic Sanctions in order to shutdown their investigation and prosecution of various Bush Administration Officials or Torture and War Crimes.
Soon after the request was made, the US embassy in Madrid began tracking the matter. On April 1, embassy officials spoke with chief prosecutor Javier Zaragoza, who indicated that he was not pleased to have been handed this case, but he believed that the complaint appeared to be well-documented and he'd have to pursue it. Around that time, the acting deputy chief of the US embassy talked to the chief of staff for Spain's foreign minister and a senior official in the Spanish Ministry of Justice to convey, as the cable says, "that this was a very serious matter for the USG." The two Spaniards "expressed their concern at the case but stressed the independence of the Spanish judiciary."
Two weeks later, Sen. Judd Gregg (R-N.H.) and the embassy's charge d'affaires "raised the issue" with another official at the Ministry of Foreign Affairs. The next day, Zaragoza informed the US embassy that the complaint might not be legally sound. He noted he would ask Cándido Conde-Pumpido, Spain's attorney general, to review whether Spain had jurisdiction.
So if U.S. Officials can push a Spanish case they don't find politically convenient to be dropped, what exactly is there to stop them putting pressure on a Swedish prosecutor to lean hard on the case against Assange after the Vice-President has called him a "High Tech Terrorist", when Mike Huckabee has called for him to be "Assassinated" - as if we should have a drone strike authorized for the midlands of England - and the Pentagon may be leaving Manning in solitary confinement simply to pressure him to give up information on Assange?
Sometimes when you think people are out to get you, you're not paranoid - you're just paying attention.
Clearly the women should be taken seriously, although neither is alleging rape, that legal threshold just might have been crossed - but let me repeat Charges Against Assange have not even been Filed. His conviction is questionable as I still doubt whether either woman would even be willing to testify after this has blown up into an international incident, apparently one of the women has retreated to Palestine. Be that as it may, Assange's allegations of political manipulation and warnings of extra-judicial murder, kidnapping and detention in retaliation for his information releases should be taken seriously too.
At the very least Assange is a bit of a Dick in my opinion not only for delaying getting an STD test but for also hooking up with two women within days of each other who were apparently friends and were bound to talk to each other, however just because you are an ass-nozzle in your personal life doesn't mean that the people out to get you for political reasons are necessarily "Heroes." And sometimes even an self-aggrandizing Dick with a Bond Villain Fetish can do something Heroic like expose the crimes committed under the guise of flexing America's foreign policy and military muscle.