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Jill has been blogging for Feministe since 2005.
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280 Responses

  1. Linnea
    Linnea December 6, 2010 at 2:32 pm |

    Being a Swede, I can say that there is no such law as “sex by surprise” in Sweden. It is slang for rape, a word with a positive connotation so that people can joke about rape, making the word in itself very inappropriate. Assange is charged for rape, sexual harassment and duress.

    I wrote a blogpost about it here where I also address the popularity contest. AOL News described the woman as a radical feminist who has written a treatise on how to get avenge on men. Unfortunately I think this whole business is turning into a contest of characters where people connect Assange with what good he has done for people through Wikileaks and that because of this they cannot possibly imagine that he would rape anyone. Besides, the thinking seems to follow, a radical feminist just cannot be raped, it has to be made up.

  2. Melissa
    Melissa December 6, 2010 at 2:43 pm |

    Here’s what I don’t get:

    Why is it taken as common knowledge that it’s horrible and manipulative and evil for women to say they’re on the pill when they’re actually not…but all in good fun for a man to say he’s using a condom when he’s actually not?

  3. gretel
    gretel December 6, 2010 at 3:03 pm |

    Good post. This reminds me of the sensationalist media storm around Antioch College’s consent rules regarding sexual assault during the 1990s. The idea of consent seems to be immediately ridiculed and tossed aside. Of course it’s extremely complicated territory, but it’s at least worth a conversation and not what turns into prude-shaming. (And I’m not saying anyone is a prude, it’s just that media narratives around women either focus on “prudes” or “sluts”.)

  4. Comrade Kevin
    Comrade Kevin December 6, 2010 at 3:10 pm |

    Responding to what Melissa said, I have to say that there’s this kind of laddish, dudebro culture which takes some kind of delight in deceiving women by saying they’re using a condom when they’re not, actually. It’s a means of retaliation. I wanted it, she wouldn’t give it to me, so now I’ve got the last laugh. Childish, yes.

    These are the same people inclined to use that awful trifecta of “slut”, “bitch”, and “whore”. There’s also a belief that women are too uptight about potential pregnancy and that men deserve to have sex. So it’s a privilege thing, to a large extent.

  5. Kristen J.
    Kristen J. December 6, 2010 at 3:14 pm |

    This actually something I’ve been meaning to write a non-post about so that I can link to it every time these discussion come up. This defining rape issue drives me bat shit crazy because we don’t delineate the context. The statutory (or common law) definition of rape, is not a definition of rape. Its a definition of when someone can be held criminally or civilly liable for rape. Similarly, the sex without consent is a model for discussing the ethics of sexual interaction. Its rape from an ethical stand point. When we start confusing these two contexts (or confusing these contexts with an empathetic discussion of the impact of rape), the result is derails, confusing and typically further support of rape culture.

    The media bs surrounding this case exemplifies the problem. There is a difference between saying this asshole committed an action for which he will go to jail, this asshole did something immoral, and this woman was harmed. But rather than acknowledging the difference in context and meaning and equate all three. Which is annoying and ridiculous.

  6. Uzza
    Uzza December 6, 2010 at 3:18 pm |

    The actual details aren’t hard to come by at all: Assange published things the US govt. didn’t like.
    The only question about it is whether he will still be alive a year from now.

  7. gretel
    gretel December 6, 2010 at 3:44 pm |

    Kristen J.: This actually something I’ve been meaning to write a non-post about so that I can link to it every time these discussion come up.

    If you write it, I will link to it, because your writing made my heart beat a little faster. Very eloquent. I’m jealous.

  8. gretel
    gretel December 6, 2010 at 3:45 pm |

    Did you read Jill’s last paragraph? This is not the point. I have a lot of opinions about what Assange did/didn’t do, but I don’t think they belong in this comment thread.

    Uzza: The actual details aren’t hard to come by at all:Assange published things the US govt. didn’t like.
    The only question about it is whether he will still be alive a year from now.  

    1. Cara
      Cara December 6, 2010 at 3:58 pm |

      Now Gretel, be fair: not reading the paragraph and purposely ignoring it are two completely different things!

      Uzza, you’ve been warned. Any further comments along these lines either from you or anyone else will be deleted. As Jill said, they’re not what the post is about. Back on track please, folks.

  9. Sheelzebub
    Sheelzebub December 6, 2010 at 3:51 pm |

    Didn’t you know, Gretel? Rape is so easy to prosecute! /sarcasm

  10. Jim
    Jim December 6, 2010 at 4:04 pm |

    1. I don’t get what is so hard to get about this being non-consensual. The agreement required a condom, either he used one or not – it all comes down to whether or not he met the conditions and whether or not they had sex. Seems pretty straightforward to me.

    2. “(It’s also worth pointing out that the charge is actually a quite minor one in Sweden, and the punishment is a $700 fine). ”

    That’s pretty surprising, considering the consequences could be an unwanted preganacy or HIV infection. I mean, OK, light sentences for really bad crimes are not uncommon, but this is still surprising.

  11. Hugo
    Hugo December 6, 2010 at 4:15 pm |

    I do not agree with all of the points in this article but it does summarize the famous John Z case which made California precedent: consent can always be withdrawn, including after intercourse has begun. Failure to cease intercourse after consent is withdrawn is, in California, legal rape with penalties far more severe than a $700 fine.

    I often raise this case with my students to remind them that there is never a point past which consent cannot be withdrawn.

  12. Linnea
    Linnea December 6, 2010 at 4:19 pm |

    Jim: ”That’s pretty surprising, considering the consequences could be an unwanted preganacy or HIV infection. I mean, OK, light sentences for really bad crimes are not uncommon, but this is still surprising.  

    Sweden believes more in rehabilitation and second chances. A lot of the sentences in Sweden are way too lenient considering the crime. Most rape crimes are like this, but also a lot of sexual assault cases. I’m just as surprised as you sometimes. It is as if, somewhere, rape is not taken seriously as a crime.

  13. matlun
    matlun December 6, 2010 at 4:47 pm |

    I agree that speculating in whether Assange is guilty is pointless since we do not have enough information. But just to clear up some issues

    * “Withdrawal of consent should be grounds for a rape charge”
    It is in Sweden (there has been at least one successful rape prosecution where the woman withdrew consent during the act)

    * “(It’s also worth pointing out that the charge is actually a quite minor one in Sweden, and the punishment is a $700 fine).”

    This is not true. This refers to the lesser charge of “ofredande” (Swedish term which I believe corresponds to “molestation” (but IANAL)). The rape charge is (as expected) a serious issue.

    The story after the women left their testimony to the police was:
    * A prosecutor decides that the alleged actions constitutes rape and starts an investigation.
    * Within a few days the chief prosecutor decided that there is no grounds for a rape charge and dismisses this charge. The only remaining charge is the lesser “ofredande” (molestation?)
    * This decision is appealed and the rape investigation is reopened by a new prosecutor.
    * The new prosecutor goes to the district court with this charge. The court decides to approve the arrest warrant.

  14. Linnea
    Linnea December 6, 2010 at 4:48 pm |

    Hugo, thank you for the John Z case. I was able to use it in a comment made in another place.

  15. Outlandish Josh
    Outlandish Josh December 6, 2010 at 4:52 pm |

    Agreed in spirit. My only quibble is that “the primary media narrative about this case” is not about sex-by-surprise. That doesn’t appear in any media reports I’ve seen, just on crazy fringe blogs.

    The primary media narrative is “crazy rapist hacker is on the run from the law.”

    Which is a problem. Historically, this is one of the primary ways governments deal with opposition.

  16. Politicalguineapig
    Politicalguineapig December 6, 2010 at 5:44 pm |

    Is rape ever taken seriously as a crime? Anywhere?

  17. JP
    JP December 6, 2010 at 5:47 pm |

    Outlandish Josh: The primary media narrative is “crazy rapist hacker is on the run from the law.”

    That is certainly the impression left by, say, the NYT or MSNBC in its mid-day programming (while Fox prefers to day-dream about sicking predator drones on whatever English village Assange is hiding in). Jill’s diagnosis of the major US media narratives would be spot on in most cases, but it simply does not apply to this case, for obvious political reasons.

    That said, it is still beneficial to push back on the idea that continuing a sex act after consent has been withdrawn is not rape (regardless of whether it is legally considered such in a given jurisdiction), even when the idea is momentarily not mainstream. Defending Assange at the expense of women everywhere is unacceptable. At any rate, there are plenty of things to find very troubling about this case without doubting that the act, if perpetrated, would have been rape (possibly troubling enough to suspend the presumption that rape victims are not likely to confabulate).

  18. auditorydamage
    auditorydamage December 6, 2010 at 6:06 pm |

    The words “enthusiastic consent” come to mind. Failing to wear a condom after promising to do so definitely violates that principle, and doing something that one partner did not consent to is assault.

    I wonder how many people attempting to minimize the alleged acts as something less than assault could be made to understand why the acts are, in fact, rape and assault, and how many would continue to insist otherwise even when presented with an appropriate hypothetical example situation. Short version: is the problem affecting pundits and commenters lack of understanding, cognitive dissonance, or a conscious double standard?

  19. Terri
    Terri December 6, 2010 at 6:12 pm |

    Outlandish Josh: Agreed in spirit. My only quibble is that “the primary media narrative about this case” is not about sex-by-surprise. That doesn’t appear in any media reports I’ve seen, just on crazy fringe blogs.

    The primary media narrative is “crazy rapist hacker is on the run from the law.”Which is a problem. Historically, this is one of the primary ways governments deal with opposition.  

    I guess if you consider Reddit, DKos, AOL, etc., to be “fringe.”

    I love how a post about consent on feminist blog lasted a whole 15 comments before the first explicit “but it’s just propaganda!” comment.

  20. anon
    anon December 6, 2010 at 6:39 pm |

    OK, so that happened to me once – a guy I slept with said he would use a condom and then didn’t, and I didn’t know he hadn’t put it on. It sucked, but it wasn’t assault. I left, went to the pharmacy, got Plan B, and went home. I would have never filed charges. Never saw the guy again, anyway.

  21. nathan
    nathan December 6, 2010 at 7:26 pm |

    Terri,

    The thing is, historically, trumped up charges like this have been used to ruin people like Assange, so that has to be taken in consideration. I don’t know if Josh intends to dismiss the rest of the conversation with his comments, but you seem to be dismissing the possibility it is, indeed, propaganda.

    That said, I fully agree that media discussions of rape are totally inadequate, and the way court systems and the law handle cases is often miserable as well. As a survivor of sexual assault myself, it’s extremely frustrating to hear the same tired narratives about rape being solely about force, which certainly wasn’t my experience, nor that of many others I have talked to or read about. I support a shift towards a more consent based legal structure, and believe that if Assange crossed that line, he should be held accountable.

    I just wonder how to get to the truth in this case. A month ago, many of us probably had never heard of this guy. Now you have everything from elected officials calling for his murder to people calling him an infallible hero. The two women and their cases seem like just pawns in this story, which is really disappointing. Because even if the stories aren’t true, the way they are being reported is just adding to the challenges facing survivors of rape everywhere.

  22. tinfoil hattie
    tinfoil hattie December 6, 2010 at 8:07 pm |

    Feministe! You crazy fringe blog, you!

  23. Opheelia
    Opheelia December 6, 2010 at 8:31 pm |

    In the US, we are horribly unskilled at condom negotiation as a whole. We don’t teach people how to talk about STI testing or contraceptives, and as a result, the conversation is often reduced to, “You’re on the pill, right?” or “Do you have a condom?” in the heat of the moment, without room for discussion about how not having a condom or not being on the pill might change the situation. I think that our lack of ability to have honest conversations about sex has heavily influenced the discussions in this case. It’s beyond a lot of people’s experiences to negotiate condom use, so it’s easier for us to say that it’s not rape if the man doesn’t abide by the terms.

    And of course, our pervasive ideas about what rape is (stranger in a dark alley coming at you with a knife) have hampered conversations about the more realistic picture about perpetrators. If we have trouble considering that yes, women are raped by their husbands and their boyfriends, then it’s not surprising that we have trouble with the concept of withdrawal of consent.

  24. Brian Gerald
    Brian Gerald December 6, 2010 at 8:47 pm |

    I never thought of it this way before: “But the concept of withdrawing consent seems to be a little tougher for folks who think of sex as something women give to men (or men take from women); it’s definitely a tougher concept for folks who think that sex inherently sullies women. I suspect that the thought process goes, If the damage (penetrative sex) has already been done, then the situation can’t possibly turn into a rape, because the initial penetration itself occurred consensually, and it’s that penetration that’s the basis of the harm in any rape case. Consent, in that framework, isn’t the point.”

    Thanks for calling out that framework.

  25. Doug Johnson Hatlem
    Doug Johnson Hatlem December 6, 2010 at 8:54 pm |

    Okay, I’m a white male who is a strong supporter of what Assange is doing, but I also firmly believe in the heart of what this post is about. No means no and stop means stop, and anything else is sexual assault/rape. However, it is also true that the political circumstances have to be considered. The second woman, the one with the less serious charge, does, if media reports are to be believed, have a strong profile suggesting she could be a intelligence agent plant (the AOL story referred to above notes that she was once kicked out of Cuba as a subversive). So yes, this should be an occasion to talk about switching to consent based models of rape/sexual assault, but the counter-narrative (that an intelligence agent slept with him to make the first woman jealous and then coaxed a charge from her as well) really needs to be mentioned in every story about this because if Assange is being set up, then it’s one of the most disgusting things ever since something like one out of every eight sights that pops up when you google “rape” now includes Assange’s name.

  26. Doug Johnson Hatlem
    Doug Johnson Hatlem December 6, 2010 at 8:58 pm |

    Also, while I don’t think that AOL, Reddit, and Daily Kos are fringe, they certainly aren’t the “primary media narrative.” In fact, I think the primary media narrative on this aspect of the case is a bit in flux and will probably harden as the week unfolds.

  27. sacundim
    sacundim December 6, 2010 at 9:03 pm |

    I can definitely agree on the withdrawal of consent comments.

    I know the rest of what I have to say is going to sound a bit MRAish, but bear with me for a minute. I’m a bit concerned about the concept of consent conditioned on the use of a condom. I don’t really follow what argument is made here; I don’t know if the argument is about withdrawal of consent during the act because the man is not using a condom, or about invalidation of consent that was given at the time of the act because of the use of false assurances to obtain it.

    It really sounds like under one reading, a man could accuse a woman of rape if she falsely told him she was on the pill, arguing that his consent to sex was conditional on her use of the pill. That just doesn’t sound right.

    The difference between these two situations, to my mind, comes from the fact that women are made to bear the consequences of pregnancy far more than men, and that countless men enjoy and exploit this privilege that they have over women. I.e., the lie about using a condom usually has an element or overtone of maliciousness or violence that the analogous lie about the pill just falls short of; the woman who lies about the pill is probably still getting the short end of the stick no matter what. But I think that a pure consent-based framework seems to miss this gendered power asymmetry.

  28. Sandra Cuffe
    Sandra Cuffe December 6, 2010 at 9:06 pm |

    Hi,

    Just wanted to add a link to a post – “Leaked Cable #r?a?p?e?: An Open Rant Against the Perpetuation of Rape Myths” – I wrote yesterday about these issues. The second half of the post takes a closer look at some of the articles, authors and arguments setting the tone for the discussion. (ie, the disgusting post by Murphy, and a couple pieces on Counterpunch)

    saludos,
    Sandra

  29. Sandra Cuffe
    Sandra Cuffe December 6, 2010 at 9:09 pm |

    Kristen J.: This actually something I’ve been meaning to write a non-post about so that I can link to it every time these discussion come up.This defining rape issue drives me bat shit crazy because we don’t delineate the context.The statutory (or common law) definition of rape, is not a definition of rape.Its a definition of when someone can be held criminally or civilly liable for rape.Similarly, the sex without consent is a model for discussing the ethics of sexual interaction.Its rape from an ethical stand point. When we start confusing these two contexts (or confusing these contexts with an empathetic discussion of the impact of rape), the result is derails, confusing and typically further support of rape culture.The media bs surrounding this case exemplifies the problem.There is a difference between saying this asshole committed an action for which he will go to jail, this asshole did something immoral, and this woman was harmed.But rather than acknowledging the difference in context and meaning and equate all three.Which is annoying and ridiculous.  

    I hear ya! I wrote a non-post – http://vancouver.mediacoop.ca/blog/sandracuffe/5363 – so that I could just link or paste it whenever someone re-posts or forwards one of pieces of vile sexist drivel circulating with way too much frequency. Link away! :)

  30. Deekoo
    Deekoo December 6, 2010 at 10:03 pm |

    Melissa: Here’s what I don’t get:Why is it taken as common knowledge that it’s horrible and manipulative and evil for women to say they’re on the pill when they’re actually not…but all in good fun for a man to say he’s using a condom when he’s actually not?

    I take it as evil for a man to claim to be using a condom if he’s not, and clearly more evil than claiming to be on the pill when you aren’t – the change in risk between wearing a condom and not wearing a condom is greater than the change in risk between being on the pill and not being on the pill, and both are wrong. I don’t know if my attitude is representative of men in general (I would *hope* that it is, but I suspect that it’s not.)

    As far as I can tell, the charges are, in fact, considered to be crimes in many legal systems, not just Sweden’s. Are they as serious as condomless forcible rape? No. Does charging him imply that the Swedish government believes they are equivalent? No. Are they just innocent failures of self-control? No.

    The bit of the narrative that claims that the two women were initially willing to forgive, but changed their minds after talking to each other and/or after he refused to take an STD test is not actually unreasonable behaviour on the victims’ part – I can see someone feeling that doing this sort of thing ONCE was forgiveable, but doing it TWICE is a pattern indicating intent, and adding the additional pain of having to wait several months to find out whether or not he’s infected you with something would definitely be an aggravating factor.

    I find it odd that there are so few English-language references to the phrase ‘sex by surprise’ on the net – almost everything I found was either a reference to the Assange case or the kind of word-salad pornspam that will turn up on any search even tangentially related to sex. I have to wonder if perhaps AOL has fallen for a bizarre troll, given how poorly the lawyer they quote seems to be representing his client – but even if the media attention is being manipulated by trolls or propagandists, that doesn’t make his alleged actions acceptable.

  31. PrettyAmiable
    PrettyAmiable December 6, 2010 at 10:04 pm |

    @Linnea, thank you for confirming what I thought was probably true by the “sex by surprise” thing. As an assault survivor, it completely struck me the wrong way and I hoped that no country would every call rape “sex by surprise.”

    Then my country decided it wasn’t sexual coercion to make me expose myself to some woman in another room when trying to fly home for christmas and that it wasn’t sexual assault if the woman touching my genitals wore a blue uniform in an airport. So, you know, I guess I wouldn’t be surprised if somebody called it that in earnest, but it’s reassuring to know it’s just a byproduct of rape culture rather than actual governmental legislation. Kind of.

    Incidentally, I’ve heard it called “sex by surprise” in the US too in rape culture jokes.

  32. Outlandish Josh
    Outlandish Josh December 6, 2010 at 10:06 pm |

    As I said previously, I agree with the premise of the post. I did not mean to dismiss the rest of the argument. I didn’t mention it because I think it is correct. Consent can be withdrawn after intercourse has begun. No question about it.

    I should also qualify and not rely on shorthand so much. “Crazy fringe blogs” was tongue-in-cheek. I’ve been a fan and builder of such wonderful institutions for almost a decade (for instance, my uid on Dkos is 865) which means I love ‘em but I also have no illusions as to who sets the agenda in terms of public discourse. The 24/7 cable nets, AP and NYT call the shots here, not us.

    My concern is I don’t think there’s really much debate about withdrawal of consent, even among Assange’s defenders. Maybe I’m missing something, but I see the chauvinistic technomales wrongly giggling at the “sex-by-surprise” line are reacting more to the mismatch between the narrative we’ve all been fed and the reality of the allegations than they are seriously trying to promote the idea that “once you get the tip in she can’t say no.”

    Chauvinistic technomales being what they are, I have no doubt that someone somewhere has said exactly that. However, I’d wager it’s a slim minority opinion among Assange’s cohort. Hardline conservatives who believe sex makes women unclean want to kill this guy with a flying robot. They’re not really weighing in.

    But I think there’d be less giggling if the language used by “the predominant media narrative” over the past few months hadn’t been constructed to suggest the worst possible scenario while ignoring the specifics of the allegations. The decontextualized use of “molestation” instead of “sex-by-surprise” is probably the most troubling. That sets an expectation among English speakers that Assange was accused of abusing children. When they discover he’s accused of something that’s relatively less awful, the mental space creates, in some, a “haha crazy Swedes” reaction.

    Terri: Defending Assange at the expense of women everywhere is unacceptable.

    I hope that’s not the choice people believe they have to make.

    Possibly I react a bit personally to all this. Hey, you know, I think it’s important to suggest the counter-narrative which supports the (to me, kinda obvious) notion that this man is being persecuted. However, I’m highly uncomfortable with the implication — which I am not attempting to make — that his accusers are necessarily lying, or that what he’s accused, if true, wouldn’t be criminal.

  33. Ron Linville
    Ron Linville December 6, 2010 at 10:25 pm |

    It’s a shame that you even have to belabor the point. Living in NYS, I guess I naively assumed that consent was…umm… THE issue in rape/sexual assault. The ‘penetration’ standard is so wedded to the idea of woman as property ( brand-new or ‘ruined’). Isn’t it bad enough that the abortion issue drags us back to the twelfth century? Anyway, good piece.
    So I guess we’ll wait and see what the facts of this case are, keeping in mind that, regardless of how obnoxious or criminal Assange’s behavior might or might not have been, the bigger story is the exposure of gov’t lies and THEIR crimes; heroes can be shitheads too. I just hope that these charges aren’t somehow engineered to allow the US to get its hands on him.

  34. LC
    LC December 6, 2010 at 10:26 pm |

    Linnea,
    Thanks for clarifying some of the “sex by surprise” thing. That whole narrative (along with “sex without a condom is a punishable criminal offense in Sweden” things I have come across) was just utterly bizarre and made little sense to me. Glad to have someone on the ground confirm that’s not the case.

    I’ve already read letters to the editor comparing Assange to Christ, so I rather suspect your fears about it turning into a popularity contest are likely. (And I’ve also already seen the “even if it happened, it is minor compared to the important work he is doing” defense as well.)

  35. LC
    LC December 6, 2010 at 10:31 pm |

    Sorry. To return to the main thrust of the post, the fact that under a consent paradigm, this is a perfectly normal charge seems self-evident. That this won’t be reported that way remains tragic.

    Sandra, thanks for your post.

  36. Kristen J.
    Kristen J. December 6, 2010 at 10:41 pm |

    gretel: If you write it, I will link to it, because your writing made my heart beat a little faster. Very eloquent. I’m jealous.

    Or would have been if not for all the misspellings and grammar errors…Still, here it is:

    http://kristensnotablog.blogspot.com/2010/12/rape-defined.html

    Comments are more than welcome.

  37. bhuesca
    bhuesca December 6, 2010 at 10:51 pm |

    @Sacundim, Jill:

    I’ve been mulling this post over for a couple hours, and have a couple questions: Aren’t men vulnerable to STI transmission from women- isn’t this harm?

    More dramatically, say a man and a woman negotiate intercourse based on correct and present usage of the birth control pill. Say the man asks the woman if she is still taking the pill before they engage in intercourse. And what if she is NOT in fact on the pill, on purpose, because she wishes to conceive a child and does so? (Yes I know *creepy urban legend*)

    My point of bringing this up is that 18 years of child support/maintenance is truly a cost. And IF the negotiated condition of intercourse was her pill-taking, then could he state non-consent, and, therefore rape? And must a man pay child support to his rapist for the product of his rape, or is the ‘if you engage in PIV intercourse, you know that pregnancy just might happen despite the most fervent of actions?

    Sorry I debated on posting about this for a long time, but I don’t think it’s off-topic as it’s been referenced upthread.

    I’m really looking forward to any answers to my questions :

  38. bhuesca
    bhuesca December 6, 2010 at 10:51 pm |

    @Sacundim, Jill:

    I’ve been mulling this post over for a couple hours, and have a couple questions: Aren’t men vulnerable to STI transmission from women- isn’t this harm?

    More dramatically, say a man and a woman negotiate intercourse based on correct and present usage of the birth control pill. Say the man asks the woman if she is still taking the pill before they engage in intercourse. And what if she is NOT in fact on the pill, on purpose, because she wishes to conceive a child and does so? (Yes I know *creepy urban legend*)

    My point of bringing this up is that 18 years of child support/maintenance is truly a cost. And IF the negotiated condition of intercourse was her pill-taking, then could he state non-consent, and, therefore rape? And must a man pay child support to his rapist for the product of his rape, or is the ‘if you engage in PIV intercourse, you know that pregnancy just might happen despite the most fervent of actions?

    Sorry I debated on posting about this for a long time, but I don’t think it’s off-topic as it’s been referenced upthread.

    I’m really looking forward to any answers to my questions
    :)

  39. sacundim
    sacundim December 6, 2010 at 11:09 pm |

    Jill: Sacundim, I think that’s a fair comment, and I appreciate how you’ve phrased it — it doesn’t come off as MRA-ish.The difference, to me, is the bodily harm element.A man not wearing a comment when he claims to have been wearing a condom attaches a degree of bodily harm to his partner that doesn’t exist with birth control — it means she could get an STI, or become pregnant; it means that she wanted a physical barrier between their skin that was not there.That’s different, I think, than saying you’re protected from getting pregnant yourself when you aren’t.

    I guess the problem then is that this case can also be inverted. What if the man claims that he had unprotected sex with the woman on her assurance that she didn’t have an STD? That assurance could be deceptive (the woman knows she has an STD, and lies about it) or unreasonable (the woman’s grounds for believing herself to be STD-free are shaky).

    More interestingly, it could be both: the woman doesn’t believe she has an STD, but she deceptively gives stronger grounds for believing so than she does have (e.g., claims she had a test much more recently than she knows that she did). How do we differentiate the guy who lies about using a condom (who, I’ll further assume, believes himself to be STD-free) from the woman who gives unreasonable assurance that she’s STD-free? After all, they are both exposing their partner to bodily harm through deception.

    I apologize once more that this may be crass, unrealistic what-iffing of the sort MRAs engage in, but again, the point is that I think the “risk of bodily harm” standard for calling the condom lie “rape” is still problematic. And I think it’s problematic for the same reason: the reasoning strives to treat men and women as equals before the law while society at large treats them as de facto unequals. When we do this, we are led to concluding that victimization is a gender-independent function of who does what to who, when it’s just not the case. There’s a power asymmetry, which means that the more powerful party can victimize the less powerful one in ways that the latter can’t do to the former, even in otherwise analogous actions and situations…

    (That said, I do think there should be civil remedies for women lying about being on birth control — it would be almost impossible to prove, but if you can show that it actually did you real harm, ok, sue; but the standards for criminal punishment should be higher).

    I find it hard to believe that that wouldn’t turn into a nightmare of false accusations against pregnant women that they lied about being on birth control.

  40. Placebogirl
    Placebogirl December 6, 2010 at 11:20 pm |

    Bhuesca: I’m neither Sacundim, nor Jill, but I can attempt to answer your questions.

    1. Yes, men can catch STIs from women, but the pill does not prevent this, and as such a woman lying about being on the pill is not pretending to protect a man from STIs when she’s actually not.

    2. Your argument would (maybe) hold if the pill worked 100% effectively. It doesn’t. I suspect that if a woman was provably lying about being on the pill, then her partner is unlikely to be liable for child support in the US (though I am neither in the US nor a lawyer), but the “if you have penetrative sex you’re up for the risk of pregnancy” ideal exists because we do not have 100% effective birth control.

  41. Placebogirl
    Placebogirl December 6, 2010 at 11:21 pm |

    And as I would expect, while I was typing, Jill said it all far more effectively than I could.

  42. April
    April December 6, 2010 at 11:34 pm |

    If anyone wants to take the conversation to that other place, where we debate whether or not these charges are valid or whether or not they ought to be pursued given the circumstances, I wrote a short post on my blog for that purpose, because I’m interested in what other people think about this. Feel free to come on over.

    Also, great post, and I don’t have anything else to add because Jill pretty much covered it perfectly. I was actually hoping I’d see a post about this on Feministe, by Jill in particular, because of the legal issues and her mad skills analyzing legal issues. So thanks for the post!

  43. Whatladder
    Whatladder December 6, 2010 at 11:46 pm |

    I think there are a ton of issues here, and I agree that withdrawing consent is possible, and ignoring the withdrawing of consent is rape, but I am not sure we know that the withdrawing of consent was as clear as “STOP STOP STOP”.
    Jill suggests a number of grey areas in her post, but strangely, this is not one of them. The history of the case makes it look like the initial prosecutors decided it was too dependent on hearsay, and the second go around when Assange is in hot water makes the whole thing look convenient.
    I am not saying it didn’t happen, but I do wonder about the decisions to prosecute.

  44. Miss S
    Miss S December 7, 2010 at 12:23 am |

    In response ti Bhuesca-
    I recall reading that women were actually more vulnerable to STI’s from men because there are more places for an STI to penetrate (inside vaginal walls I suppose).

    Jill you mentioned that assault doesn’t happen if someone is bribed. Isn’t that referred to as coercion? So if someone agrees to use a condom, but does not, and the other person is unaware, would that be considered coercive? Or does the fact that it involves a body automatically make it assault? (Confused on the legalities).

    I think this is a bad case to highlight because there have been so many conflicting stories. That said, the idea that women will get carried away making rape accusations is pretty ridiculous to me. It’s not like women get carried away falsely accusing people of crimes that actually do get punished now- why would rape be any different?

  45. bhuesca
    bhuesca December 7, 2010 at 12:46 am |

    @Jill, Placebogirl –

    Thanks! So just double-checking, if a person only consents to sex because of a condom (not hormonal BC) and then a condom (but not hormonal BC) is purposely not used, consent has not really happened, but if the issue is not condoms, the issue of withdrawal of consent due to non-usage is not equivalent? Oy what a sentence…just want to be totally sure…sorry for needing to come back to this!

  46. bhuesca
    bhuesca December 7, 2010 at 12:52 am |

    *i want to clarify that the reason for my above question is because I want to parse the Arab/Israeli “rape by deception” with this post’s topic for a potential post. BH

  47. sadie.sabot
    sadie.sabot December 7, 2010 at 1:16 am |

    Politicalguineapig: Is rape ever taken seriously as a crime? Anywhere?  

    Well, sure. In the South of the USA it sure was; all it took was a hint of rape and you’d have a lynching on your hands.

    The way rape is viewed, in this country at least, is so dichotomous. It’s grounds for killing if the alleged victim is white and the accused is not; on the other hand, the “justice” system clearly punishes women for stepping forward when they have been raped.

    The dialogue around this particular situation is troubling. On the one hand there’s the typical belittling of rape accusations and focusing on superficial things about the accusers; on the other hand, it seems to also fit the profile of rape accusations being used politically. ugh.

    It seems like the laws and cultural norms and agreements about sex are quite different in Sweden, and most of the things I’ve read are interpreting the situation through a US centric lens, making it hard to know what’s real.

  48. Kristen J.
    Kristen J. December 7, 2010 at 1:34 am |

    bhuesca, Jill and Placebogirl,

    I think this consent question depends on which perspective you’re looking at this from. If some seriously and explicitly said I will not have intercourse with you unless you are wearing a Bugs Bunny costume (and let’s imagine for a moment that the person conditioning their consent cannot determine whether their partner is wearing the appropriate costume), then there was no consent. If we, as feminists, truly believe in a person’s agency then failing to wear the costume and engaging in intercourse is unconsented intercourse, rape. Period.

    Birth control (among other things) gets fuzzy because there may be an element of coercion to non-disclosure or coercion in the act itself. But in protecting, say, DV victims who may hide their contraceptive use for their own safety we are undermining the clear principles which are needed to protect that same person on different circumstances.

    Failing to meet a condition, when consent is conditional is commiting rape. Failing to meet a condition because you are under threat is not committing rape.

  49. Mike
    Mike December 7, 2010 at 1:37 am |

    Thanks for writing this down. This has been on my mind more and more as I’ve seen so many Assange worshippers belittle the crime of rape this week. Like you, I have no idea what happened, or even if the whole thing is a set up or government plot (but which government!?), but I am very uncomfortable with how flippant people are about rape when one of their idols is accused of it (see, Bryant, Kobe.)

  50. Politicalguineapig
    Politicalguineapig December 7, 2010 at 1:47 am |

    Sadie:Only if the victim was white, and if there was a black guy around to frame. You still kinda have to wonder how many white rapists are running around the South, having never faced any sort of accountability for their actions. (Another excellent reason to avoid that region.)
    Personally, from the stuff I’ve read about Assange he’s a typical ex-college boy douche. And considering the college culture over in Australia, it’s very likely that he actually did the things he’s accused of. But I’d like to have a rock-solid story, and some proof that this wasn’t ginned up for political points.

  51. Brittany-Ann
    Brittany-Ann December 7, 2010 at 6:28 am |

    @Politicalguineapig,

    I have to say that rape is not a problem unique to the (United States) South, and your statement unfairly frames it as such. Rape is a problem around the world, and the only difference is what rapes are considered valid because of the persons involved, the circumstances, et cetera, and that’s not something that happens only in one geographical area. But I’m sure you know this, I simply feel the need to emphasize that framing rape as a problem in one area (with the inherent, if unintended, implication that it’s to the exclusion of every other place) inhibits our ability to address the problem.

    On topic, for all the awareness and discussion of consent, so many are still completely unaware of it. People imagine a legal-type negotiation, and are (pun not intended) completely turned off by it and tune out. What language could be used, I wonder, to battle this seemingly-instinctive imagining that is the response to discussions on consent?

  52. Dave W.
    Dave W. December 7, 2010 at 7:55 am |

    @bhuesca: My point of bringing this up is that 18 years of child support/maintenance is truly a cost. And IF the negotiated condition of intercourse was her pill-taking, then could he state non-consent, and, therefore rape? And must a man pay child support to his rapist for the product of his rape, or is the ‘if you engage in PIV intercourse, you know that pregnancy just might happen despite the most fervent of actions?

    There’s precedent for ordering an underage boy to pay child support for the pregnancy resulting from a statutory rape by an older woman. I’m not sure why rape-by-deception would be treated any differently for purposes of child support.

  53. Julian Assange | WikiLeaks « PublicServicePenPals

    [...] either. Whether or not you believe that convincing someone not to use a condom is sexual assault (it is), running from Interpol won’t help you get [...]

  54. Etxu
    Etxu December 7, 2010 at 8:19 am |

    At least there is a punishment for it.

    I’m American, and there is no chance that women here could ever take something like this to court.

    Jim: 1. I don’t get what is so hard to get about this being non-consensual. The agreement required a condom, either he used one or not – it all comes down to whether or not he met the conditions and whether or not they had sex. Seems pretty straightforward to me.2. “(It’s also worth pointing out that the charge is actually a quite minor one in Sweden, and the punishment is a $700 fine). ”That’s pretty surprising, considering the consequences could be an unwanted preganacy or HIV infection. I mean, OK, light sentences for really bad crimes are not uncommon, but this is still surprising.  

  55. Maggie
    Maggie December 7, 2010 at 8:42 am |

    I think a large part of the issue is that with rape-by-force you can sort of point to injuries and go there’s your proof, whereas withdrawal of consent comes down, in almost every case, to he-said/she-said. And people are kind of unwilling to take a woman’s word for that kind of thing, natch.

    And I mean, yes, I suppose there IS the issue of how to sort the many actual rape cases from the occasional lie-to-mess-with-a-dude’s-rep cases. I don’t mean to suggest that someone would be LIKELY go through the whole horrible court process in this culture just for that, of course. And presently there’s the tendency to throw actual rape victims under the bus in favour of hypothetical false-accusation victims, which sucks. But when we get to the point where rape is taken seriously enough for that to be plausible, are we going to then throw victims of false accusation under the bus? Or are we going to experience enough backlash turn right around and go back to “character” based interpretations of truth? All of the options in this scenario kind of suck.

    Basically the legal system is an awkward locale for dealing with this kind of problem. I don’t know what would be a better way, though. I don’t know if this issue, in one form or another, will ever go away. Really the only ACTUAL solution is for men to get with the consent program to the point where rape is rare enough that there’s no REASON for anyone to lie about it, because it wouldn’t be a plausible lie.

    And none of it changes the unfortunate fact that right now, when it comes to he-said/she-said situations, people disproportionately prefer “he-said” to “she-said.”

  56. Few words on Julian Assange « Harpymarx

    [...] articles here  by Feministe & Cath [...]

  57. matlun
    matlun December 7, 2010 at 9:27 am |

    Maggie: And none of it changes the unfortunate fact that right now, when it comes to he-said/she-said situations, people disproportionately prefer “he-said” to “she-said.” 

    I may be misinterpreting you here, but if you are referring to the outcome in actual court cases (or dismissals before going to court), this is a very bad misinterpretation.

    Since in court you need to ascertain guilt beyond reasonable doubt, an acquittal does not mean that the jury has decided that the accuser is lying. Or even that the accuser is seen as less believable than the accused.

    If the court was truly certain that the accuser was lying, she should then have been convicted of perjury. The statistics for confirmed false accusations show that this happens very rarely.

    This is an important point since this type of misunderstanding causes a lot of shame and suffering for rape survivors. Both because other people take this attitude (and treat them as a liar) and because in many cases this interpretation is internalized.

    (If you meant the statement from a more general cultural perspective, I do not disagree. I just wanted to point out the legal issue since it is actually a very common mistake)

  58. Sheelzebub
    Sheelzebub December 7, 2010 at 9:29 am |

    bhuesca: want to clarify that the reason for my above question is because I want to parse the Arab/Israeli “rape by deception” with this post’s topic for a potential post. BH bhuesca

    WRT to that case, I was right in my skepticism–it turns out there was far more to it than originally reported.

    As far as the mewling about trumped up rape charges, here’s a ticket to the clue train–white men are very rarely successfully prosecuted for rape, even when they videotape themselves doing it. With all of the rape apology that gets thrown about in these cases, using trumped up rape charges as a way to fuck with a dissident isn’t going to work. If you want to get someone on trumped up charges and moral outrage, you’d do better to plant drugs on them, not rely on Sweden (a country not known for its long or harsh prison sentences) to prosecute on a downgraded sexual assault charge.

    I mean, Christ, who knew that rape was taken so seriously? Not most survivors I know, that’s for sure.

  59. PrettyAmiable
    PrettyAmiable December 7, 2010 at 9:40 am |

    @matlun, in the US (I’m not sure you’re from here), we’ve executed a few men who were innocent of the crimes they committed (I’m thinking specifically of a guy who was convicted of arson in I *believe* Texas) – that is, we clearly didn’t have evidence that they committed crimes because they didn’t. I feel like we disproportionately acquit when it comes to rape compared to other things. It doesn’t strike me as just a matter of “he-said, she-said” that is keeping rapists out of prison so much as rape culture.

  60. Nic
    Nic December 7, 2010 at 10:08 am |

    (Reposting because I fail at HTML; please delete my previous comment!)

    In case anyone was thinking that this part of Jill’s post was purely theoretical, or hyperbolic:

    I suspect that the thought process goes, If the damage (penetrative sex) has already been done, then the situation can’t possibly turn into a rape, because the initial penetration itself occurred consensually, and it’s that penetration that’s the basis of the harm in any rape case. Consent, in that framework, isn’t the point.

    …take a look at this:

    http://theothermccain.com/2010/12/06/unintentional-hilarity-feminists-ask-if-julian-assange-committed-rape-rape/

  61. Curtis
    Curtis December 7, 2010 at 10:29 am |

    Maggie
    Regardless of whether it is a he or a she, any “said” is usually insufficient proof of anything. Combine that with “innocent unless proven guilty” and you see why considering the potential lack of evidence around sex acts, it is so difficult to prove non-consent. I am told though, that Sweden is one of those countries where the strenght of an plea (including rhetoric) is valued. That is, who the judge ‘believes’.

    Jill,
    No means no regardless of when is a no-brainer. Any sex after no is force and therefore sexual assualt of some sort (if after no, no, no, then rape). I am a bit shocked that this needs debating where you are but looking at the reponses here, obviously it does. Congratulations.

    I wonder what happens when an earlier common agreement on using a condom, changes to a later common agreement to continue without a condom, though?

  62. matlun
    matlun December 7, 2010 at 10:36 am |

    @PrettyAmiable
    You may very well be correct that the evidence evaluation in rape cases is different. I do not really have an opinion on this. (Btw I am from Sweden, and I am less familiar with the US system)

    The point I wanted to make was simply this: Just because someone accused a man of rape and this did not lead to a conviction, this is not enough to judge the accuser a liar. Note that this is true even if the trial was conducted in a perfect manner (ie everyone in the justice system made the correct decisions based on the information available to them).

    This may not be a mistake many people reading this blog would make, but it is depressingly common.

    PS. Somewhat off-topic, but any reasonable justice system will sometimes convict innocents, just by statistical chance and the fact that the system is administered by fallible humans. For example, here in Sweden there have been a number of false rape convictions. This is hard to avoid without setting the burden of evidence unreasonably high (causing too many criminals to walk free).

  63. hypatia dot ca » On Consent
    hypatia dot ca » On Consent December 7, 2010 at 10:39 am |

    [...] finding really problematic. There’s a pretty good discussion of many of these issues over on Feministe, but the specifics that matter to me [...]

  64. PrettyAmiable
    PrettyAmiable December 7, 2010 at 10:42 am |

    “Somewhat off-topic, but any reasonable justice system will sometimes convict innocents” — yeah, but in the US we kill them. Go big or go home, I guess. [/snark]

    Regarding your comment about it not being sufficient to indicate the accuser is a liar if their rapist isn’t convicted – yes, that’s true. However, here, it’s been my experience that the fucker could admit to it, and the raped individual was still somehow at fault, according to nearly everyone.

    As an update to the post, CNN is reporting that Assange isn’t voluntarily consenting to extradition, so just getting him back to Sweden is probably going to take a month or three.

  65. Politicalguineapig
    Politicalguineapig December 7, 2010 at 10:42 am |

    Brittany Ann: I am aware that rape is a world-wide problem,
    I was just pointing out that some regions have more incidents then others by fostering cultures that encourage male entitlement,
    distrust/ or corruption of law enforcement and religions/denominiations that denigrate women.

  66. MJ86
    MJ86 December 7, 2010 at 10:44 am |

    “Assange is charged for rape, sexual harassment and duress.” – From the first comment.

    “It’s also worth pointing out that the charge is actually a quite minor one in Sweden, and the punishment is a $700 fine.” – From the post.

    One of these two things just cannot be accurate. Maybe the offenses are degreed and he’s charged with the lesser offence?

  67. pandagon.net - it's the eye of the panda, it's the thrill of the bite

    [...] usual rape apologist tropes are being employed, this time by people who should know better.  Jill has more on why forcibly fucking a woman who has withdrawn her consent because the condom conditions weren’t [...]

  68. makomk
    makomk December 7, 2010 at 11:17 am |

    bhuesca: as I recall, in the US there are actual legal precedents stating that if you’re an underage boy and some women in a position of power over you gets pregnant in the process of commiting statutory rape, you still have to pay her child support. Even if lying about being on the Pill did count as rape, that wouldn’t avoid 18 years of child support payments.

    (Of course, the really fun bit is that, in order to stop evil deadbeat dads shirking their responsibities by the nefarious tactic of being unemployed, most US states allow judges to set payments based on how much money they think the parent should earn. I seem to recall that at least one of the precedent-setting guys was forced to drop out of college and get a minimum-wage job instead due to this.)

    Never underestimate just how gendered countries’ laws on rape can be. Sweden’s appears to currently be comparatively gender-neutral in theory, if not necessarily in practice – though I’m not sure that’s going to remain the case for much longer.

  69. makomk
    makomk December 7, 2010 at 11:17 am |

    bhuesca: as I recall, in the US there are actual legal precedents stating that if you’re an underage boy and some women in a position of power over you gets pregnant in the process of commiting statutory rape, you still have to pay her child support. Even if lying about being on the Pill did count as rape, that wouldn’t avoid 18 years of child support payments.

    (Of course, the really fun bit is that, in order to stop evil deadbeat dads shirking their responsibities by the nefarious tactic of being unemployed, most US states allow judges to set payments based on how much money they think the parent should earn. I seem to recall that at least one of the precedent-setting guys was forced to drop out of college and get a minimum-wage job instead due to this.)

    Never underestimate just how gendered countries’ laws on rape can be. Sweden’s appears to currently be comparatively gender-neutral in theory, if not necessarily in practice – though I’m not sure that’s going to remain the case for much longer.

  70. Angus Johnston
    Angus Johnston December 7, 2010 at 11:24 am |

    Excellent post, but just one quibble — the “$700 fine” thing is disinformation spread by one of Assange’s lawyers. The crimes Assange is charged with are rape, sexual coercion, and sexual molestation, and none carries a maximum sentence of less than two years in prison.

    I’ve updated (the one Jill linked to here) with some new information about this and other stuff that’s become available since Assange’s arrest. I also included a link to Linnea’s of the “sex by surprise” thing, which is well worth reading if anyone missed it.

  71. Jim
    Jim December 7, 2010 at 11:40 am |

    Jill: It is a cost, but I don’t think it’s a cost that should incur criminal penalties.

    It’s fraud like any other financial fraud. People do go to jail for fraud, all too seldom, but some do. The difference between someone defrauding someone of 18 years of that much money, and a Bernie Madoff, is a matter of scale not of kind. Additionally it is a form of enslavement, especially for low-income men, and can even lead to debtor’s prison. You would think that in the US at least slavery would be a hot-button issue, but it’s just not. look at the risible sentences that people get in debt and document bondage cases.

    makomk: bhuesca: as I recall, in the US there are actual legal precedents stating that if you’re an underage boy and some women in a position of power over you gets pregnant in the process of commiting statutory rape, you still have to pay her child support.

    Then there is this. There have been cases of this. No question.

    Sheelzebub: As far as the mewling about trumped up rape charges,

    Then there’s this. There’s always going to be a white woman somewhere, even in this 50th annivesary year of “to Kill A Mockingbird” who is going to deride any attempt at preserving civil rights and due process when it comes to rape.

  72. Kathleen
    Kathleen December 7, 2010 at 11:45 am |

    makomk — yes, child support laws are designed to benefit… children. They aren’t schemes to reward and punish parents.

    I’m so glad the Assange thing is finally getting some traction in feminist spaces. For weeks now I’ve been seeing the argument all over lefty blogs that to think the case against Assange sounds plausible is to be objectively pro-imperialism. And it does seem to be a bit of a (some) lefty male obsession: Assange was set up. Spitzer was set up. IF ONLY FEMINISTS WOULD SHUT UP WE COULD OVERTHROW THE MAN.

    The logical sequence “wikileaks is a force for good, ERGO trampy Swedish tramps!” totally escapes my teeny lady brain.

  73. JeffreyY
    JeffreyY December 7, 2010 at 12:05 pm |

    I agree that your basic point is true: continuing sex after consent has been withdrawn is rape. So then how should that be argued in court? What counts as evidence that consent has or has not been withdrawn? Is it just how sympathetic the two people are that makes the jury believe one over the other? How does this fit with the concept of innocent-until-proven-guilty?

  74. Angus Johnston
    Angus Johnston December 7, 2010 at 12:18 pm |

    Dang. Forgot to close my HTML tags. Sorry about that.

    Jeffrey — the concept of one person’s word against another isn’t unique to rape cases. There are all sorts of situations in which a criminal case hinges on which of two contradictory witnesses a jury finds more reliable.

    In the US, the criminal standard is “beyond a reasonable doubt.” If I, as a juror, conclude beyond a reasonable doubt that the defendant is guilty, I vote “guilty.” If not, not. But I can reach that point in any number of ways.

    The idea that unrefuted physical evidence is the standard way that guilt is proven in a court of law is largely a myth.

  75. makomk
    makomk December 7, 2010 at 12:28 pm |

    Kathleen: aren’t supposed to punish parents, yes. In practice, being forced to abandon your education and spend the rest of your life working near-minimum wage jobs because someone in a position of power over you coerced you into sex when you were too young to say “no” is pretty damn close to punishment. If we were talking about a woman who had to do this, I doubt we’d even be having this debate – and indeed, they do have several legal ways out of such a scenario and feminists spend a lot of time campaigning to ensure this.

    Also, child support laws are not just “designed to benefit… children” – they’re designed around the assumption that what benefits children is a system where men go out to work and make money to fund them and women look after them. Even when the woman in question is a bona-fide sex offender, and the man in question is one of her victims.

  76. John
    John December 7, 2010 at 12:31 pm |

    If you want to get an idea why “withdrawal of consent” laws aren’t on the books everywhere, read this:
    http://radsoft.net/news/20101001,01.shtml

    These laws can be abused so easily because enforcement will always have to rely on circumstantial evidence at best and he-said-she-said in most cases. Laws which are hard to enforce and ripe for abuse should not be on the books, even if there is nothing but good intentions behind them.

  77. Kathleen
    Kathleen December 7, 2010 at 12:32 pm |

    what if the woman in question is a serial killer and the man in question is a fluffy bunny? WHAT THEN?????

  78. saffo
    saffo December 7, 2010 at 12:34 pm |

    I think the issue about how the media is responding to this is important in terms of how it impacts the way people understand and respond to rape.

    However, it is also relevant that the accuser has ties to the CIA. http://my.firedoglake.com/kirkmurphy/2010/12/04/assanges-chief-accuser-has-her-own-history-with-us-funded-anti-castro-groups-one-of-which-has-cia-ties/

  79. Feminism, Assange rape charges, free speech, and Wikileaks | Composite

    [...] agree with Lindsay Beyerstein and Jill Filipovic that the media story of the charges against Assange and much of the public discussion of them have [...]

  80. Sheelzebub
    Sheelzebub December 7, 2010 at 12:41 pm |

    Jeffrey, since these charges were made in Sweden, it would be kinda apples to oranges here. There have been cases of withdrawn consent/rape in the courts here in the US before, one that I recall where the two assailants admitted that the girl said no several times, said she didn’t want to do it, and said she wanted to go home, but they continued anyway.

    Just in general–the thing about this case that sets my teeth on edge is that men on the left are not only eager to assume that these two women are lying, man-hating right-wing* sluts, but that they have helped to set up the false dichotomy of rape culture with Wikileaks vs. feminists with right wing CIA conspiracy plots. Apparently, saying “I think the timing is really . . .coincidental” is impossible without also going off half cocked about the man-hating rad feminazi sluts out to destroy good lefty men.

    *One of the women once wrote for a publication that was linked by several degrees to a CIA dude, and had contact with a supposedly anti-Castro feminist group. Which means, of course, that she has strong ties to the CIA and is obviously doing their bidding, because it’s impossible to be anti-Castro and be lefty, and her magical vagina should have clued her in to the fact that the publication was a front! CIA spooks have never infiltrated other lefty orgs or started front publications that lefty d00ds have written for in good faith–and if they did, it was probably the fault of some lady’s vagina anyway.

    God. Perhaps we can rename this whole kerfuffle “You got your snitch jacketing in my rape apology!”

  81. Julian Assange, the arrest and why we should not protest. Yet. | The River Fed

    [...] Conspiracy: Why it’s wrong to casually dismiss the allegations against Julian Assange Feministe: Some thoughts on “sex by surprise” [...]

  82. Sheelzebub
    Sheelzebub December 7, 2010 at 12:46 pm |

    Or maybe we can rename it: “Feminist blogs: A venue for MRA douchebags to derail conversations.”

  83. makomk
    makomk December 7, 2010 at 12:47 pm |

    Kathleen: I’m not even sure what that kind of non-sequitur argument is called, but unlike you I’m not talking in hypotheticals here.

  84. PrettyAmiable
    PrettyAmiable December 7, 2010 at 12:50 pm |

    Kathleen: what if the woman in question is a serial killer and the man in question is a fluffy bunny? WHAT THEN?????  

    Woman on bunny rape is a heinous crime and is horribly underrepresented by us hairy-legged feminists who for some reason think that women are getting raped more than men just because all peer-reviewed studies suggest this is true. Honestly, we’re horrible people.

  85. Jim
    Jim December 7, 2010 at 12:56 pm |

    Jill: Well, no, it’s not. Because child support isn’t for the woman — it’s for the child who, if support is being paid, actually exists. Jill

    Well yes it is, because although yes, the child exists, so what – no, he has no responsibility towards her or him, and that is the basis for the claim of child support. The fraud is in claiming he’s the father, and in accepting money based on that false claim.

  86. Anonymous
    Anonymous December 7, 2010 at 12:58 pm |

    [...] [...]

  87. matlun
    matlun December 7, 2010 at 1:00 pm |

    This thread seems to be coming of the rails, but I will make another attempt to clear up the confusion about the misunderstanding quoted in the post “It’s also worth pointing out that the charge is actually a quite minor one in Sweden, and the punishment is a $700 fine.”

    To clarify: This is the punishment for the lesser charge (Swedish “ofredande” – translated in one article above as “sexual harassment”). The quotes about the charge being a minor issue were from the time when the rape charge was dismissed (it has been reinstated).

  88. Sheelzebub
    Sheelzebub December 7, 2010 at 1:11 pm |

    OK, saffo, if we’re going to go down that route, kindly hold the fauxgressive writers who spread the hysteria “broke the story” about the accuser’s supposed CIA ties to the same standards.

    Those CIA “ties”? According to the original story, she wrote two articles for a publication that was linked by two degrees to Carlos Alberto Montaner. You don’t have to like what she wrote or who she wrote it for, but it’s stretching it to infer that she’s some sort of CIA operative or that she has ‘ties’ to the CIA.

    FFS. Be as skeptical as you want. I’m skeptical about the timing of these charges. But I’m also disgusted by the rape apology and misogyny that lefty d00ds are happy to engage in and I’m struck by the double-standard–it’s horrible to condemn Assange as a rapist on scant evidence, but apparently, thin evidence is all we need to assert that one of his accusers is a right-wing fascist who’s out to destroy him.

  89. makomk
    makomk December 7, 2010 at 1:13 pm |

    [Trigger Warning for discussion of rape]

    PrettyAmiable: that’s the other funny thing. Pretty much every time I’ve seen someone quoting a peer-reviewed study that shows women are getting raped far more than men, it has an incredibly gendered penetration-based definition of rape. For example, take the NCVS and its variants. If a cis man was forced to participate in penis-in-vagina intercourse at gunpoint by a cis woman, the NCVS doesn’t count him as having been raped. Swap the genders around and it counts. The same is true of oral intercourse.

    (The NCVS also has flaws related to same-sex rape – though they’re not quite as major as the female-perpetrator, male-victim omissions – and massive one when trans* people are involved.)

    I’ve yet to see a study – peer-reviewed or otherwise – that isn’t similarly flawed. I’d be very surprised if it didn’t still show more women than men were rape victims, but the gap could well be a lot smaller.

    Of course, the really interesting thing is that I only know of one other person that’s spotted this fairly obvious problem.

  90. karen
    karen December 7, 2010 at 1:14 pm |

    You had me up until you wrote “too liberal feminist legal system.”

    Thank you for throwing women under the bus. Now, it’s a feminist conspiracy. I whole heartedly support Julian Assange’s leaks, but he needs to be punished if rape is what happened. With respect to the laws in the country committed. Women have had to fight for rape laws for a long time, now they’re too “liberal.”

    Get a grip. “Feminist!” LOL

  91. Natalia
    Natalia December 7, 2010 at 1:16 pm |

    what if the woman in question is a serial killer and the man in question is a fluffy bunny? WHAT THEN?????

    THEN IT WILL BE BESTIALITY AND BABY JESUS WILL CRY!!!

  92. Julian Assange Charges and ‘Sex By Surprise’

    [...] behavior, while doubtless that of a cad, be illegal — much less rape?  Feministe‘s Jill Filipovic is appalled that anyone would even ask. Withdrawal of consent should be grounds for a rape charge [...]

  93. April
    April December 7, 2010 at 1:32 pm |

    Sheelzebub:
    WRT to that case, I was right in my skepticism–it turns out there was far more to it than originally reported.As far as the mewling about trumped up rape charges, here’s a ticket to the clue train–white men are very rarely successfully prosecuted for rape, even when they videotape themselves doing it.With all of the rape apology that gets thrown about in these cases, using trumped up rape charges as a way to fuck with a dissident isn’t going to work.If you want to get someone on trumped up charges and moral outrage, you’d do better to plant drugs on them, not rely on Sweden (a country not known for its long or harsh prison sentences) to prosecute on a downgraded sexual assault charge.I mean, Christ, who knew that rape was taken so seriously?Not most survivors I know, that’s for sure.  

    If they’re trying to fuck with a dissident, then more people are likely involved than the two women who accused him, with far more power. If they’re interested in putting him away, this will work just fine. That’s the whole point of the outrage about this– if it’s true that these charges were only filed because interpol was trying to get him, then it will work. As if international law enforcement will be like, “ahh, Sweden might decide he’s not guilty. Then our hands are tied, and I guess we go back to looking for that bank robber!”

  94. PrettyAmiable
    PrettyAmiable December 7, 2010 at 1:34 pm |

    makomk, I saw that whatever you wrote seemed to be directed at me, but I took your trigger warning to heart (if you’re wondering why I’m not going to engage what you said, whatever it might have been).

    Sincere thanks for using that – because I’m getting ridiculously set off by everything as my first flight since all the TSA nonsense is approaching.

    Sorry for the derail all, but very few things have been making me “PrettyAmiable” (PUN), so I thought it would be nice to put the good thoughts out into the ether.

  95. Sam
    Sam December 7, 2010 at 1:45 pm |

    I think that I basically agree with everything in the post, and after glancing at the relevant sections of the Swedish law (http://www.sweden.gov.se/content/1/c6/02/77/77/cb79a8a3.pdf), Swedish law on rape and sexual assault seems largely sane (as opposed to some alligations against it) – although I would have to say that the second part of section 7 (sexual molestation), paragraph 3 of Section 6 (sexual offences) – quote –

    “or otherwise manifestly behaves indecently by word or deed towards the latter in a way that flagrantly violates a sense of propriety. (Law 1994:1499)”
    -

    seems a bit unspecific. And two of the four alligations against Assange seem to based on this clause, two – holding Ms A. down with his body weight, and “having sex with a second woman, Miss W, on August 17 without a condom while she was asleep at her Stockholm home” – seem to based on Section 2 of Section 6 (sexual coercion). The last one would probably be outright rape as per section 1 of section 6 if the incapacitation (sleep) had been induced, which doesn’t seem to be part of the accusation.

    So, on the one hand, the alligations mentioned in the arrest warrant seem to be more serious than was recently alleged. On the other hand, it seems strange that these alligations would reappear after they seemed to have been dropped early on by the Swedish authorities.

    Be that how it may, I think this is an interesting case for everyone (non-feminist) to consider the issues Jill mentioned in the OP seriously, and for some feminists to question their attitude towards “in dubio pro reo” as a cornerstone of any legal system.

  96. Sheelzebub
    Sheelzebub December 7, 2010 at 1:49 pm |

    There’s always going to be a white woman somewhere, even in this 50th annivesary year of “to Kill A Mockingbird” who is going to deride any attempt at preserving civil rights and due process when it comes to rape. Jim

    Jim, stop being a disingenuous asshat. Where did I say that Assange is guilty, that he doesn’t deserve a fair trial, or anything like that? Oh, wait, that’s right, I didn’t. I pointed out that rape isn’t usually successfully prosecuted, even when the rapists have videotaped themselves doing it. I said that given that, I was skeptical with the usage of trumped-up rape charges as an effective tool to fuck with a dissident.

    Agree with this or disagree with this, but don’t twist my words. Though given your past history of derailing conversations on this blog and twisting people’s words, I’m not holding my breath.

    Oh, and by the way, the White and affluent Assange is no Boo Radley, but there’s nothing like some rhetorical slight of hand on your part to distract from my original point.

  97. Ken
    Ken December 7, 2010 at 2:04 pm |

    Melissa: Here’s what I don’t get:Why is it taken as common knowledge that it’s horrible and manipulative and evil for women to say they’re on the pill when they’re actually not…but all in good fun for a man to say he’s using a condom when he’s actually not?  

    Wow, holy oversimplification!

    Other than that comment, though… I really dug this article! Thanks for the info, this really should be a companion piece to all the current arrest articles on Assange.

  98. Sheelzebub
    Sheelzebub December 7, 2010 at 2:07 pm |

    If they’re trying to fuck with a dissident, then more people are likely involved than the two women who accused him, with far more power.

    Well, yeah. Which means that they’d be able to do something that would be more likely to get him successfully prosecuted, such as plant drugs on him. Or frame him for theft or a bombing plot or something.

    Given the very low rate of successful rape prosecutions, I remain skeptical that rape charges are effective as a way to fuck with dissidents.

    That is not to say that Assange is automatically guilty of the charges or innocent of them–I don’t know, and frankly, that’s for the Swedish courts to decide.

    I am deeply troubled–but completely unsurprised–by the idea (not propagated by you, April, but by others on this thread and in general) that believing in innocent until proven guilty means that the accusers are liars, right-wing plants, and man-hating feminazis out to destroy men. Some of Assange’s defenders are so busy snitch-jacketing and aspirating on their own spittle that they aren’t exactly helping the cause of Wikileaks.

  99. Kathleen
    Kathleen December 7, 2010 at 2:12 pm |

    Sheelzebub: countdown till Jim invokes the entire intellectual contributions of bell hooks and/or Audre Lord to consist of : “why don’t white feminists just shut up?”.

    I couldn’t agree with you more about the disgusting lefty male bs on display in this context (the Counterpunch article ftw). And it isn’t *feminists* who have no sense of proportion about it. Bending the entire tragic, appalling history of U.S. imperialist secrecy to the service of “and also! the Duke Lacrosse case is an outrage that must ne’er be forgot!!!!” is pretty much the most vile, navel-gazing, obsessive identity politics possible and it’s all over the effing lefty interwebs.

  100. Fred
    Fred December 7, 2010 at 2:17 pm |

    I tend to agree that there’s enough room in what little facts have been produced (understandably so, since victims of sex crimes deserve protection) to construct a real rape case.

    But it’s slightly fishy that the woman he stayed with bragged about it during the time he stayed with her (including an entire week after the date of the alleged rape), and later deleted her entirely positive tweets about Mr Assange before filing charges…

  101. April
    April December 7, 2010 at 3:11 pm |

    Well, yeah. Which means that they’d be able to do something that would be more likely to get him successfully prosecuted, such as plant drugs on him. Or frame him for theft or a bombing plot or something.

    I don’t know. Being accused of rape, even though actual conviction rates are so pathetically low, is a pretty-much guaranteed way to ruin someone’s overall reputation, which certainly aides in his take-down, and throws a wrench into the “hero” image he’s created for himself. Many people aren’t likely to continue trusting someone who’s been accused of rape (especially publicly, as Assange has been), whether or not he ends up convicted of it. Being busted on something like drug charges, whether true or false, doesn’t really hold the same weight socially as being accused of rape.

  102. Right-Wing Blogger on Date Rape: ‘You Buy the Ticket, You Take the Ride’ | The News blog

    [...] right-wing blogger Robert Stacy McCain (The Other McCain) has used an examination of Julian Assange’s sexual assault allegations as a springboard to a jaw-dropping assessment [...]

  103. Aaron
    Aaron December 7, 2010 at 3:29 pm |

    We can differentiate more between our treatment of the victims as people and our treatment of them in the legal system. “Innocent until proven guilty” means that we need to be skeptical about accusations of any crime, including rape, from a legal point of view, but that’s not incompatible with treating the victims like human beings, being sympathetic to their needs and listening to their stories with compassion and trust. This is an important distinction to make especially in a case with as much politically going on as WikiLeaks. (the feminist/CLS critiques of the adverserial legal system are interesting, I think, but some are more persuasive than others).

    That said, the charges may very well be true, if they are true, WikiLeaks will survive, etc. etc.

  104. Thomas
    Thomas December 7, 2010 at 3:33 pm |

    In dubio pro reo.
    The discussion on rape and consent , to me, boils down to ethical values. The problem of any but the “wild man from the wilds” type of rapes, from a procedural point, is the proof. Two people had sex, one stating that that it wasn’t consentual. Since it is criminal law, proof is needed, and that proof is obtained by the executive to be judge by the judivative. Since it is a process between two individuals, it has a lot of the problems of civil law cases – whose word counts more ?
    Taking into account that the judged conduct took part within peoples’ homes, which are legally protected in most western countries, proof is hard to come by. In a civil case, the intercourse might be enough for a succesful case in financial damages. Yet, in a criminal case, a person can get hard jail time for many years, and the principle of giving the defendant the benefit of the doubt needs to be upheld.
    That puts legal enforcibility of rape changes at an inherent disadvantage.

    Anyway. Whoever is accused of something like rape, should stand trial, and be assumed innocent until proven otherwise. Heroes, scumbags and especially high-profile conspiracy nitwits.

  105. Sheelzebub
    Sheelzebub December 7, 2010 at 3:58 pm |

    I dunno, April. His supporters haven’t wavered despite the charges–in fact, any man’s supporters don’t tend to waver in the face of charges like these. The only people who believe this is the right wing (and they even tend to engage in rape apology in this case)–and let’s face it, they hate Assange anyway and there was no need for trumped up charges to whip up right-wing hatred against him. Among the left–it’s like with any case of a man being accused of rape or sexual assault–people close ranks among a man in their group. It happened with Roman Polanski, it happened in the OC pack rape case, it happened in the Glen Ridge pack rape case, and it happened in the Big Dan’s case in New Bedford.

    I haven’t seen people who have been accused of rape–or even convicted of it–be publicly shunned to the extent that exists in the popular imagination. Other than feminist meanie-butts, a lot of folks are willing to forget about that nasty business, which was probably brought up by some vengeful slut who was asking for it, anyway. It’s not as if the assailants in the Glen Ridge Rape case were hounded or haunted after their convictions (although a couple of them went on to assault/sexually assault others). Kobe Bryant is still getting sponsorship deals and support from his fans. The rapes at KBR and in the armed forces not only don’t typically garner successful prosecutions but the rapists do not see the rapists’ reputations being harmed.

    The women in these cases, however, are often accused of being sluts, stupid, groupies, crazy, liars, vengeful scorned women, golddiggers, and part of an oppressive structure (!). Many of them have faced death threats and further assaults in retaliation to coming forward. Unlike the men who raped them, many rape survivors find their own family and supposed friends questioning their judgment, their story, and their honesty.

    So–I remain skeptical that as a way to fuck with dissidents, it’s effective.

  106. Silver
    Silver December 7, 2010 at 4:08 pm |

    The politics is what make the whole thing so difficult. Wouldn’t it have been better for everyone involved if Sweden had delayed prosecution until the current storm over the diplomatic cables had died down? He should be tried and punished if guilty of rape, of course. However, attempting to do that in the current environment seems like a recipe for stirring up conspiracy theories. My biggest problem with the way Assange has been treated are the death threats by people who should know better.

  107. Adrian
    Adrian December 7, 2010 at 4:20 pm |

    Melissa: Here’s what I don’t get:Why is it taken as common knowledge that it’s horrible and manipulative and evil for women to say they’re on the pill when they’re actually not…but all in good fun for a man to say he’s using a condom when he’s actually not?  

    Because a woman can verify that a man is wearing a condom, either by looking with her own two eyes, or touching with her hand, mouth, whatever, and can watch the penis-and-condom enter wherever she’s allowing it enter; there’s no way to confirm that a woman is on the pill without a blood test. Even if you watch her take the pill, she could spit it out when you aren’t looking, take the placebo ones instead of the hormone ones, or take something that isn’t birth control at all (aspirin, etc.). Also, if a woman observes that, at some point, the condom broke, or was removed, she can stop having sex at that point, but, unless the woman admits to it, there’s no way a man can discover the woman didn’t take the (right) pill once things are underway.

    Further, since pills don’t protect against STIs, the only reason to take or not take it is to prevent or allow pregnancy. Given that a man can’t force a woman to have an abortion, nor can he “opt out” of the pregnancy – he is stuck with a child whether he wants it or not, at least financially, if nothing else, for 18 years – the only reason for a woman to lie about taking the pill is to allow herself to get pregnant against the man’s wishes.

    It’s certainly possible that a man would lie about wearing a condom to cause pregnancy, but not likely, in my opinion, given that he’ll be on the hook for the child for the next 18 years, regardless of how things go with the woman. More likely, he’s lying about a condom for the increased sensation, which obviously could lead to transmitting STIs, and could also lead to pregnancy, neither of which are probably his goal.

    I think the difference comes down to intent. A woman lying about being on the pill intends to get pregnant, either to trap or get money from a man; a man lying about a condom probably doesn’t intend to infect or impregnate a woman (although it’s possible one or both of those are his intentions), though those may be unintentional consequences. So, in most people’s eyes, an intentional pregnancy against one partner’s wishes probably seems worse than an accidental pregnancy, or even an accidental infection transmittal, particularly given that it’s possible to verify and re-verify that a condom is on, but practically impossible to verify that a woman is actually on the pill.

    Don’t misconstrue this to mean that I think lying about using a condom is acceptable, or that not stopping after a breakage is, either.

  108. Bloix
    Bloix December 7, 2010 at 4:32 pm |

    “I guess if you consider Reddit, DKos, AOL, etc., to be “fringe.””

    Of course they’re fringe. As is Feministe. All of us here are fringe.

    The narrative from the TV is, “evil rapist terrorist who hates America is under arrest and will get what’s coming to him.”

  109. Adrian
    Adrian December 7, 2010 at 4:45 pm |

    Dave W.:
    There’s precedent for ordering an underage boy to pay child support for the pregnancy resulting from a statutory rape by an older woman.I’m not sure why rape-by-deception would be treated any differently for purposes of child support.  

    That there’s a precedent for forcing a victim to pay child support is disturbing.

  110. Liz Henry
    Liz Henry December 7, 2010 at 4:48 pm |

    Thanks for this post, Jill! I posted this morning on Assange, feminism, the rape charges and surrounding discussion, and free speech. I really hate that it’s being framed as feminism vs. free speech when I have seen plenty of posts from women that convey support for Wikileaks and support for, well, reporting rape when people commit it, even if they’re politically important. Feminists fighting for Wikileaks

  111. April
    April December 7, 2010 at 4:58 pm |

    Sheelzebub: I haven’t seen people who have been accused of rape–or even convicted of it–be publicly shunned to the extent that exists in the popular imagination. Other than feminist meanie-butts, a lot of folks are willing to forget about that nasty business, which was probably brought up by some vengeful slut who was asking for it, anyway. It’s not as if the assailants in the Glen Ridge Rape case were hounded or haunted after their convictions (although a couple of them went on to assault/sexually assault others). Kobe Bryant is still getting sponsorship deals and support from his fans. The rapes at KBR and in the armed forces not only don’t typically garner successful prosecutions but the rapists do not see the rapists’ reputations being harmed.

    True. But consider the fact that the people for whom a rape conviction is grounds to stop buying a rapist’s albums, or stop supporting a rapist’s basketball team, for example, are usually the same people you’d find on a blog like this, complaining about the people who don’t seem to care about the rape charges. Most people who give a shit in the first place tend to be of a more liberal mindset. These same “liberal” people are the ones who also tend to be in support of WikiLeaks and have an active interest in the site’s continued existence. If all goes as it usually does, this rape charge, and a subsequent conviction if that should occur, should, in theory, cause most of Assange’s biggest fans to pull away from him.

    This is backfiring, of course, because as you mentioned, the conservative side, who typically couldn’t give a flying crap about women who are sexually assaulted and love rape apology, are the ones who are now all too happy to pretend to care this time around, since they believe doing so will help shut down WikiLeaks. The people expected to join forces against Assange for allegedly raping two women, the lefties who like transparency, are surprisingly calling bullshit.

  112. What We Missed
    What We Missed December 7, 2010 at 5:02 pm |

    [...] Feminist blogs respond to the shitty media narrative around Julian Assange’s rape allegations. Like, really Naomi Wolf? We’ll weigh in soon as well. [...]

  113. Sheelzebub
    Sheelzebub December 7, 2010 at 5:17 pm |

    April, what I’m saying is that whether or not feminists and pro-feminists believe Assange is guilty, the Left in general stands united against these charges and in their rhetoric, a lot of them are trotting out rape apologia since Assange is one of their own. Even if the right-wing were apathetic about Assange. They aren’t just saying, “Well, I’m not convinced” or “I’m skeptical about the timing”–they’re basically bashing the women (and the idea of consent in general). And–unfortunately–that’s really nothing new.

    Though I have found some right-wingers who are parroting this rhetoric in this case so, um, yay for bipartisanship? /general bitter sarcasm directed at rape apologists

  114. Jim
    Jim December 7, 2010 at 5:28 pm |

    Kathleen: Sheelzebub: countdown till Jim invokes the entire intellectual contributions of bell hooks and/or Audre Lord to consist of : “why don’t white feminists just shut up?”.

    Here we go with the arrogant mind-reading. Tell me all about what I think; you’re so much more aware than I am. Actually I was going to mention Angela Davis, but then remembered you probably would have no idea.

    But apparently that’s already a raw nerve with you, so I’m going to let it go for the sake of peace.

    April: True.

    Actually, April, it’s false. Various kinds of vigilante actions are documented – recent, unprosecuted, and going as far as murder. White guys too, in Britain and other places. Not that any of that matters, obviously.

    Back to the topic. Judging from what I have heard about Assange’s general messiah complex, he sounds like the sort of person who is most at risk for ignoring boundaries. The normal scepticism, as for any allegation, is in order, but I lean towards expecting that we’ll all find out he either did rape one or both women or came very close to it.

    I still think the failure to use a condom as agreed means the sex was nonconsensual.

    I grant that the context suggests all kinds of arrangements and traps, but he probably made it very easy by really beinb guilty in the first place. That’s how I think this will play out.

    Liz Henry: I really hate that it’s being framed as feminism vs. free speech

    I agree that this is happening and it’s completely bogus – it isn’t feminists who stand to gain anything here by seeing Assange brought down unless he truly is guilty of a crime, which is a separate matter. This framing isn’t taking hold much in the mainstream because most people are likelier to suspect the people in various governments who have more a reason to take him out.

  115. Mitchell
    Mitchell December 7, 2010 at 5:30 pm |

    Because it’s pretty apparent when someone is wearing a condom. Not so with the pill.

    Even in the midst of extremely inebriated sex, my fiancee could tell when I had one on (We’ve since gone and gotten tested together, and due to hormonal issues, she’s not on the pill, but does have an IUD).

    Now, if he went against consent and raped a woman in her sleep and held another down to violate her as well… yeah, that’s rape, hands down. But claiming you didn’t know certain contraception was employed until late in coitus is fairly confounding.

    I’m assuming the latter claim was not made, as the addendum to the blog post would indicate. The only way you could not *feel* the difference and continue on for any extended amount of time would imply severe nerve damage. Definition of consent nonwithstanding, there’s a very physiological reason why the original blogosphere rumours just don’t make any sense.

    Melissa: Here’s what I don’t get:Why is it taken as common knowledge that it’s horrible and manipulative and evil for women to say they’re on the pill when they’re actually not…but all in good fun for a man to say he’s using a condom when he’s actually not?  

  116. Sheelzebub
    Sheelzebub December 7, 2010 at 5:32 pm |

    Actually, Jim, what hits a nerve is when you fucking lie about what people actually said. But no matter. I don’t expect integrity from you.

  117. April
    April December 7, 2010 at 5:34 pm |

    Sheelzebub: April, what I’m saying is that whether or not feminists and pro-feminists believe Assange is guilty, the Left in general stands united against these charges and in their rhetoric, a lot of them are trotting out rape apologia since Assange is one of their own.Even if the right-wing were apathetic about Assange.They aren’t just saying, “Well, I’m not convinced” or “I’m skeptical about the timing”–they’re basically bashing the women (and the idea of consent in general).And–unfortunately–that’s really nothing new.Though I have found some right-wingers who are parroting this rhetoric in this case so, um, yay for bipartisanship? /general bitter sarcasm directed at rape apologists  

    As far as rape apologia, I have really only seen the more misogynistic victim-blaming and slut-shaming come out of the more conservative bloggers and columnists. But, point taken. I suppose we’ll just have to agree to disagree about whether or not using a rape charge would be/is an effective way to get Assange in the hands of INTERPOL for other reasons.

  118. sna
    sna December 7, 2010 at 5:39 pm |

    Don’t mean to de-rail this thread, but this does seem like an appropriate place to just ask about something I’ve wondered for a long time. At age 16 I was visiting my old hometown and stayed over at a friend’s apartment. I watched a movie with her on the bed, then she asked me to have sex with her. I said no, I wasn’t comfortable with that because I’d never had sex before and I wasn’t knowledgeable about to use condoms and for other reasons. She tried to convince me there was no risk whatsoever and asked me again and again to have sex with her. Again and again I said no. It got really late and she just kept asking, trying to persuade me. I wanted to go to sleep. So finally I said ok. She pulled down my pants and I don’t remember much more (I think I was partly asleep) beyond it being really unpleasant. I hated it and I hate thinking about it.

    (The previous night I had gone to sleep alone on the couch and woke up with her sleeping directly on top of my body. I’d sort of pushed her off and got on with my day. I wish I’d figured out what was going on.)

    It wasn’t physically forced or violent in any way, but it sure felt coerced. I was kind of messed up when it came to sex and relationships for the next year or so. What was I going to do, after saying no that many times? Leave the house and go sleep on the street? Some of my best friends say it was basically rape. It sounds like, from this post, if laws were more progressive it officially would be.

    Ugh.

  119. manboobz
    manboobz December 7, 2010 at 5:50 pm |

    Excellent piece. I link to it in a blog post of my own on Assange.

    Also, for anyone who hasn’t yet read the Kate Harding piece in Salon (linked at the end of the OP above), I highly recommend it. Cuts through a lot of the nonsense that’s been spewed about this case.

  120. Jim
    Jim December 7, 2010 at 5:52 pm |

    Sheelzebub: Actually, Jim, what hits a nerve is when you fucking lie about what people actually said. But no matter. I don’t expect integrity from you.  (Quote this comment?)

    We’re even then. It’s your lack of humanity that sets me off. You’re a gender bigot and you’re proud of it.

  121. Sheelzebub
    Sheelzebub December 7, 2010 at 5:57 pm |

    Actually, Jim, dear, I’m far above you since I don’t resort to lying. Nice try, though.

    Go away now, the grownups are talking.

  122. Nick
    Nick December 7, 2010 at 6:02 pm |

    I think that I’m the same page as Jill regarding withdrawal of consent and rape. And while I was skeptical at first, I’m increasingly convinced (after reading the article and comments) that consent can be invalidated due to fraud.

    However, I’m seeing a serious inconsistency regarding men lying about condoms v. women lying about the pill. In an earlier comment Jill said:

    Jill: The difference, to me, is the bodily harm element.A man not wearing a comment when he claims to have been wearing a condom attaches a degree of bodily harm to his partner that doesn’t exist with birth control…  

    However, Jill also took great pains in the article to point out that:

    “Withdrawal of consent should be grounds for a rape charge (and it is, in Sweden) — if you consent to having sex with someone and part of the way through you say to stop and the person you’re having sex with continues to have sex with you against your wishes, that’s rape….” and

    “…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.”

    So I’m to understand from the article that the significant question in regards to rape is the status of the consent. If there is consent, no rape. If there isn’t consent, there is rape. Force has nothing to do with it, aside from possibly an aggravating circumstance that might increase sentencing. Fair enough, that is essentially my view as well.

    However, taking a look at Jill’s first quote regarding women raping men by lying about being on the pill, it appears that Jill wants to add the extra element of bodily harm.

    I whole heartedly agree, that a man lying about a condom is far more serious than a woman lying about the pill. But why aren’t they both rape? Why is consent king and physical force irrelevant in one instance, but bodily harm suddenly a key component in the other? Why is there a hesitation to say a woman can rape a man through deception?

    P.S.: I took out excerpts from the article as a convenience. No quote mining intended. Please correct me if I have mis-characterized the arguments above.

  123. Kristen J.
    Kristen J. December 7, 2010 at 6:03 pm |

    sna,

    One of the difficult things here is parsing through which meaning of rape is relevant. I linked to a post above that you might help you sort through your own feelings about this and you’re welcome to comment there as well. But to briefly summarize…you experience, however you define it, is true. It may or may not fit into legal definitions of rape, but those legal definitions aren’t concerned with victims and their experiences. If you define your experience as rape, then that’s what it is and please don’t allow someone else to invalidate or define that experience for you.

  124. Platypus
    Platypus December 7, 2010 at 6:03 pm |

    Silver: The politics is what make the whole thing so difficult.Wouldn’t it have been better for everyone involved if Sweden had delayed prosecution until the current storm over the diplomatic cables had died down?He should be tried and punished if guilty of rape, of course. However, attempting to do that in the current environment seems like a recipe for stirring up conspiracy theories.My biggest problem with the way Assange has been treated are the death threats by people who should know better.

    That would mean that goverments actually cared about the victims or the truth of the charges instead of using them to achieve their political goals.
    For example, the UK denied bail for Assange, despite him turning himself in(“yeah, I’m gonna turn myself in, post bail and then flee!” Instead of for example, just fleeing without all that theater).
    Or that they want to put him in solitary without any communication allowed with the outside world during the investigation.
    Nope, nothing political here, they just care about the victims so-so much.

  125. karak
    karak December 7, 2010 at 7:00 pm |

    @Nick–

    A condom changes the structure of a sexual act. When you say, “Wear a condom” there are a couple meanings buried in that.

    1. I do not wish to become pregnant.
    2. I do not wish to risk an STD.
    3. I do not wish for your skin to touch my genitals.
    4. I do not wish for you to deposit organic fluid in my body.

    These all, to some extent, involve something happening to a woman’s body. Having something in it, on it, or touching it.

    When a man asks a woman to if she’s on the pill, he’s saying.

    1. I do not wish to get you pregnant.

    Which might be referring to his feelings about the woman, his finances, his desire to have children, but it doesn’t affect his body.

    In essence, lying to a woman about wearing a condom affects her bodily integrity–and that argument has always been a cornerstone to rape. Impregnating a woman does not lead to a loss of bodily integrity in the same way.

    All that said? Women who lie about birth control and men who lie about vasectomies (in order to be impregnated or impregnate a partner) are god-awful fucking terrible people.

  126. Susie Bright
    Susie Bright December 7, 2010 at 7:16 pm |

    Jill, this is excellent. This is a moment in the news where an ethical and feminist issue arises, and you’ve seized it. I wish all the black ops and subterfuges weren’t making such a mess of it, but you are right to get the heart of the matter, EVEN IF NO ONE ELSE DOES!

  127. Politicalguineapig
    Politicalguineapig December 7, 2010 at 7:18 pm |

    Sheelezebub: Um, I’m sorry for the minor derail, but it wasn’t Boo Radley, it was Tom (last name dropped down memory hole) who Atticus Finch was defending. That was gonna bug me for the rest of the night.

  128. Aaron
    Aaron December 7, 2010 at 7:43 pm |

    The distinction that lying about a condom can cause bodily harm while lying about the pill can’t seems right. But it’s not a relevant distinction. At the point where unintentionally getting a girl pregnant imposes a large financial burden and carries with it social stigma and shame as a “dead-beat dad” it would be sort of odd to say that the man’s interests aren’t implicated, even if the interests aren’t bodily harm interests, or if it isn’t quite as dire a situation.

    In fact, the law currently recognizes this fact, it’s called “wrongful birth,” and if a pregnancy occurs under false pretenses (it’s not his and he thinks it is, or she lied about birth control) he isn’t legally obligated to care for the child as long as he disavows parenthood relatively quickly (don’t know the exact timeline on this, plus it varies by jurisdiction) and establishes his claim.

    Really, whether it’s rape or not is a moot point. I think this also clearly establishes that the same courtesy (protection from fraud in sex that implicates people’s material interests) should be extended to women, if it isn’t already.

  129. Our Julian: Restoring our distrust in institutions – Culture Mulcher

    [...] Outside the Beltway, suspicious; Feministe, damning. Comments (0) | [...]

  130. Marian Dalton
    Marian Dalton December 7, 2010 at 7:50 pm |

    A well-written, well-argued rational post. It’s a shame that – even with further clarification of the charges as you mention above – the media are still focused on the condom issue. They treat it as trivial, when it’s anything but.

    Consent is critical – and arguably, it is perhaps even more callous and reckless element to coerce/force a woman to have unprotected sex in a world where the worst possible long-term consequence could be not unplanned pregnancy, but death.

  131. Aaron
    Aaron December 7, 2010 at 7:51 pm |

    Wait, shit, wrongful birth is a different thing. It’s “fraudulent misrepresentation regarding birth control.”

  132. Andos
    Andos December 7, 2010 at 8:24 pm |

    I just wanted to draw your attention to a research report released today from Australia entitled: “Insights into sexual assault perpetration: Giving voice to victim/survivors’ knowledge”. Available at http://www.aifs.gov.au/institute/pubs/resreport18/rr18b.html

    In the context of such a high profile sexual assault allegation, this report is very topical. It challenges the ‘popular’ conceptions that surround sexual assault through the experiences of 33 victims/survivors, and a lot of those are applicable to some of the knee-jerk defences of Assange in this case.

  133. Twenty links about Assange, consent, and rape | Alas, a blog

    [...] Jill at Feministe’s post is especially good, focusing on legal questions around rape, consent, and withdrawal of consent. [...]

  134. Are
    Are December 7, 2010 at 9:12 pm |

    karak: @Nick–A condom changes the structure of a sexual act. When you say, “Wear a condom” there are a couple meanings buried in that.1. I do not wish to become pregnant.
    2. I do not wish to risk an STD.
    3. I do not wish for your skin to touch my genitals.
    4. I do not wish for you to deposit organic fluid in my body.These all, to some extent, involve something happening to a woman’s body. Having something in it, on it, or touching it.When a man asks a woman to if she’s on the pill, he’s saying.1. I do not wish to get you pregnant.Which might be referring to his feelings about the woman, his finances, his desire to have children, but it doesn’t affect his body.
    In essence, lying to a woman about wearing a condom affects her bodily integrity–and that argument has always been a cornerstone to rape. Impregnating a woman does not lead to a loss of bodily integrity in the same way.All that said? Women who lie about birth control and men who lie about vasectomies (in order to be impregnated or impregnate a partner) are god-awful fucking terrible people.  

    Karak,

    While I agree (and from the sounds of it, Nick agrees) with your observation that the direct physical harms risked as a result of condomless sex are greater, Nick’s point is quite correct. If consent is paramount in determining whether something is or is not rape, the deceived party’s appraisal of those risks isn’t what makes something rape or not rape. Intentionally breaking the terms of the consent is what makes it rape. A woman may feel that she’s being subjected to great risk if a condom is not used or she may feel that she’s being subjected to minor inconvenience. If consent to preagreed terms is what matters, both are rape– irrespective of the victim’s thought process. This is the classic problem of qualifying consent.

    So there’s no confusion I feel that “condom deception” is disgusting and shouldn’t be shrugged off as not sexual assault.

  135. Bagelsan
    Bagelsan December 7, 2010 at 9:18 pm |

    At the point where unintentionally getting a girl pregnant imposes a large financial burden and carries with it social stigma and shame as a “dead-beat dad” it would be sort of odd to say that the man’s interests aren’t implicated, even if the interests aren’t bodily harm interests, or if it isn’t quite as dire a situation.

    And that’s why god invented condoms. Problem solved, very very concerned MRAs.* And problem solved for you, too, very very concerned fluffy bunnies who don’t want to drop out of fluffy bunny school to support their half-human-half-bunny unwanted offspring! ;p

    *(Not necessarily you, Aaron.)

  136. Scottish Socialist Youth » The good, the bad and the leaky

    [...] not a socialist. For a brilliant article on the meaning of the word ‘consent’, visit Feministe. No means no, and tricking someone in to consenting to sex is rape. That goes in all cases, not [...]

  137. PrettyAmiable
    PrettyAmiable December 7, 2010 at 11:04 pm |

    Silver: Wouldn’t it have been better for everyone involved if Sweden had delayed prosecution until the current storm over the diplomatic cables had died down?

    I think instead of conjecturing, we should assume the victim may or may not prefer to prosecute now, and that waiting has as many drawbacks for her as doing it now.

  138. Justin
    Justin December 7, 2010 at 11:25 pm |

    All very interesting. One thought I have is the importance of meeting the conditions of sex (“you’ll wear a condom, right”) and the request to stop as it pertains to rape. Is it considered rape if the partner finds out after the act that conditions of sex weren’t met or do they specifically have to tell the other partner to stop while the act is taking place because conditions weren’t met?

    The reason I ask is that there are lots of conditions/promises that people assert to get others in bed (“yes, I’ll use a condom”, “yes, I’m on the pill”, “yes, I’m clean”, “no, I’m not married”, “yes, I’ve had a vasectomy” etc.). Therefore, does finding out later that you were deceived imply rape? Or does it have to be more directly related to the act (i.e. wearing a condom, wearing a diaphragm, being on the pill, having a vasectomy)?

    I think the vasectomy argument dismantles some earlier distinctions about bodily integrity (though I doubt anyone would believe the “yeah, I’ve been snipped” claim).

    Further, I think that making bodily-integrity issues central to the determination of rape is a little flimsy. Mainly because I feel like rape is as simply defined as trying to compel someone to do something (sexy) with their body that they don’t want to do unless certain conditions are met. Regardless of their reasons why they don’t want to do something, the fact remains that they should have the right to determine when and how (and under what conditions) they give consent to another person to access their body for sex.

    Thoughts, comments?

  139. Stelios Theoharidis
    Stelios Theoharidis December 7, 2010 at 11:36 pm |

    Now I understand stop means stop that is self evident. I wear a condom for my own sake more than anothers. Although, I don’t personally believe in lying, it is quite normal behavior to either lie or not disclose information on both sides, male and female, particularly in the case of random sex. It is because of this that I am having issues with this notion of conditional consent. That seems to be promulgated under ‘we can have sex but you have to use a condom’ because it extends into a lot of different areas.

    If an individual has sex with another person under either an assumption or a lie then it is conditional consent. The case recently occurred with a Israeli woman and a Palestinian man. The woman sued for rape, (although I can’t remember here) either she assumed or he lied about being Israeli himself. Now in that case we have conditional consent again. He received 3 years in jail. The judge indicated that she was looking for a nice Israeli man to have a relationship with, which is a bit odd since they met on the street and had sex in a semi-abandoned building.

    Say I had random sex with another person under the assumption or under their lie that they were not involved in another relationship, they do not have an STD, or that it would lead into a more significant relationship. Is that a conditional consent in the same regard?

    This is some murky water to be treading.

  140. haley
    haley December 7, 2010 at 11:45 pm |

    When talking about rape I definitely agree that consent is key. If consent is not given or withdrawn at ANY point for any reason, and the partner fails to do so, than the subsequent acts are rape. The value of consent is what needs to be respected and taught.

    I also think a more rationale society would be able to acknowledge that people are complex and that a person can be very strong, influential or positive in some regards and unethical or wrong in others.

    If evidence shows he raped either of those women he should be punished accordingly. Does this discredit his “leaks”, or his political work…no. As a female I’m not going to trust him personally or think of him as a feministe ally, but that doesn’t mean I can’t read the works he has helped leak. That doesn’t mean I won’t value any future documents released.

    So often in cases of rape involving famous, influential or famous men, people are so desperate to preserve the “good” image, the good things about someone, that they lash out against the victims. I wish we could drop the Christian “good or evil” dichotomy and accept that people are complex.

  141. PrettyAmiable
    PrettyAmiable December 7, 2010 at 11:48 pm |

    Bagelsan, you’re really minimizing the plight of bunny rabbits. Just saying.

  142. Deekoo
    Deekoo December 8, 2010 at 12:28 am |

    Silver: The politics is what make the whole thing so difficult.Wouldn’t it have been better for everyone involved if Sweden had delayed prosecution until the current storm over the diplomatic cables had died down? He should be tried and punished if guilty of rape, of course. However, attempting to do that in the current environment seems like a recipe for stirring up conspiracy theories.

    Dear gods, no.

    In my opinion, the sooner you prosecute, the fresher everyone’s memories will be and the less time anyone who’s lying will have had to polish their story or manipulate witnesses; and waiting maximizes the reputation tarnish for all parties, as the gossip mill happily spreads everyone’s half-baked theories as ‘someone I know said that…’s (or links to various dubious news sources, as the case may be.)

    The only real reason I can see to delay prosecution to avoid looking like it were part of a conspiracy would be if the prosecution WERE in fact being manipulated by a conspiracy (and not a very clever one at that.). Everyone concerned deserves a swift and fair trial, not a ten-year media circus while they wait for everyone who could conceivably hate one of the parties to stop caring.

  143. Bloix
    Bloix December 8, 2010 at 12:47 am |

    And just to repeat, all of us here, no matter what we think, are fringe. This guy is mainstream:
    http://video.foxnews.com/v/4451060/beck-who-do-you-trust/

  144. Silver
    Silver December 8, 2010 at 12:55 am |

    Deekoo:
    Dear gods, no.

    Fair points. Although clearly the gossip mill is already in overdrive on this case. I’d certainly agree that delaying now would be a bad idea. My thought was that things may have worked out better, in this particular case, if, given the storm, the news of the charges wasn’t made public until after the cable release storm had passed.

    My awareness of the timeline may be off though. It is entirely possible that the charges were brought before the first release of cables. In which case, it may be that the timing of the release was somewhat planned to have the rape charges arrive during, thus increasing the martyr angle.

  145. Kathy
    Kathy December 8, 2010 at 3:27 am |

    Reuters has a detailed story and timeline.

    To call the situation muddy is making it sound more clear-cut than it is. Highly suggest everyone read this.

  146. Bagelsan
    Bagelsan December 8, 2010 at 3:31 am |

    Bagelsan, you’re really minimizing the plight of bunny rabbits. Just saying. PrettyAmiable

    Well then, I guess bunny rabbits should try not to be a species that is famous for having so much sex shouldn’t they?

  147. tipster86
    tipster86 December 8, 2010 at 4:28 am |

    Great post about withdrawn consent, and why it is rightfully and obviously rape.

    Some other issues:

    1) The charge for the second accuser is: “The fourth charge accused Assange of having sex with a second woman, Miss W, on August 17 without a condom while she was asleep at her Stockholm home.”

    Obviously it is impossible to give consent when you are asleep or unconscious, and many jurisdictions recognise this as a distinct situation objectively and automatically considered non-consensual.

    2) Is the consent invalidated because it was obtained be fraud/false pretences i.e. that he would wear a condom?

    Under the scenario understood here, it would require the accuser to have become aware he no longer was wearing a condom, and then withdrew consent, making intercourse after that non-consensual.

    But if the victim did not become aware Assange had not worn a condom until after the act, when she had given consent on that condition, does it render that consent invalid?

    We must consider the legal and moral implications of consent being invalided by the bad faith, recklessness or negligence of person not complying with the conditions of consent; independently of withdrawn consent.

    3) Did he transmit any STDs to the women?

    Whilst there is no evidence of this yet, it was obviously a concern of the women, both before intercourse (the demand he wear a condom) and after (requesting he take an STD test).

    Does Swedish law impose an extra duty of care onto STD carriers to protect their partners? Is there a duty to disclose STDs to potential partners?

    Any STD transmission is a separate assault with different – perhaps lower – duties and standards of consent, than the intercourse itself.

    4) Assange’s history with women.

    He went through a bitter divorce and child custody dispute from 1991-1999, instigated by a 1991 arrest for hacking offences. He is estranged from his ex-wife and son.

    His past is something to bear in mind as we learn more of the accusations against him, and his defence against them, paint a picture of his character.

  148. tipster86
    tipster86 December 8, 2010 at 4:46 am |

    @sna:

    No. You consented – “I said OK” – and later came to regret giving that consent. Respect for consent includes post-coital respect for the consent you gave.

    The only ambiguity is whether you did actually fall asleep, and whether acts were subsequently performed upon you whilst asleep, and whether your sleep automatically withdrew your consent. As you are not sure yourself what happened, I would be very hesitant to slur your partner as a rapist in this specific scenario; when the only fact you are sure of is that you gave consent and did not withdraw it.

    @Kristen J.

    But your not at liberty to capriciously “define” somebody as a rapist in a situation where consent was given. Respect for consent goes both ways: There is no such thing as a valid post-coital veto of past consent that you had validly given for past acts. You can only withdraw consent from present acts, and deny consent for future ones.

  149. Jan Wildeboer
    Jan Wildeboer December 8, 2010 at 5:01 am |

    The one thing I don’t understand in this whole case is that according to Assanges statements, he stayed in Sweden for three weeks, offering to talk to the prosecutor about the case and the prosecutor didn’t want to meet. It is also weird that according to Assages statements he specifically asked if he was free to leave Sweden after these three weeks and seemingly he was allowed to leave without objection from the swedish authorities. *After* he left the interpol warrant was issued, he/his lawyer appealed ant the higher court in Sweden decided to drop some of the accusations but still upholding the warrant.

    This case does have some strangeness embedded – on the procedural level. I am not going into discussing the actual charges here. I just wanted to pint out that this whole process was not following normal procedures AFAICS.

    What to conclude from this is sth I have my own personal opinion on, but that doesn’t matter. I just wanted to point out that some things here look dubious and they have nothing to do with the accusations but far more with a prosecution that acts in strange, non-typical ways.

  150. SoulmanZ
    SoulmanZ December 8, 2010 at 5:03 am |

    The case of the underage (raped) male is a weird one, and reveals a distinctly different gender inequality in play. Child support has nothing to do with it, as mentioned by others child support is decided based on the rights of the child – the man needs to support the child because he is the parent, rightly or wrongly. Of course, most 1st world countries would provide financial support to a student in college, so he wouldn’t have to drop out, but again that is another issue.

    The real issue in that case is he was paying child support to the mother. The mother should have been in prison. Rape as a crime is reduced by any instance of “oh, that isnt ‘rape’ rape”.

    That case is abominable from a criminal standpoint, not a civil one. It lessens all rape.

  151. lpl
    lpl December 8, 2010 at 5:28 am |

    Jill, I’d be interested in seeing your response to sacundim’s latest comment. I find her/his STI testing counter-example convincing.
    More recently, Nick has argued that your first response to sacundim conflicts with your understanding of consent as being central to the definition of rape. Any thoughts there?
    I also feel like your arguments about the condom deception issue may be losing sight of this definition. To me, an important aspect of consent is that it’s simple thing which we can all easily understand–there are no excuses for “mistakes”. But you suggest consent can be dependent on statements that don’t pertain directly to the matter at hand (“Should I wear a condom?” as opposed to “Do you want to have sex with me?”). I’m afraid this could remurkify the issue. According to this way of thinking, a woman could be outwardly expressing an ideal example of “enthusiastic consent”, but depending on other, previously-stated conditions actually not be giving consent at all, even unbeknownst to her. Of course, she would still be aware of what types of sex she was OK with having, but not knowing what kind she was having, she would not be aware that she was “not giving consent” to the act that was occurring at that moment.
    For the record, I do think this kind of deception should be illegal and punishable. But I think it’s a different sort of crime, a sort of “crime of information” and not something which should be conflated with rape.

  152. Henry
    Henry December 8, 2010 at 5:33 am |

    The sad part is that if it weren’t for Assange being involved, would Sweden have bothered to prosecute? we’ll never know the answer to this without digging through piles of police reports, but I can suspect the answer. I know what it would be in certain metropolitan police departments – no. Hopefully this case will make some police and prosecutors think twice about shoving these cases under the rug. You won’t change a mindset until people see these types of prosecutions in the paper regularly, with charges against regular non-infamous/famous people.

    Nice comments on the pill stuff, but there is more than financial harm. The male partner now has a child with someone he didn’t want to have a child with. I think a lot of the comments treat it as only a financial issue of “oh I now have this kid I have to throw money at to make go away” – that may be the media stereotype of unmarried fathers, but it’s not the truth. There’s a high level of emotional harm in such cases.

  153. lpl
    lpl December 8, 2010 at 5:49 am |

    [Jill:] On a different note, was this comment (directed towards Jim) really necessary?

    Jill:
    Well, no, it’s not.Because child support isn’t for the woman — it’s for the child who, if support is being paid, actually exists.  

    Even if Jim is wrong about this issue, the fact that he’s trying to relieve people of what he sees as innappropriately assigned financial burdens doesn’t mean he doesn’t care about children, as you’re implying. You’re confusing the attribution of responsibility for the child with making sure the child is cared for. They are different problems. Are we not allowed to talk about things like money in circumstances where they are related to more sensative topics?

  154. Seitenhiebe » Blog Archive » Wikileaks und Assange

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  155. unwesen
    unwesen December 8, 2010 at 7:23 am |

    Linnea:
    It is as if, somewhere, rape is not taken seriously as a crime.  

    I’m curious now: is there a time limit during which you can bring charges against a rapist in Sweden? I’m asking because in Germany there is. The specifics are somewhat more complex, but depending on whether penetration occurred or not, it may be ten or twenty years.

    What’s particularly sad about that is that — especially when we’re talking about people molested when they were children — it often takes longer than the law allows for the victims to come to terms with what happened and desire to bring charges against the perpetrator. If they do anyway, they can be court-ordered to withdraw their accusations.

    There’s has been a petition to change that aspect of the law, and it’s been rejected by Germany’s Bundestag. Now that’s resulted in charges brought against the Bundestag in the European Court of Human Rights. More (unfortunately all in German) here with the petition itself (in English) here.

    But really, I was mainly curious about how Sweden handles that.

  156. Viveka Weiley
    Viveka Weiley December 8, 2010 at 7:42 am |

    Given the very low rate of successful rape prosecutions, I remain skeptical that rape charges are effective as a way to fuck with dissidents.

    Conviction, sure. But we can see right now that the accusation alone is a fantastic way to fuck with dissidents. In particular, it has split the weird left-right pro-liberty alliance that WikiLeaks has going for it. The right-libertarians are going into gleeful blame-the-sluts mode, pushing the left-liberals to reflexive defend-women mode. We’ve been played.

    Consider the above thread – suddenly leftists are calling Assange white and privileged, pointing out that his maleness makes him not really oppressed. As if having your own government threatening to withdraw your passport, banks refusing to accept money for your legal defence fund, government officials and media commentators credibly calling for your immediate murder is not oppression.

    Where consent to sex was given and then withdrawn, but the withdrawal of consent was wilfully ignored, then rape has occurred. However the presumption of innocence makes it very hard to prove without a confession from the perpetrator. In this case one of the alleged victims deleted exculpatory tweets, which is an offence in Sweden and makes the conviction even less likely.

    But people who have been accused of rape, especially if that accusation has been headline news all around the world, will never
    be considered trustworthy again.

    And meanwhile the extradition warrant serves to get Assange out of the UK, which would not extradite him to the US if he might face the death penalty there. And into Sweden, which has allowed itself to be used as a base for US Extraordinary Renditions. Which to remind you, is when someone is secretly flown by the CIA to a secret location for torture and/or execution without trial.

  157. PrettyAmiable
    PrettyAmiable December 8, 2010 at 8:01 am |

    Silver: My thought was that things may have worked out better, in this particular case, if, given the storm, the news of the charges wasn’t made public until after the cable release storm had passed.

    And again, unless you’re the victim, it has absolutely nothing to do with you. Why don’t we support her and her decisions instead of belittling her for timing?

    Seriously, fuck off. Assault victims have enough to deal with without douchebags questioning our every fucking move like it’s somehow up for debate.

  158. Balloon Juice » Blog Archive » About Assange

    [...] I still have no idea what he is actually charged with, but here are two takes on the affair you’ll find informative- one from Pandagon and one from Feministe. [...]

  159. Innocent until proven guilty: Assange deserves our (conditional) support | Left Futures

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  160. Alara Rogers
    Alara Rogers December 8, 2010 at 10:24 am |

    A couple of points:

    Regarding the woman who lies about birth control versus the man who lies about a condom, there’s a couple of factors that make it a lot harder to call what the woman did ‘rape’, although it’s usually a bad thing anyway. Pregnancy happens to a woman’s body. A man who is forced to become a father against his will is harmed emotionally and he’s harmed financially, but he is not harmed *physically*. The crime would be much more similar to crimes such as upskirting women or voyeurism or posting nude pictures of your girlfriend on the Internet — it’s an emotional violation revolving around sex, it may cause financial harm, but it is not a physical violation in any way.

    We also have to consider that because of the different social power of men versus women, and the stigma against birth control pills and women’s sexuality in general, a woman is much more likely to employ lying about her fertility as a self-defense strategy, while a man is more likely to employ it as a means of either getting sex through deception or exerting power over women. It’s *possible* to imagine a woman lying about being on the pill in order to maliciously establish power over a man by conceiving his child against his will, but when I imagine women who lie about being on the pill, I mostly picture women who are afraid something bad will happen to them if they tell the truth. Also, if a woman can rape a man by claiming she is on the pill when she’s not, wouldn’t that imply she can rape him by claiming she’s not when she is? If he wouldn’t have had sex with her if she was on the pill, because he’s religious and he believes the pill is murdering babies, so she lied about it, is that rape?

    Finally, one needs to point out that if a woman gets herself pregnant against a man’s will, she suffers from exactly the same liabilities he does, plus additional ones. She is also emotionally tied to someone who didn’t want to be tied to her. She is also financially liable for the baby. Unless he’s a superstar who makes millions while she’s a waitress, she will pay more than he ever will… men who complain about child support often seem to forget the custodial parent actually pays more, unless the wealth of the two parents has a gigantic disparity. And she has to suffer the physical pregnancy, while he does not. Of course, she consented to all this and he didn’t. But it still means the harm caused was greater on her end, even if she chose it. Whereas a man who removes his condom during a one-night stand may well get away with it entirely.

    So I agree that a woman who deliberately lies about being on the pill in order to conceive a child against a man’s will, intending to force him to pay child support, is a bad person, but I don’t think the majority of women who lie and say they’re on the pill fall in that category, and I think the entire category is almost entirely fictional — I mean, there may be a tiny, tiny number of women who behave like that, but honestly, who does themselves serious harm in order to get one over on someone else? Even in our pop culture, most women who trick a man into fatherhood do so out of a mistaken belief that he will really love being a father, or that it will bring him closer to her — they’re doing something stupid because they think it is a loving act.

    Secondly, regarding the female rapist who managed to force her victim to pay her child support… I agree with SoulmanZ, and I’ll go a step farther. Why was a convicted child molester allowed to keep custody of her baby? If a woman rapes a teen boy, she is a child molester. She is not a safe parent for a child. People have had their kids taken away from them because they don’t speak English or because they took photographs of themselves breastfeeding or because they refused a c-section. Why is a *rapist* allowed to keep her baby? Especially a rapist who preyed on a child? That case was a horrible, horrible travesty of justice; the rapist’s parental rights should have been terminated, her baby taken from her, and her victim should have been given the option to take sole custody (with his family’s support, since he was underage) or give the baby up for adoption.

    It’s true that child support is for the child, and one parent should never be permitted to unilaterally escape child support at the expense of the other… but rapists should never be given sole or primary or in fact any custody of a child, and *especially* not if they are people who raped children. In fact if there is a legal means to force a rapist to pay child support while preventing them from ever having custody or even visitation, I would be in favor of that. And while cases of the rape of adults might bring in financial motives to lie if there is such a law, I think statutory rape is black and white… you have sex with a kid who is underage when you are more than four years older than them, you are a rapist. Period, end of story, and if a child results from that rape YOU DO NOT GET CUSTODY. The choices should be adoption or the victim gets sole custody, entirely at the victim and victim’s family’s discretion… rapist gets custody shouldn’t even be on the table.

  161. BlackMike.net
    BlackMike.net December 8, 2010 at 11:12 am |

    Die Welt und ihre Sanktionen gegen Wikileaks…

    Momentan, man hoert es aus allen Medien, werden ueberraschend harte Sanktionen gegen Wikileaks oder alles, was mit Wikileaks zu tun hat, gefahren. Was mich dabei ueberrascht, ist die Tatsache dass hier Mittel angewendet werden die laut frueheren Aussag…

  162. Dilapidus
    Dilapidus December 8, 2010 at 11:29 am |

    Melissa: Here’s what I don’t get:Why is it taken as common knowledge that it’s horrible and manipulative and evil for women to say they’re on the pill when they’re actually not…but all in good fun for a man to say he’s using a condom when he’s actually not?  

    Well, at the very least, it’s clearly manipulative to claim to use birth control when you are not. As far as your “all in good fun” assertion, Is that the case somewhere? I’ve never heard that, and I strongly doubt that it’s the societal standard you make it out to be. Quite the reverse, actually. Lying about a condom can (and should) get you arrested if you have any communicable diseases or reason to suspect you do.

    Both situations are clearly offensive.

  163. makomk
    makomk December 8, 2010 at 11:30 am |

    PrettyAmiable: It wasn’t the assualt victims that chose the timing of the charges and arrest warrants. Nor was it the assault victims that decided to leak repeatedly details of the investigation to the press that only the police knew, leaks that were against police rules, would normally have damaged their chances of obtaining a successful conviction, and may even have been illegal. I’m not convinced they really benefit from the way this has been handled.

    Alara Rogers: that’s the other thing, a huge amount of effort goes into ensuring that women don’t have the liabilities you talk about. There have been very successful campaigns to legalise abortion so that women can choose not to “suffer the physical pregnancy”. There’s also a network of adoption agencies open to women who don’t want to bear the financial liabilities of having kids. Of course, neither’s an easy way out and both of these choices mean the women in question don’t get to raise their kids, but the fathers generally doesn’t even get the option to do that.

  164. Noli Irritare Leones » Blog Archive » “Making the World Safe for Promiscuity”

    [...] Filipovic, you see, wrote a post about the rape, sexual harassment, and duress charges against Julian Assange, and for this she was [...]

  165. jamesEQ
    jamesEQ December 8, 2010 at 11:56 am |

    Jill
    You wrote in the OP, ‘Consenting to one kind of sexual act doesn’t mean that you consent to anything else your partner wants to do; if it’s agreed that the only kind of sex we’re having is with a condom, then it does remove an element of consent to have sex without a condom with only one partner’s knowledge.’

    I agree. A woman consenting to PIV sex with a condom DOES NOT mean a woman is also consenting to PIV sex without a condom. The charge would rightfully be rape.

    And So, a man consenting to PIV sex if woman says shes on the pill DOES NOT mean a man is also consenting to PIV sex if she has not taken the pill. The charge equally, is of rape.

    The man would not have consented if the woman had been honest that she wasn’t on the pill. It is rape. It is rape

  166. Jake
    Jake December 8, 2010 at 11:58 am |

    I get that consent-based laws are a good idea, but I think that it’s important to draw a line between this kind of ‘sex by surprise’ and the forceful rape was usually think of. Obviously lying about using a condom is bad and should be punished somehow, but it’s not even on the same level as assaulting and forcefully raping someone. I hesitate to call the lesser crime rape, because of how it diminishes the seriousness of real rape. For lying about a condom, assuming that the woman doesn’t get pregnant or catch on STD, a fine seems like a perfectly reasonable penalty, while assault should put you in jail for a pretty long time.

  167. Sheelzebub
    Sheelzebub December 8, 2010 at 12:00 pm |

    Not quite, Viveka.

    The blame the sluts mode has been going in full force among lefties as well, as well as “well, they were feminists and they’re all out to get men,” “rape survivors don’t really act that way,” and “OMG! One of them wrote for a publication fronted by a CIA plant, and had interactions with a feminist group in Cuba that was linked to him, so she’s totally got huge strong ties to the CIA!!11! ELEVENTY.” Happy snitch-jacketing day!

    Assange’s credibility in the left isn’t being hurt at all–other than a handful of feminist blogs that are routinely dismissed by most lefty-progressives anyway (which makes my mind boggle at the idea that it is now so important for us to shut up and take one for the team when–hello–it’s obvious that no one really gives a fuck if we’re on the team or not). He’s got plenty of support among the left, even among the women who are pointing out that the sexism people are engaging in is not okay. Pointing out that engaging rape apology and a witch-hunt against the two women involved is not productive, plays into right-wing misogynist narratives about women and rape, and actually serves to divide the movement has gotten us a chorus of “INNOCENT UNTIL PROVEN GUILTY” (which, um, no one has said he doesn’t deserve a fair trial) and “you think all sex is rape, you victim tripping harpy.”

    Which, sorry, is fucking bullshit.

  168. wikileaks/rape charges: doesn’t have to be either/or | What's that you said?

    [...] already referenced Feministe’s excellent description of why the charges themselves are not absurd and why Assange and his accusers deserve their day in [...]

  169. WikiLeaks arrestatie: het is de schuld van radicale feministen « De Zesde Clan

    [...] er terecht op dat de exacte details van wat er gebeurde tussen Assange en de vrouwen erg vaag is. Weblog Feministe: The actual details of what happened are hard to come by, and are largely filtered through tabloid [...]

  170. Jim
    Jim December 8, 2010 at 12:15 pm |

    Alara, I agree with just about your post. Thats was a really good treatment of the subject. Makomk is right too, but that doesn’t invalidate a thing you’ve said.

    Just curious though; where do youlive that there is some stigma around taking the Pill? Have things changed that muc? People used to be quietly smug about it when it came out.

  171. Assange’s rape charges « Feminist Philosophers

    [...] not really rape, something only those crazy Swedes could call ‘rape’. This is not true. One of the charges is that a woman agreed to have sex with him on condition that he wore a condom. [...]

  172. PrettyAmiable
    PrettyAmiable December 8, 2010 at 12:26 pm |

    makomk: PrettyAmiable: It wasn’t the assualt victims that chose the timing of the charges and arrest warrants. Nor was it the assault victims that decided to leak repeatedly details of the investigation to the press that only the police knew, leaks that were against police rules, would normally have damaged their chances of obtaining a successful conviction, and may even have been illegal. I’m not convinced they really benefit from the way this has been handled.

    It was definitely their choice to report the matter at all. They could have waited or not reported. And suggesting that we know better that they would have preferred to wait to prosecute because the circumstances are icky is incredibly arrogant. Maybe she just wants to be done with it and move on.

    We don’t know, it comes off as if we’re second guessing the victim and know what she wants, let’s stop.

  173. Hershele Ostropoler
    Hershele Ostropoler December 8, 2010 at 12:29 pm |

    Several points, not all of which have been raised with this wording:
    1a) Assange being a rapist, if he is, does not make anything Wikileaks has done wrong.
    1b) Assange not being a rapist, if he is not, does not make anything Wikileaks has done right.
    1c) Governments not liking something Wikileaks has done does not make Assange not a rapist.
    2) I’m having trouble understanding how sex with someone who doesn’t consent is ok, whatever the law says, even if you’ve had consensual sex with them before. Even milliseconds before.
    3) It’s weird to me that it can ever be legal to knowingly have nonconsensual sex with someone, but on the other hand I’m honestly unsure how you have sex with someone without their consent without using force or the threat of force, unless I’m interpreting “force” much more broadly than the courts do.

    Though I guess that underlies caselaw saying that consent can’t be withdrawn: continuing after the other person says to stop is arguably not force or the threat of force. Otherwise I see no way to have sex with someone who isn’t actively cooperating that doesn’t require force.

    OK, so that happened to me once – a guy I slept with said he would use a condom and then didn’t, and I didn’t know he hadn’t put it on. It sucked, but it wasn’t assault.

    Sure it was, in many jurisdictions. It’s certainly your right not to go to the police, and I’m not going to tell you you felt assaulted if you say you didn’t. But some people do, and it’s behavior we as a society have an interest in discouraging, so I have no problem with treating it as a crime. You have a right not to go to the police if your car gets stolen too.

    Judging from what I have heard about Assange’s general messiah complex, he sounds like the sort of person who is most at risk for ignoring boundaries. The normal scepticism, as for any allegation, is in order, but I lean towards expecting that we’ll all find out he either did rape one or both women or came very close to it.

    This I actually agree with, except for the “normal scepticism” part, since I don’t think rape ausations should be treated with any more skepticism than any other crime. But yeah, Assange’s behavior in the public sphere points to someone who feels he gets the supposed perks of saving the world, including sex when he wants it, how he wants it, and with whom he wants it.

  174. groggette
    groggette December 8, 2010 at 12:44 pm |

    tipster86: No. You consented – “I said OK” – and later came to regret giving that consent.

    You’re full of shit tipster. Sna didn’t want sex, repeatedly said no and finally relented to her presure in order for her to let off him and leave him alone when it was done. That’s not fucking consent. She should have respected Sna’s first NO and not continued pressuring/coercing until she recieved a yes.

    Sna, my first PIV sex was in a situation remarkably similar to yours. I repeatedly said no but that obviously wasn’t working so I finally just said yes in the hopes it would all be over with quickly and he could finally leave me alone. It wasn’t consent, it was surrender and I do consider it rape. I agree with the other commenter that it was whatever you make peace deciding to label it as. Good luck to you.

  175. Martin
    Martin December 8, 2010 at 12:50 pm |

    I didn’t ready all 147 posts so if anyone already brougth up my point just ignore this post.

    Just to put my two cents in :

    Couldn’t “not using a condom” despite saying so better be prosecuted as attempted aggravated assault (or aggravated assault, if std or pregnency are the outcome). It’s still a serious crime with punishment from fines to 10 year in prison (in germany) – even the normal aggravated assault can get you 5 years in prison – but it seems (for me) to better fit the crime.
    Because if you leave aside the possible consequences like std or pregnancy (for which assault for me seems better fitting than rape) you are left with “breaking ANY conditions for or agreements about the sex agreed on” is rape, e.g. falsely telling someone you love him/her or aren’t married to get him/her into your bed even as you know the person wouldn’t otherwise have had slept with you (or another example i strongly disagree with: a man in isreal was prosecuted for rape after falsely telling a woman he was jewish to have sex with her).

    You also don’t have the condom/pill problem which comes up and up again because you have a clear rule which applies to both sexes: if you (even potentially) harm your partner you commit a crime.

    Greetings from germany

    Martin

  176. Egil Möller
    Egil Möller December 8, 2010 at 1:14 pm |

    Disclaimer: I’m a swede, who grew up in a consent-based framework

    I think there are a few important philosophical questions to ask, given a non-religious/non-honor-based sexual assault law:

    What can you consent to (gangbang, slapping, getting tied up)?
    What constitutes giving consent (verbal, non verbal)?
    When does consent have to be given (at the very moment of sex, or can it be given in advance)?
    What constitutes withdrawing consent (verbal, nonverbal, safe-word)?
    When can consent be withdrawn (can it be withdrawn post-factum?)?
    How do we handle misinterpreted signals (didn’t hear the “no”)?
    How do we handle situations where some or all involved are affected by drugs/alcohol?
    How do we handle situations where someone is sleeping (re. consent given in advance)?

    There are probably more questions, but those are the ones off of the top of my head.

    Sweden might not have gotten all of the above right, and this sometimes pops up in cases where BDSM is involved (there was a case only half a year ago, where the state was prosecuting someone in a BDSM-related case, where the “victim” didn’t at all like the prosecution, as she really liked what she’d been through, but some friend had turned her boyfriend in).

    So, what does this have to do with Mr. Assange? Not _that_ much – except, there are more questions than answers, and given the politication of the issue, we might never get any real answers.

    However, I hope this will broaden your discussion – please feel free to try to answer the above questions and see what that leads to. And maybe just for added fun keep an eye on whether your answers means that it’s quite possible for men to get raped by woman, and if that according to your definition is likely to happen often…

  177. Lib
    Lib December 8, 2010 at 1:17 pm |

    @SNA

    I don’t give a damn what Tipster86 claims, a person CAN NOT consent if their “no’s” aren’t respected. In your post, you noted you felt there was no other option, other than sleeping on the street, hence the final “yes” was coerced, and it was a verbal “yes” not an actual “yes”. Whomever kept pressuring you knew that you did not want to have sex, they ignored your “no’s” thus your boundaries and right to say “no”. When you right to say “no” is taken away, it is rape. NO ONE else get’s to determine your violation. What happened to you was REAL and NOT your fault!!!!

  178. Kerem
    Kerem December 8, 2010 at 1:25 pm |

    Thanks a lot for the article and the VAST comments section, it was enlightening (and embarrassing since I obviously overlooked some issues initially). It is clear that Assange should be tried if there are any claims whatsoever, there is no alternative. It may look or sound like a smear campaign, but what better way to dispel that than by facing it? I also agree that it better be done sooner than later, especially if we consider its impact on the leaks. But I do think that the rape issue, not strictly related to the Assange case, is as simple as people think, not even as simple as the complicated explanations here.

    I am especially intrigued by the examples of the female raping the male (I use rape as ranging from getting consent on disinformation to forceful intercourse) . It is not as hypothetical as you may think. I live in Turkey, where the sexual “ethics” is much more rigid as you can imagine, and fooling men into having babies to “tie them down” is more than stuff of urban legends. Many men would not complain, as there is practically no way to subvert the charges (and such a claim would actually undermine their sense of being a man, as it would not be clear to most men here why or how a man wouldn’t consent to sex, this was the case for my own statutory rape). Turkey has recently found that it actually SHOULD discriminate for women (and amended the constitution accordingly), and while I fully support this, it made the matters worse for the cases I mentioned, since it is both legally and socially unacceptable here (where everyone’s business is everybody else’s) to leave a child behind. It is clear that, looking at the numbers, there are more women benefiting from the latest amendment than men being framed, but I hardly think justice is a matter of statistics. If I were that guy, that would have been enough statistics for me. The same applies to everybody I assume. I don’t think false convictions should (or can) be regarded as “within reasonable boundaries of error” in any human-centric system. There is a huge difference between not being able to solve a problem and not even recognizing that there is one.

    I also would like to point out that rape is not a matter of children, and thus, not a matter of bodily harm in that way. A woman who did not get pregnant is not any less raped than one who has, nor than a man who has been raped. Furthermore, it should not matter what the misinformation caused (e.g. pregnancy) for calling it rape, it is, as Jill said, the lack of consent that matters. In that vein, I think it is inappropriate to suggest that the male victimization is minimal compared to the female in cases of rape by coercion using the bodily harm argument. I see that it is brought up largely due to its connection to the Assange case, but I feel that Jill has made a mistake by shifting attention from consent to bodily harm to account for the asymmetry between male and female coercion. I understand the point, and almost concur, but I still think it is a slippery way to argue.

    All in all, I think there is a HUGE problem with basing such allegations on victims’ statements, but I don’t see any viable alternatives so I suggest we keep things the way they are until someone smarter than I comes up with a better solution. I also think that more attention should be payed (especially in the field of sociology, maybe law at a later stage) to the interplay between gender inequality and the way it is embodied in sexual offences, especially for cases of non-conformant or underage males and conformant or predatory females in patriarchal cultures. It might also help to add in a perspective of geriatrocracy as well.

    Once more, thank you for successfully isolating the issue of rape from the issue of Wikileaks and putting the simplistic way the media presents this under spotlight, in addition to reminding me that I still have male prejudices even though I usually regard myself better than that. What would I do without the radical feminists slapping me into reality check every once in a while? If you are fringe, well, fuck the non-fringe.

  179. Kristen J.
    Kristen J. December 8, 2010 at 1:26 pm |

    tipster86: But your not at liberty to capriciously “define” somebody as a rapist in a situation where consent was given. Respect for consent goes both ways: There is no such thing as a valid post-coital veto of past consent that you had validly given for past acts. You can only withdraw consent from present acts, and deny consent for future ones. tipster86

    Dude, you are the reason I wrote this post. You’re conflating legal/ethical definitions of rape with experiential definitions. Stop. Read more carefully. I did not say anything about the other person’s guilt. I just told sna that ze has a right to zer interpretation of zer experience. If you can’t understand the difference I suggest you do some reading before you comment on another person’s rape experience.

  180. Jennifer
    Jennifer December 8, 2010 at 1:59 pm |

    There’s something I don’t get here, if a girl wakes up a guy she’s hooking up with by starting a sexual intercourse… some may think it’s every guy’s dream, but if it’s the other way around it can be considered rape? Someone explain to me how this is not also some kind of sexism.
    I can see the point though, totally. But up tu what I know (from articles on the development of events) when that intercourse finished she did not feel any kind of harm by him. They even went for breakfast together, she even asked him to see each other again.
    Now, if I put myself in the place of someone who’s in that situation: a man initiates a sexual relation with me while I’m asleep, he doesn’t wear a condomn (when I asked him to), and he carries on after I ask him to stop. If it’s THAT bad and I feel assaulted in any tiny way, I try to get away from him. If I don’t manage, I immediately tell him to go away after. The problem I see here is that of the assumption that sex is only enjoyable to men, and women are always the ones who suffer. Is it totally unacceptable to think that when a (second) sexual act is initiated by a man with a woman who the night before consented, and this woman tells him to stop JUST at the realization that he’s not wearing a condomn, but as he carries she no longer puts resistance??? I am assuming there was no other kind of (firm) resistence because if I feel assaulted by someone I simply couldn’t spend one more minute with him, even less think of the idea of having another encounter. Which was what happens in this case.
    According to the -little- info we have this woman only felt she had the motive to go to the police when she finds out on the same week he’d had sex with another woman. And because he wasn’t reachable in any way.
    Quoting a previous comment; if that happens to any normal coherent person, in the case you’re worried to have STD’s or getting pregnant, you go to the pharmacy, and you go to a clinic to get a test. Not call a woman -who is (oh coincidence!) the same the guy is staying with- and go to the police.
    I’m just angry at the fact that MANY women in the world sexually abused are unheard or not taken seriously and these women make this joke out of a sentimental disapointment.
    The woman who claims rape was head over heels for Assange, she had him in an altar, but she (most sure) didn’t know a thing about him. What I say is, take care of yourself and look who you take into your bed. I’m NOT, in any case, implying that rape is women’s fault for sleeping with who they shouldn’t, NEVER. But this is more a problem (as they themselves have stated) of attitude. So, to make sure you’re gonna get treated well (in bed, in a realtionship… whatever) be responsible and know who you’re interacting with, don’t be naive and irresponsible and when someone disappoints you, get revenge on the courts.

    I’m really sorry for writing so much, but I think everyone is talking too much about concepts and laws, and forget that this concerns people. And people (even less in the action of sex) are not thinking of laws or this complex considerations. So my opinion is we should take more into account the behaviour of these persons and their motives.

  181. makomk
    makomk December 8, 2010 at 2:02 pm |

    “It was definitely their choice to report the matter at all. They could have waited or not reported. And suggesting that we know better that they would have preferred to wait to prosecute because the circumstances are icky is incredibly arrogant. Maybe she just wants to be done with it and move on.”

    Which would be understandable, but it’s already been 4 months since the assaults, and somehow the prosecutors managed to arrange the warrant-issuing and arrest to coincide almost exactly both with Wikileaks releasing its most spectacularly controversial leak so far and with a multi-pronged attack on Wikileaks by the US of a kind it’s never encountered before. That’s really bad timing unless the main goal was to do maximum damage to Wikileaks.

    Oh, and the US is apparently already planning to take advantage of this arrest to extradite him to the US and try him for espionage. I’m guessing whether or not the rape charges even reach trial will depend on how much leverage the US has and how soon they want to have Mr Assange in their custody.

  182. Martin
    Martin December 8, 2010 at 2:06 pm |

    Hehe, i love intellectual challenges. So lets put tastefulness aside and give some straight answers:

    Egil MöllerWhat can you consent to
    (gangbang, slapping, getting tied up)?

    You can consent to anything you want as long as your decision-making ability can’t be taken into question (e.g. someone wanting to be killed and eaten by someone else could have his right to make decision taken away on the grounds that he suffers a mental illness and needs protection from himself)

    Egil Möller
    What constitutes giving consent (verbal, non verbal)?

    Only verbal for a simple reason: it’s far to easy to misunderstand non verbal signals (especially under influence of drugs). Saying “yes” or “no” is the only possible way to be sure that your partner really understands what you want to say.

    Egil Möller
    When does consent have to be given (at the very moment of sex, or can it be given in advance)?

    That’s the wrong question. Its not important when the consent was given, the important thing is that you can ALWAYS in any situation withdraw your consent.

    Egil Möller:
    What constitutes withdrawing consent (verbal, nonverbal, safe-word)?

    Only verbal (“no” or safeword) for reason given above.

    Egil Möller
    When can consent be withdrawn (can it be withdrawn post-factum?)?

    Consent can withdrawn as long as there is something to consent to. Of course you can’t withdraw afterwards, because that would mean your partner could be guilty of rape (sex without consent) because you changed your mind afterwards.

    Egil Möller:
    How do we handle misinterpreted signals (didn’t hear the “no”)?
    How do we handle situations where some or all involved are affected by drugs/alcohol?
    How do we handle situations where someone is sleeping (re. consent given in advance)?

    Misinterpreted signals are only possible in combination with drugs, as it is not likely someone would say “no” once and – as that didn’t work – just accept the situation instead of saying “no” again and again. On the other hand if someone didn’t withdraw the consent explict (e.g. only non verbal signals) it’s the benefit of the doubt.
    If both persons are seriously affected by drugs it’s again the benefit of the doubt, as it’s probably impossible to tell what really happened. If only one person is affected by drugs, you can have sex as long as the affected person can still consent (you know the risk doing stupid things because of drugs – if you do smth. you regret later, its your own fault). If the person can’t consent or can’t withdraw consent given early (affected by drugs, sleeping) sex would be rape.

    And of course you can rape a man: the easiest way would be for the man to be asleap, you could use a weapon to force him to have sex with you…

  183. Egil Möller
    Egil Möller December 8, 2010 at 2:15 pm |

    Oh, and a detail for the conspiracy theorists:

    Re. rape being taken lightly so not as good a setup as e.g. planting drugs: Sweden and the US are different, esp in this matter.

    I’m NOT implying that this was a set up, I’m just saying that rape is probably the crime with the strongest negative emotional connotations in swedish culture.

  184. groggette
    groggette December 8, 2010 at 3:04 pm |

    Martin,
    First off I agree with you completely about this:

    That’s the wrong question. Its not important when the consent was given, the important thing is that you can ALWAYS in any situation withdraw your consent.

    That said, I vehemently disagree with you that you can only give or withdraw consent verbally and your implication that being raped is a legitimate consequence of being under the influence of something because “you know the risk doing stupid things because of drugs”.

    I also resent that someone here is once again telling people like sna and myself that what happened to us wasn’t really rape because we were coerced into a yes. Fuck you.

  185. Hershele Ostropoler
    Hershele Ostropoler December 8, 2010 at 3:54 pm |

    I was about to defend Martin and say that in theory consent can be given, declined, or withdrawn non-verbally but as a practical matter it’s ambiguous, but then I thought of rolling over or pushing someone away — perfectly clear non-verbal methods of declining consent. Moreover, while consent vs non-consent can be ambiguous, enthusiastic consent vs non-consent generally isn’t.

  186. Martin
    Martin December 8, 2010 at 4:06 pm |

    groggette: That said, I vehemently disagree with you that you can only give or withdraw consent verbally and your implication that being raped is a legitimate consequence of being under the influence of something because “you know the risk doing stupid things because of drugs”.

    Of course you can show withdraw of consent non verbal but you can not expect the same clarity of meaning with some types of non verbal withdraw as when you say “no” repeatedly. I only make this point because some time ago a woman was writing in a german newspaper about her expirience with rape and one case was a man starting to touch her and despite her refusal she didn’t say “no” but instead remained passiv and hoped that he would unterstand that she didn’t want to have to sex. In this case it’s possible that he just didn’t care for her feelings but perhaps he thought she was ok with having sex and would have needed a strong refusal to understand that she didn’t want to.

    And i’m in no way suggesting drugs make rape ok. You clearly haven’t understood my comment. So here again:

    Martin: If only one person is affected by drugs, you can have sex as long as the affected person can still consent (you know the risk doing stupid things because of drugs – if you do smth. you regret later, its your own fault).

    All i say is:
    if you take drugs that make you loosen up or change your behavior in other ways but don’t render you unable to consent and then you consent to having sex with someone or under conditions you normaly wouldn’t have, it’s your problem.

    Martin: If the person can’t consent or can’t withdraw consent given early (affected by drugs, sleeping) sex would be rape.

    See? If the person under the influence is unable to consent its rape. So how did i suggest

    groggette: being raped is a legitimate consequence of being under the influence of something

    ?

  187. Aaron
    Aaron December 8, 2010 at 4:23 pm |

    I don’t know if anyone has made this observation before (I don’t think so in this thread), but it seems like one of the problems we’re having is that sexual assault is a spectrum and the law subsists on bright lines and clear definitions. So you get people demanding a clear definition when everything’s really all fuzzy and sort of blurs into everything else. People who realize that, on some more expansive definitions of “rape,” they might be considered a rapist, and naturally get defensive.
    I think this is a reaction we should understand, even if we are critical of it. To be gut-wrenchingly honest, I’ve worried about it myself, as a man (constantly questioning my own behavior, thinking about various situations I’ve been in, over-interpreting old memories. I hope to god I’ve never browbeat a woman into sex – ten “no’s” and one “yes” – but there’s honestly no way I can be sure in retrospect, only going forward, by trying to think more in terms of positive consent). But of course people are going to be hostile. Which I think means a couple things:
    1. maintaining the important distinction between *legal* definitions of rape and *experiential* definitions. We all know innocent until proven guilty, fair trial, etc, etc. No one needs reminders in that regard. But victims/survivors should have their experiences challenged and belittled in regular society, which will just deepen the deafening silence.
    2. realizing that arguments over whether something is “more” or “less” serious on the spectrum of sexual assault is unhelpful and insulting to people who’ve experienced this. I think we should try to avoid it, and to the extent we do talk about it it should be in terms of legal concerns and definitions ONLY, not experiences, as in #1.
    3. and I’m not sure about the status of this claim for most of you, but treating *perpetrators* as well with basic dignity and humanity, regardless of what they’ve done wrong. I’m willing to extend this attitude to nearly all criminals, as long as they’re not literally sociopaths (and I do mean literally). I think if we were less inclined to treat anyone as being ontologically bad at their core if they’ve done something wrong in their lifetime, there wouldn’t be this kind of fear and resistance from those who benefit from the narrow, awkward, arbitrary legalistic definitions of the status quo.
    Do I think we should abandon talk about “rapists?” Ehhh. Not sure. But there’s definitely an odd piece of deductive logic that goes on inside people’s heads that says “A rapist is a bad, awful person who has committed rape. I am not a bad, awful person. Therefore I am not a rapist. And by definition, if I am not a rapist, I cannot have committed rape!”

    So those are just some ideas, feel free to criticize.

  188. St Ulfsten
    St Ulfsten December 8, 2010 at 4:28 pm |

    Jim: That’s pretty surprising, considering the consequences could be an unwanted preganacy or HIV infection. I mean, OK, light sentences for really bad crimes are not uncommon, but this is still surprising.  

    In Sweden, it is illegal for a person with a vd such as HIV to have sex with someone without first informing them of their disease. You can be sent to several years in prison even if the sex partner doesn’t get infected.

    Hugo: Failure to cease intercourse after consent is withdrawn is, in California, legal rape with penalties far more severe than a $700 fine.  

    The $700 fine was just something which Assange’s lawyers made up. The facts are that
    a) The situation you described is considered rape in Sweden too and this of course carries a sentence of several years.
    b) fines are not fixed but depend on the wealth and income of the offender(except in trivial cases such as shoplifting)

  189. cottonsocks
    cottonsocks December 8, 2010 at 4:36 pm |

    it’s good to read a level discussion about the facts that surround these decision-making processes. thanks for the inputs/insights.

  190. Marle
    Marle December 8, 2010 at 7:19 pm |

    Jennifer: There’s something I don’t get here, if a girl wakes up a guy she’s hooking up with by starting a sexual intercourse… some may think it’s every guy’s dream, but if it’s the other way around it can be considered rape?

    Some guys (or even girls) might feel like it’s a dream to be woken up with sex, but some might be horrified. If a guy is horrified by being woken up with sex then it’s definitely rape. Which is why you shouldn’t wake people up with sex. Though it’s possibly cool if you’ve seen them for a while and they keep
    telling you it would be really hot to be woken up with sex.

    But up tu what I know (from articles on the development of events) when that intercourse finished she did not feel any kind of harm by him. They even went for breakfast together, she even asked him to see each other again.

    Sometimes women who are raped by someone they know and trust have trouble accepting what happened. It doesn’t mean that it didn’t.

    In this case, assuming that it did happen, there’s no way to prove enough in a court of law normally that it did. The only way to have enough evidence to convict is if he admits he forced them after they said no, and he’s not going to do that. Which I’m sure is why the first prosecutor dropped it. The second prosecutor only picked it up because of wikileaks, that is clear.

  191. Link Roundup: Assange Rape Case « Fighting with the Sky

    [...] Some thoughts on “sex by surprise” Well, no, I’m not sure it’s that straightforward. The actual details of what happened are hard [...]

  192. saywhat
    saywhat December 8, 2010 at 8:43 pm |

    anon: OK, so that happened to me once – a guy I slept with said he would use a condom and then didn’t, and I didn’t know he hadn’t put it on. It sucked, but it wasn’t assault. I left, went to the pharmacy, got Plan B, and went home. I would have never filed charges. Never saw the guy again, anyway.  (Quote this comment?)

    Uhhh, yeah I’m glad you didn’t get HIV, Hep C, genital warts, herpes or any other incurable and potentially fatal disease, and I’m glad you had easy access to a morning after pill which many many many people don’t. Frankly, the fact that it didn’t bother you very much doesn’t mean it wasn’t assault. If you consent to sex on the explicit understanding that you are taking the most important precaution short of abstinence to protect your life, and the partner arbitrarily decides to remove that protection, you have every right to feel assaulted.

    Assault is the intended threat of bodily harm. How was I not to feel threatened by bodily harm while I was waiting to find out the results of my HIV test?

  193. PrettyAmiable
    PrettyAmiable December 8, 2010 at 9:24 pm |

    makomk: Which would be understandable, but it’s already been 4 months since the assaults, and somehow the prosecutors managed to arrange the warrant-issuing and arrest to coincide almost exactly both with Wikileaks releasing its most spectacularly controversial leak so far and with a multi-pronged attack on Wikileaks by the US of a kind it’s never encountered before. That’s really bad timing unless the main goal was to do maximum damage to Wikileaks.

    I am not saying the timing wasn’t politically motivated. If you scroll up, I’m saying it’s bullshit to say this isn’t optimal for all parties because we have no idea what the victim wants. I have no idea how this isn’t the focus of this particular line of thought on a feminist website, because all we SHOULD care about is what she wants as the victim. Everything else is and should be irrelevant. You don’t know better about what she wants than she does, so let’s collectively stop assuming we do. For the umpteenth fucking time. Maybe she’d rather have waited. Maybe she would have preferred speeding it up. Maybe now is the right time. Let’s stop pretending we know what’s best for her. We don’t. You don’t. I don’t. Enough.

    Assault victims get told all the fucking time that what they experienced wasn’t assault. They get told that if they were really assaulted, they should have done this, or they should feel that, or they would be better off with this.

    Trust women.

  194. closetpuritan
    closetpuritan December 8, 2010 at 10:48 pm |

    I’m kinda disturbed by the people brushing off concerns about having victims of statutory rape pay child support with “it’s for the child’s benefit, not to punish people.” Well, yes, but we don’t just select people at random to pay for them. The reason we have their biological fathers generally pay child support is because the fathers are partly responsible for the existence of the child. Should someone who is too young to consent to sex be morally and legally held responsible for the existence of a child fathered with a significantly older woman?

  195. Bagelsan
    Bagelsan December 8, 2010 at 10:53 pm |

    I live in Turkey, where the sexual “ethics” is much more rigid as you can imagine, and fooling men into having babies to “tie them down” is more than stuff of urban legends. Many men would not complain, as there is practically no way to subvert the charges (and such a claim would actually undermine their sense of being a man, as it would not be clear to most men here why or how a man wouldn’t consent to sex

    “The Patriarchy Hurts Men Too (TM)”

    They even went for breakfast together

    Breakfast? How’d she fit that into her busy schedule of crying in the shower, rending her clothes and fainting? Doesn’t she know how a proper rape victim should respond?

  196. Kristen J.
    Kristen J. December 9, 2010 at 12:18 am |

    closetpuritan: I’m kinda disturbed by the people brushing off concerns about having victims of statutory rape pay child support with “it’s for the child’s benefit, not to punish people.”

    Agreed…it’s a product of a fucked up family court system…not to mention the abhorrent treatment of male victims of statutory rape.

  197. Black Hour
    Black Hour December 9, 2010 at 12:45 am |

    A few months ago, there was another rape case where an Israeli Palestinian man was jailed for lying about his religion to an Israeli woman. He was imprisoned for “rape by deception.”

    I’d be interesting in reading your thoughts around that media narrative and underlying assumptions made in the case.

  198. Silver
    Silver December 9, 2010 at 12:56 am |

    PrettyAmiableYou don’t know better about what she wants than she does, so let’s collectively stop assuming we do.

    It was not my intention to suggest this. If you were hurt by my wording, I apologise.

    I was attempting to suggest that delaying the proceedings would likely have defused a lot of the victim-bashing that is currently going on. I do think the victim-bashing was a foreseeable problem. Given the circles these women clearly run in, they will make a lot of enemies (and some friends) from the way this has played out. Obviously weighing up the damage from all that, compared to a desire to have the matter over and done with should be a choice for these women alone to make. However, I also doubt, unless Sweden is radically different, that these women have much control over the timing of the process once the complaint was made.

    I hope their lawyer had the foresight to predict what would happen, council them of it, and then they made the decision to proceed at this time rather than have the choice made for them. Somehow, I doubt this was the case.

  199. Suzy
    Suzy December 9, 2010 at 1:33 am |

    The elaborate argument the author has detailed above is the sort of commentary that causes me to ponder whether the law can reasonably address all matters involving human beings. There are many forces in life that govern human behavior, and I am inclined to believe that the law is not and cannot be a precise scalpel of justice in every facet of human interaction, including in the scenario the author has described.

  200. junk
    junk December 9, 2010 at 2:11 am |

    Although a little off the topic from the original post, can we please take a moment a debunk some of this nonsense I have read on various leftist blogs about the “alleged” C.I.A ties to the Ladies in White in Cuba, and how this “clearly shows” that one of the women saying Assange assaulted her sexually is a “government plant.” I have read a lot of the feminist critique of these leftist blogs I mention here (which has been excellent by the way), and many debunk elements of this C.I.A connection, but still fail to really articulate who the ladies in white are, and what they are fighting for.

    A couple of things:

    1) It is my understanding that the ladies in white are a group of mothers/wives who organize to protest against their sons/husbands who are imprisoned for “crimes against the revolution.” These women do this essentially because they have nothing left to lose – this is their last ditch effort to make a stink about the problems they contend with in Cuba. I’m pretty certain they are not “C.I.A” funded – I don’t know what they would be funding??
    2) This leads me to point no. 2, which essentially goes like: why are leftists (I count myself as a leftist fyi) predominantly unable to be critical of situations like Cuba, romantically valorizing violent revolution without thinking that perhaps the situation is a little more complex – ie. many radical groups fought for revolution, one took charge. One can be critical of Cuba and the U.S. embargo on Cuba. There are also a number of interesting essays about the ways in which women’s rights and feminist struggle has been gradually eroded for the “good of the revolution.” I point this out because it is virtually impossible to find critical writing about Cuba, and it seems high time we rethink the Cuba=good/progressive/freedom, U.S=evil/corrupt etc. binaries.

  201. anonymous
    anonymous December 9, 2010 at 2:50 am |

    You keep using the word “charge” which in this context is misleading. He has not been charged with any crimes at this point. There is an investigation and they would like to interview him, but there’re no formal charges against him.

  202. Nelly
    Nelly December 9, 2010 at 5:25 am |

    Suzy, This is whats been bugging me – all this talk about consent is great, there are many complex issues to discuss & negotiate here. But is a court of law the best place to negotiate personal relations at this level ?? Do we really want this level of legal & police incursion into our bedrooms ?? Must we insist on casting women as such victims we are unable to negotiate our sexual relations, or remove ourselves from situations we’re not comfortable in.
    These women chose to make complains that they knew would be highly publicized. And if, as has been claimed, prosecutor Marianne Ny wishes to test a new wider definition of rape based on withdrawal of consent, would she really choose such a high-profile case, fraught with complex issues, for her test case ??

  203. Viveka Weiley
    Viveka Weiley December 9, 2010 at 7:00 am |

    Hershele wrote:

    I’m honestly unsure how you have sex with someone without their consent without using force or the threat of force

    I can think of deception, coercion or persuasion. The question of what counts as a relevant kind of deception has been thrashed out in the thread already (though not resolved). The line between coercion and persuasion is another point of contention.

    Power is a huge issue when you think about coercion. This why sex between, for example, teachers and their adult students is ethically problematic even in situations of consent. Similarly with a celebrated speaker such as Assange having sex with his admirers; even if they gave enthusiastic consent I immediately tend to feel a concern that he’s exploiting his position without sufficient regard for the feelings of the women involved.

    Power is also why the theoretical gender equivalencies given in some comments above don’t fly. These questions about whether it’s still rape if a woman does it to a man. The seeking of absolute equivalence in definitions. We won’t find such an equivalence, first because overall men have more power than women. Second because in any individual case, we don’t know where the power lies. People are complicated. Individual difference can outweigh gender difference. Circumstances matter.

    Sheelzebub wrote:

    Not quite, Viveka.
    The blame the sluts mode has been going in full force among lefties as well

    I suppose it has. In that case, this particular accusation has managed to split the left as well.

    He’s got plenty of support among the left, even among the women who are pointing out that the sexism people are engaging in is not okay.

    Is that part a problem, really? He might be guilty of rape, or he might not. Right now, we don’t know what will be found.

    We don’t even know if the women consider him to have raped them. As we’ve read above, prosecutors in Sweden can choose to prosecute one party in consensual BDSM sex even against the objections of the other party who does not feel harmed.

    It is possible that this is a set-up, or that he’ll be found guilty of being thoughtless but not criminally so. Of course it’s also possible that he’ll be found guilty of rape.

    Until then, the presumption of innocence is fair and just. From my reading of your comment, you agree on that point.

    …engaging rape apology and a witch-hunt against the two women involved is not productive, plays into right-wing misogynist narratives about women and rape, and actually serves to divide the movement…

    Yes, I agree completely, and it bothers me immensely.

  204. Right-wing blogger on date rape: You buy the ticket, you take the ride | Women's Views on News

    [...] on a blogpost about the Julian Assange rape case on US blog site Feministe, right-wing blogger Robert Stacey McCain says with regards to date [...]

  205. Right-wing blogger on date rape: You buy the ticket, you take the ride | Women's Views on News

    [...] on a blogpost about the Julian Assange rape case on US blog site Feministe, right-wing blogger Robert Stacey McCain says with regards to date [...]

  206. paket.soup.io
    paket.soup.io December 9, 2010 at 8:22 am |

    “Withdrawal of consent should be grounds for a rape charge (and it is, in Swed…”…

    Withdrawal of consent should be grounds for a rape charge (and it is, in Sweden) — if you consent to having sex with someone and part of the way through you say to stop and the person you’re having sex with continues to have sex with you against your w…

  207. groggette
    groggette December 9, 2010 at 10:06 am |

    Jill,
    How dare you not be blown away by Black Hour’s gotcha question! (and evident lack of knowledge of the outcome of current events)

  208. PrettyAmiable
    PrettyAmiable December 9, 2010 at 10:15 am |

    Silver: It was not my intention to suggest this. If you were hurt by my wording, I apologise.

    This isn’t an apology. In apologies you acknowledge that you fucked up. Here, you’re suggesting that it is MY mistake to be insulted by your ridiculous insinuations that you somehow know best. In fact, you should be apologizing for said insinuations that contribute to the belief that rape victims don’t know what’s best for themselves. I am not going to apologize for my reaction (so you can take back your apology on behalf of my reaction), because you are wrong.

    Silver: I was attempting to suggest that delaying the proceedings would likely have defused a lot of the victim-bashing that is currently going on.

    Right, that totally worked out for the woman who accused Al Gore of assaulting her this year.

    You’re wrong; you don’t know what’s best for them or what they’re thinking; get over it.

  209. Sheelzebub
    Sheelzebub December 9, 2010 at 11:59 am |

    Black Hour, turns out, there was more to that case than originally reported.

    Silver, I do not believe that prosecutors decide on bringing a case to trial based upon the complainant’s schedule or request. If I was robbed, I can’t go to the police and say, “But hold off on the prosecution for a few months/a year, will you?” If they decide they want to prosecute on the evidence available, they will.

  210. Bagelsan
    Bagelsan December 9, 2010 at 1:07 pm |

    I was attempting to suggest that delaying the proceedings would likely have defused a lot of the victim-bashing that is currently going on.

    That’s not a bad idea. They should consider delaying it — oh I dunno, what’s the statute of limitations there? — they should delay it exactly that much. That would defuse the whole proceedings right out of existence so gracefully and lady-like.

    /sarcasm

  211. GallingGalla
    GallingGalla December 9, 2010 at 2:08 pm |

    Hershele Ostropoler: It’s weird to me that it can ever be legal to knowingly have nonconsensual sex with someone, but on the other hand I’m honestly unsure how you have sex with someone without their consent without using force or the threat of force, unless I’m interpreting “force” much more broadly than the courts do.

    Dude. I’m a bit late in commenting on this, as it took overnight for the sheer busted-ness of this comment to register.

    I was in a sexually abusive relationship for many years. My partner used force only once (when he was tweaked on pot). Every other time, he needled and cajoled me until I gave in. He kept me in that relationship by playing on my fears that no-one else in the world would ever love and accept me like he did.

    Not once did I consent to sex. Every time he took me, I stared at the ceiling until it was over.

    Now you, Hershele, are questioning whether this is rape, because he didn’t take me by force?

  212. Hershele Ostropoler
    Hershele Ostropoler December 9, 2010 at 2:15 pm |

    Viveka Weiley: I can think of deception, coercion or persuasion. The question of what counts as a relevant kind of deception has been thrashed out in the thread already (though not resolved).

    … you’re right. I could not (and did not) read this thread without addressing the issue of deception in my own mind (lying about factual things makes it rape but I don’t think the MRA response of “you’ll jail people for saying ‘I love you!’” is entirely a red herring) but I somehow failed to make the connection.

    But ok. I don’t quite see the difference between the legal standard being “without consent” versus it being “without consent with force or the threat of force, or with consent obtained by deception or coercion.” And as I understand the word “persuasion,” that doesn’t really detract from sex as a collaboration; I might not think highly of people who do it, but there’s a difference between applying social penalties and legal ones.

  213. Hershele Ostropoler
    Hershele Ostropoler December 9, 2010 at 2:23 pm |

    GallingGalla: My partner used force only once (when he was tweaked on pot).
    Every other time, he needled and cajoled me until I gave in.He kept me in that relationship by playing on my fears that no-one else in the world would ever love and accept me like he did.

    Hm. Well, this crossed with my last comment. It falls under coercion, so I wouldn’t argue that it’s not rape. But since you never consented at the beginning, middle, or end, I can’t see sexual activity being even possible without some form of unwanted touching. Without force isn’t the same as without violence.

  214. Hershele Ostropoler
    Hershele Ostropoler December 9, 2010 at 2:33 pm |

    Emendations to my last two comments:

    On 189: I assume, on reflection, that “persuasion” here refers to the victim being given the “choice” between saying “yes” and being subjected to repeated nagging. I’d unhesitatingly agree that invalidates consent, though I’d call it a form of coercion. “Coercion” to me means declining is not realistically an option.

    On 190: I did say, or at least intend to say, that if nonconsensual sex without force indeed happens it shouldn’t be legal. So if you would classify your experience as being without force, then the factual basis for my statement was wrong. So without knowing the details — and I’m not going to demand you share them — I would assume force was used and I’d call it rape whether force or coercion was used or not.

  215. cfw
    cfw December 9, 2010 at 2:48 pm |

    Quick question – if there can be a sort of breach of contract rape (pulled off the condom), could there be breach of contract rape by a woman of a man (pretended to take contraceptive pills, for example)?

    I suppose the answer is yes, but it seems more like a breach of contract matter, as opposed to a years in prison and “name on a sex offender list for life” matter.

    Is my sister to go to jail for years and be listed on a sex offenders list for using a boy friend as a sperm donor (stopping contraception without his consent)?

    It does not seem like that is how things normally work out here in the US at least.

    Question aside, good analysis of the situation in the A cases and why the cases might be entirely legitimate.

  216. Gorbachev
    Gorbachev December 9, 2010 at 4:05 pm |

    I’m sorry if this offends anyone, but let’s examine some scenarios:

    1) Man attacks a woman, holds her down, forcibly penetrates her.

    2) Boyfriend gets angry, forces way into apartment, holds woman down and against her will forces her to have sex.

    3) Man nags woman into having sex; she agrees, though is tired/annoyed/uninterested.

    4) Man and woman are having consensual sex; he agrees to use a condom; he does. They have sex a second time, after sleeping, and this time there’s no condom (call it enthusiasm). Both are fine the next day. They argue; then she calls it assault.

    I ask you this:

    What the living hell does 3 or 4 have to do with 1 or 2?

    Assange committed 4. I’ve read the official reports online. The only reason there was any report was because the two women discovered that the guy had slept with both of them within 2 days. THEN it turned into “rape”.

    Every actual victim of sexual assault, assault or rape should be thoroughly disgusted by this rank trivialization of what is an actual trauma.

    Both of these women fully consented to sex and only considered it rape after the fact.

    Case closed. This was nothing even remotely like rape.

  217. Wikileaks 101: Media Roundup, And Technology that Truly Empowers

    [...] offers some thoughts on “sex by surprise” over at Feministe: “Commenters are saying that Assange didn’t [...]

  218. Jim
    Jim December 9, 2010 at 4:07 pm |

    Hershele Ostropoler: except for the “normal scepticism” part, since I don’t think rape ausations should be treated with any more skepticism than any other crime.

    That’s what I meant by “normal” – the same as for any other crime.

    Martin: That’s the wrong question. Its not important when the consent was given, the important thing is that you can ALWAYS in any situation withdraw your consent.

    Always? What if the sex is over and in the past? Doesn’t it have to be possible for the other person to act on that withdrawal of consent? How can you stop sex when consent is withdrawn if the sex is already over?

    Always UP TO, DURING, at any moment – yes, I agree totally.

    Viveka Weiley: We won’t find such an equivalence, first because overall men have more power than women.

    Fail. “Overall” is irrelvant to a specific instance. This is exactly the kind of shit arguement that James Landrith faced when he started telling the story of how he was raped. Basicaly it’s just rape apology.

  219. Gorbachev
    Gorbachev December 9, 2010 at 4:09 pm |

    In my above example, #3 can also be the result of a woman’s continual harassment of a boyfriend or husband. I’ve been on the receiving end of this, and know of a lot of men who have had sex only because they were emotionally blackmailed by their GFs or wives, pushed into it by ex-GFs who used every sneaky trick in the book to get their ex back into bed (this is not as uncommon as it’s made out to be), and wives who have even declined to let men sleep – being loud, nagging, harassment, picking fights and starting arguments – unless the men had sex on the wife’s schedule.

    But, for some reason, that sort of coerced sex is just fine. It’s *only” when men do this that it’s rape.

    Not only that, but when men do it, it’s the same as holding a stranger down and using force to rape her.

    If you can’t see the naked hypocrisy and unfairness of this situation, especially for a guy like Assange who, even the next day, thought everything was fine, and when the women were still very happy about the experience (having sent out tweets to that effect) – until learning about his two-timingness – then there’s something seriously wrong with your moral compass.

    Try re-aligning it.

  220. Kristen J.
    Kristen J. December 9, 2010 at 4:37 pm |

    Gorbachev: Every actual victim of sexual assault, assault or rape should be thoroughly disgusted by this rank trivialization of what is an actual trauma.

    Both of these women fully consented to sex and only considered it rape after the fact.

    Case closed. This was nothing even remotely like rape. Gorbachev

    How did this asshat get through moderation? Hey shithead…how exactly do you know what the women in question considered the experience to be? Also, that trivializing rape trope…is just bullshit.

    Cara explained on her own blog a few months ago:

    I also thought that a big part of anti-rape activism was about broadening our definition of rape, not narrowing it — throwing out the stranger jumping from the bushes with a knife as the only model of rape, and recreating a model that encompasses a wide variety violent experiences and promotes affirmative, enthusiastic, meaningful consent as minimum standard of decency rather than a nice bonus if you can get it. I thought that anti-rape activism was about acknowledging that rape is not just one thing, that there is more than one way to violate a person and to be violated, and that whether consent was given was more important than how much force was used. Especially in this context, the posts in question come off as nothing more than language policing, against particularly marginalized populations, no less.

  221. Kristen J.
    Kristen J. December 9, 2010 at 4:41 pm |

    Gorbachev: But, for some reason, that sort of coerced sex is just fine. It’s *only” when men do this that it’s rape.

    That’s your logic fail, not anyone’s here. Coerced sex is rape regardless of who is coerced and who is doing the coercion…but you keep spewing bullshit and hate based on a straw argument.

  222. Gorbachev
    Gorbachev December 9, 2010 at 4:42 pm |

    Human Sexuality Is Not Simple

    Most of the women I’ve been with were massively turned on when I was insistent and dominant; the hottest sex my ex had ever had was after we argued and I essentially pushed her into sex. She was “swept away” and loved it. She was initially hesitant. She later told me that that’s what she wants from men: Power, force, being taken without the abilyty to resist. Not just her: Many of the women I’ve known have wanted this. Only one didn’t like it.

    Human sexuality is highly complex. According to some of these legal concepts, men almost need stage-by-stage written consent from women with notaries present to make sure everything is okay. No women I know want that from men. You can’t hold one gender responsible in this fashion, and one gender only, unless you actually want to prevent people from having any (heterosexual) sex at all.

    And that’s a damned fact.

    Rape and Assault laws

    Human sexuality isn’t straightforward. Rape laws, especially rape laws like the vague, almost universally-applicable laws in Sweden, are like blunt instruments. They’re crude and really maltreat actual individuals much of the time. They also encourage the use of laws for getting revenge.

    Rape Claims as Revenge

    I’ve personally known 4 men who have had false rape charges laid against them.

    One was from his ex-wife during divorce proceedings; he was lucky in that he was with his then-girlfriend in another country when it was alleged to have happened and had records to prove it, by chance. Nothing happened to the ex-wife; note that her lawyer advised her to find some extra material to help guarantee interim custody of their child, which can turn into de-facto permanent custody. She mad an entirely false claim. She was never reprimanded, charged with anything and it didn’t affect their divorce. What she did was criminal fraud, perjury and a kind of legal assault – but she was never censured.

    The second was in college, when a woman accused a man who she’d dated for a month of raping her the first night they were together, as she’d been inebriated (but not drunk). He’d been in the same state, as with many College kids. They dated for a month, he dumped her, he was in an office the next week on rape charges. Ahem. The college backed her to the hilt and he was almost expelled; inevitably, all charges were dropped when he *insisted* that she file criminal charges or let him continue in school, and the president of the university actually had to intervene to bring some sanity to the situation. The school wanted to force him to be quiet (a silence clause) in their agreement with him, to “protect the victim”. Of course, the real victim was the man. He refused. He kept copies of everything and it was all “leaked” by a third party. The woman was shamed, and rightly so. She had tried to destroy a man based on hard feelings and regret because he dumped her. Very noble.

    The third was at work, where a separated woman having an affair with a married co-worker accused not one but two men of raping her, the second insisting that he’d never even slept with her: she ultimately got a huge settlement from the company as a result of her harassment claims (which surfaced at the same time), which were regarded as frivolous by everyone in the company, including the other women. The president of the company settled because continuing would have cost fortunes. Virtually everything the woman alleged was a lie; the second man had never touched her and had perfect alibis. In investigating this, my co-worker found hundreds of such cases across the country. It’s standard practice to make sexual assault (more vague than rape) charges when in harassment suits – it bolsters the case. These things never reach courts and the men are often stained for life; the point is to make the settlement easier to reach. Do some web-searches or talk to some lawyers, especially divorce lawyers. They often advise women on the usefulness of such claims. Recently, I’ve heard of some *men* who have been advised to “support” assault charges on their wives against either them or their children – as tools in divorce cases. That’s a standard tactic with lawyers for women, but it’s becoming more and more common for lawyers counseling men, too.

    Very noble.

    The fourth was last year, when a co-worker took a woman home he’d met at a bar, then had a 3-night fling, and she accused him of assaulting her when he refused to add her to facebook or continue. And she was a *college prof* at a prestigious school. She had no problem having sex with him for 3 days. The rape charge related to the entire period. Why? He had lied to her about his intentions. She actually *said* this.

    No joking.

    Whatever the hell that was, it definitely wasn’t rape or assault.

    What To Do?

    Women do this all the time, and are able to convince themselves after-the-fact, when they don’t like the result or they just want revenge. Never happens, right? No, never. The courts *always* dismiss these claims, and no innocent men get their lives destroyed. Get real.

    Women and men are manipulative and sneaky. Give women this kind of one-sided power, and it’s a license for abuse. Take it away completely, and it’s a license for abuse.

    Conservative pundit Rachel Marsden, while at college in Canada, was famous for making false accusations of rape, being charged with stalking men, and being a nightmare (legally and socially) for ex-boyfriends. She nearly destroyed several men, made life living hell for several college profs, and even stalked the Women’s Services co-ordinator (a female).

    And women regularly pressure their men into having sex the men don’t want to have. I don’t know a single guy who hasn’t complained of this at some time or another.

    Actual assault is devastating and must be stopped. We need to criminalize actually violent behavior. The grey area is just too dangerous to step into, because you risk hurting a lot of people and empowering the wrong sort.

    For coercion, we need to teach people – women included – to defend themselves. But this means teaching people not to act like children: They need to take full responsibility for their *own* actions. These kind of vague rape laws entirely infantilize adult human females.

    I have more respect for women as adult humans than this.

  223. groggette
    groggette December 9, 2010 at 4:59 pm |

    mods, can Gorbachev please be banned?

  224. Sheelzebub
    Sheelzebub December 9, 2010 at 5:02 pm |

    STALINIST. ;)

    groggette: mods, can Gorbachev please be banned?  

  225. groggette
    groggette December 9, 2010 at 5:05 pm |

    Ha! Thanks for making me not completely stabby right before I head out the door…. on the way to brave christmas shopping mobs where I will once again become full on stabby.

  226. Gorbachev
    Gorbachev December 9, 2010 at 5:14 pm |

    @Grogette: Censorship

    You know, I have only one more thing to say. You don’t need to ban me. I won’t be back.

    Your comment was deeply disappointing. It reinforces a very poor image of certain sectors of the blogosphere, and helps to maintain a staining and damaging stereotype that sticks all too readily.

    I’ve read virtually everything about the Assange case in English, German and French by this point. I’ve reads the official police reports in German, leaked to the press (hehe – Wikileaking as a philosophy). I’ll tell you this: these are rape charges that will be dismissed. I guarantee it. Spend some time and do some serious research. It’s not nearly what you think it is. You will end up being disgusted by both female accusers. The process they’ve followed should disturb you, when you learn enough about it.

    Censorship

    On all of the websites I’ve spent time – every single one, without exception – the only sites that *ever* engaged in censorship of any kind were sites run by women in a *particular brand* of feminist thought. Not all feminists, by any measure: but there’s a certain censorious type, with a certain consistency, that likes to exert control over what’s said and finds silence and mutual agreement preferable to discussion or debate. The same is true for far-left and radical blogs (I used to frequent Anarcho-syndicalist and radical blogs at one point). The only other place on the internet which evinces such tendencies are the far-right: White Nationalist nutcases, racists, xenophobes, etc. Why is this? Some internal reflection on that might be appropriate. There’s more similarity in philosophical approach to discussion among the far right and left than at first might appear to be the case. Just something you might want to think about when you’re not otherwise busy.

    I’ve seen mild racists posting on blogs run by black men, and they debate instead of censure. I’ve seen liberals and conservatives take pieces out of each other like snarling dogs. I’ve seen women and men debate the vagaries of the modern dating scene. There’s no need to be censorious when people aren’t being personally insulting – unless you find disagreement personally insulting.

    And yet, this is the honest to God truth about my 10 years of experience on the internet and with blogs:

    I’ve never encountered censorship and “Don’t say what I don’t like to hear” – ever – anywhere – like I’ve seen on a given type of feminist blog. Only three or four are particular bad that I know; but they subscribe to the same philosophy. There are thousands of others that don’t.

    Again, ponder that thought. And consider.

    No need to block me. I’ve said my peace.

  227. Saurs
    Saurs December 9, 2010 at 5:33 pm |

    Dude? You’re getting tiresome with these long, sanctimonious point-by-point posts. This isn’t your weblog and this isn’t your soapbox for MRA bullshit.

  228. Jim
    Jim December 9, 2010 at 5:42 pm |

    Gorbachev: But, for some reason, that sort of coerced sex is just fine. It’s *only” when men do this that it’s rape.

    Not for all the people here who have been condemning it as rape. You might try reading the thread before you comment.

    Gorbachev: On all of the websites I’ve spent time – every single one, without exception – the only sites that *ever* engaged in censorship of any kind were sites run by women in a *particular brand* of feminist thought.

    Blogs can’t censor. Censorship is the suppression of expression. No blog can do that to you because you are free to go to another and express yourself. This blog can’t censor you.

    But it can ban you. This is a private, not a public space. They can ban me and any time for whatever or no reason at all and that is their right. I post comments here by their permission, and so do you.

  229. Sheelzebub
    Sheelzebub December 9, 2010 at 5:43 pm |

    Gorbachev’s tactic–bury people in an avalanche of boring-ass rhetoric.

    Dude, no one is obligated to post your comments. Really. Get the fuck over yourself.

  230. Bloix
    Bloix December 9, 2010 at 5:44 pm |

    “I have no idea how this isn’t the focus of this particular line of thought on a feminist website, because all we SHOULD care about is what she wants as the victim.”

    “I think instead of conjecturing, we should assume the victim may or may not prefer to prosecute now, and that waiting has as many drawbacks for her as doing it now.”

    “We don’t know, it comes off as if we’re second guessing the victim and know what she wants, let’s stop.”

    Actually, we don’t know if there was a victim. In this case, anyone who uses the word “victim” is signalling that she’s already made her mind that Assange is a rapist.

  231. Gorbachev
    Gorbachev December 9, 2010 at 6:04 pm |

    @Kristen J.

    Gorbachev: But, for some reason, that sort of coerced sex is just fine. It’s *only” when men do this that it’s rape.

    That’s your logic fail, not anyone’s here. Coerced sex is rape regardless of who is coerced and who is doing the coercion…but you keep spewing bullshit and hate based on a straw argument.

    Um, …

    I don’t think I spewed any hate at all. In fact, I’m pretty far away from hate – where was the hate? I’m genuinely unsure, so if you could show me, I would actually be quite obliged. If I spewed hate, I’d like to avoid it in the future. That’s genuine.

    I’d just like to point out that no court in the land – anywhere – will convict a woman for emotionally coercing a man into sex. You may call this my own fail – but look at actual reality. Rape (by coercion) is never prosecuted against women. I’m not trying to spew hate. I’m just trying to acknowledge how reality actually works, in life. We can make gender-neutral laws, but our social order won’t allow its equal application. Women are as guilty of this as men. It’s human nature. It’s hard to defy.

    I have a situation for you to consider. It’s personal. It affected me for a number of years. It’s not trite, either, so before you dismiss me for being a man, please do read.

    Over ten years ago, I was with a woman and had to end the relationship. Shortly after, I started a new relationship (there was no connection). I remained friends with my ex.

    I stayed “just friends”. I was a good friend. I listened, talked, spent time, was decent – and detached enough to prevent a return to our previous status. I *did* have a new GF, after all. I was deeply in love with her. She was very important to me. I ended up marrying her.

    One night, when it was raining, and my ex and I were supposed to meet, she came over before we went out. Alas, we ended up not going out. We split a bottle of wine, watched TV, laughed, had fun. I kept my distance. It was all very proper.

    At one point, she approached me and I made excuses and went to the restroom. When I came out, she had changed her attitude. I decided it was time to go. Alas, for the bets laid plans of men.

    To make a long story short, using tears, a bit of deceit, and a little bit of physical pressure, she pushed me into having sex. At one point, I tried to stop our activities; she fell into blackmail, insults (cajoling and calling me unmanly), attempted to shame me into sex, and then used the nuclear weapon: Guilt. She became physically close; suggestive; feigned more serious drunkenness than was the case. She asked, why did I treat her that way? Why had I done X? Was she ugly? It was no big deal. Just touch me. We were close, don’t you still feel anything? Was I wrong about X or was it Y? Did you ever love me? Just hold my hand. Just hold me. I miss you. Etc., etc. Undressing herself.

    I very reluctantly had sex with her. I remember feeling ill about it at the time. I never told my new GF. It was the last night I spent with my ex. I barely ever spoke to her again. I told her in the morning that I was unhappy about it; she said: No big deal. She wasn’t unhappy at all.

    Half-tipsy, guilted, cajoled and pushed; harassed. By my ex, a friend, someone whose company I valued. I felt guilty for weeks, and it damaged my new relationship. I felt sullied, and mildly disgusted with myself. I never looked at my ex the same way again.

    She later told a mutual acquaintance that she’d deliberately tried to get revenge on me: Make me cheat, and maybe even tell my new GF about it. And that she liked feeling powerful. In the end, she didn’t say anything to my GF- but the mutual acquaintance told me the story as a warning a month or so later. She said: Watch out.

    Was I raped? Was it the same as a guy who goes to prison and is raped by another man, at knife-point?

    I took responsibility for it. I shouldn’t have cheated. I should have been firm and insisted. I should have been immune to psychological manipulation. I was weak. I should have forced her to leave my apartment. *I* took responsibility for what happened, because I was an adult and even if I was coerced, I submitted, in the end, voluntarily.

    If someone sells you a car, you are entirely responsible for buying it. If the person didn’t lie and the car is as sold, you can’t blame them for your purchase. Once you have sex, you’ve agree to buy the car. You accept the man at face value. Even a high-pressure sales tactic sale is still a sale. It might not be “fair” – but it’s still a sale. You signed the agreement, you said yes. It’s done. You gave your assent, or did not disagree. The exchange occurred.

    By *your* definition, I was heavily coerced into having sex when I definitely didn’t want to. By the definition of the law in Sweden, and yours, I was “raped”. I was raped in the same way as if I was held down by a guy with a knife.

    There’s a massive world of difference between my experience and an actual sexual assault

    As was pointed out to me by my two best friends (aside: one of whom was a hard-core feminist lesbian – I minored in womens’ studies, no joke: I’ve read all of Dworkin and Mackinnon and everyone else: and as a result, many of my friends were lesbians; I got along better with the sex-positive Lesbians rather than the other half of the classes, several of whom were my best friends for the better part of a decade; the other half of the classes I was in were on the other side of every possible issue: I’m sure you’re familiar with the divide), … as was pointed out by them, I was not “raped”. If I thought I was assaulted, then I was trivializing assault and rape.

    In fact, I was coerced, but my actions were entirely voluntary, no matter how angry or upset I was.

    I wonder whether or not it would have been different had I been female, saying the same thing?

    In case you respond in this fashion, don’t act like I know nothing about the subject because I’m male and just can’t understand. I’m human, too.

    Rape and sexual assault is a serious crime, and should be considered such. Much of the current debate is a grotesque mockery and trivializes actual victims who have been terrorized and raped.

    There are men and women who have sex for all kinds of reasons and often don’t want to. Were they raped?

    Do you want the heavy hand of the law, with its prisons, evidenciary hearings, mistrials, examinations and police procedures wading into that terrifying grey zone? Do you want the minutiae of your momentary motivations and misgivings and every other aspect of your interrelationships to be scrutinized by court officials?

    Should my ex-GF have gone to jail and have had a criminal record, been unable to get a passport or a job requiring any clearance, or even been registered on a Sex Offender list and shamed for the rest of her life?

    Do you want to put yourself at the mercy of the emotional vicissitudes of your ex? Can you honestly say that you trust human nature (male and female) so much that you can be sure your father/brother/husband won’t fall victim to another person using that sort of thing against them for less than pure reasons, for less than justice? Even if unwittingly?

    Do you want the state having that kind of power over its citizens and their bedroom activities? How much power of intrusion into your intimate life do you want the state to have, with all of its machinations, bureaucracy and callous efficiencies?

    You’ve really got to consider that extremely carefully. Wemight have stepped over a difficult line.

    Lots of men are starting to feel pinched. These are your brothers, fathers, uncles and sons. You’ve got to be able to be neutrally pensive about this kind of thing. Consider the kind of society you wish to create.

    Consider how much power you want to give another person in your intimate life. Now consider that person’s opinion.How much power has this sort of Swedish law given you – and denied to your man?

    Feel that out for a bit.

  232. Gorbachev
    Gorbachev December 9, 2010 at 6:07 pm |

    @Sheelzebub
    Gorbachev’s tactic–bury people in an avalanche of boring-ass rhetoric.

    Dude, no one is obligated to post your comments. Really. Get the fuck over yourself.

    Okay.

    I’ll buy that.

  233. Lucien
    Lucien December 9, 2010 at 6:49 pm |

    Dude, no one is obligated to post your comments. Really. Get the fuck over yourself.

    Right, computer systems naturally do it automatically unless someone contrives to intervene.

    Dude? You’re getting tiresome with these long, sanctimonious point-by-point posts. This isn’t your weblog and this isn’t your soapbox for MRA bullshit.

    bury people in an avalanche of boring-ass rhetoric.

    I hate thought-out, comprehensive disagreement, too. We’ve got to outlaw thinking and disagreeing. Who let them think that was ever okay?

  234. newyorkita
    newyorkita December 9, 2010 at 7:18 pm |

    If a man promises to use a condom and then refuses to put one on and then has sex with you even though you don’t want to, that’s rape. Frankly, I don’t see how one can miss that a guy has not opened and put on a condom. It’s kind of hard to miss that moment. You can’t possibly only realize after the act that there was no condom put on, unless you assume that the guy arrived with an erection and condom already on, before inviting you to the sexual act. So I’m assuming we’re all just flapping our lips in the wind without enough information. Perhaps it’s as simple as the women saying, “hey, stop, you haven’t put a condom on,” and Assange just pressing on regardless, which would be rape. I think it doesn’t take a rocket scientist to understand that. Even the most knuckle-dragging neanderthal probably understands that much.

    Why not just wait till the facts are in? There has been no trial, no testimony.

  235. PrettyAmiable
    PrettyAmiable December 9, 2010 at 7:30 pm |

    Long paragraph of nonsense about how I see the world because I forget that sometimes there are other people who engage in it who obviously have failures in logic because they came to a different conclusion than me.

    Loaded three words.

    Oh the difficulties of being a man in a world dominated by men where women are under the impression that they can discuss a problem that disproportionately affects them even when there are a very small percentage of men who also are affected by this problem.

    Three more words.

    Exceedingly long paragraph about how no one wants to hear me whine in their space except people just like me and others who choose not to say no to me!

    Censorship.

  236. XtinaS
    XtinaS December 9, 2010 at 7:56 pm |

    With the addon of commenter stompyfit!

    * “No one understands me.”
    * “Only your type of people have a problem with what I say.”
    * “I’m done commenting here.”
    * “…despite how I keep commenting.”

    I have never quite figured out what these sorts of people expect to have happen.

  237. groggette
    groggette December 9, 2010 at 8:02 pm |

    PrettyAmiable,
    …. you totally deserve an ass magnet for that comment!

  238. Gorbachev
    Gorbachev December 9, 2010 at 8:24 pm |

    @Pretty Amiable,

    Actually, that was pretty damned funny.

  239. PrettyAmiable
    PrettyAmiable December 9, 2010 at 8:47 pm |

    Impossible. I’m a feminist. We don’t have senses of humor.

  240. ABC
    ABC December 9, 2010 at 9:08 pm |

    http://www.mediaradar.org/docs/UN-ViolenceReport-Resolution.pdf

    I would like to know what do you feminists think about this kind of “manifesto” (is it correct to call it a manifesto?), because I’m really curious on the reasons you quote MRA (I did not know their existance before read this post) in a so pejorative manner.

    Thank you for any possible future explanation; and please forgive my artificial english, because I’m a Brazilian.

  241. tipster86
    tipster86 December 9, 2010 at 11:11 pm |

    lpl
    For the record, I do think this kind of deception should be illegal and punishable. But I think it’s a different sort of crime, a sort of “crime of information” and not something which should be conflated with rape.

    It is traditionally treated as a form “rape” or “sexual assault” in other specified circumstances, because the consent given was invalid.

    Some examples:

    Mistaken Identity – Where an intruder is mistaken for a husband/boyfriend and “consents” to the intruder because of that mistaken identity. The consent is considered invalid.

    Fraudulent marriage – Perhaps a little archaic, but a situation where the woman partakes in a fake marriage ceremony and then consents to her “husband” on the basis of that fraudulent marriage, the consent is considered invalid.

    Not relevant to this case, but still important to the concept of consent, the consent must be for sex. Consent given for fraudulent medical procedures or because the person is unaware of the fundamental nature of the act (there’s case law involving magicians performing “tricks”) are invalid, or rather, is never given for penetration of a sexual nature.

    See the New South Wales (Australia) Crimes Act s61HA on consent as an example :
    http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61ha.html

  242. tipster86
    tipster86 December 9, 2010 at 11:59 pm |

    Gorbachev: We need to criminalize actually violent behavior. The grey area is just too dangerous to step into, because you risk hurting a lot of people and empowering the wrong sort.For coercion, we need to teach people – women included – to defend themselves. But this means teaching people not to act like children: They need to take full responsibility for their *own* actions. These kind of vague rape laws entirely infantilize adult human females.I have more respect for women as adult humans than this.

    The greatest safe guard against false rape convictions, and ex post facto retractions of consent, is keeping a subjective mens rea element for the offence of rape.

    That is, the accused must have been aware (to a certain degree), that their partner was not, or was no longer, consenting. To be a ‘rapist’ you need to know that you are raping somebody, or be aware of the probability or possibility that you are raping somebody. That awareness must be proven beyond reasonable doubt.

    That way situations where two people in good faith misunderstand or disagree whether mutual consent existed, like withdrawn consent not immediately realised, innocence is rightly presumed. It also safeguards against false accusations and bad faith entrapment on issues of consent, where the person was sincerely not aware that consent had not been given or had been withdrawn, or that consent had been “withdrawn” after the act.

    I don’t think “force (including threats)” should be an element of sexual assault. A lack of force will always cast strong doubt on accusations, but it should not automatically mean a case is unproven. The correct standard is beyond reasonable doubt that the act was nonconsensual, and the accused was aware it was nonconsensual.

    Assange is accused of using force with the first woman. He is accused of penetrating the second woman whilst she was asleep, and ordinarily that’s automatically nonconsensual.

    The greatest protection against the stigma of false rape allegations would be name suppression until conviction. If Assange is vindicated/acquired, perhaps it’ll be a teachable moment on the value of keeping some secrets, if he has been unjustly smeared in the interim?

  243. tipster86
    tipster86 December 10, 2010 at 12:19 am |

    Sam: I think that I basically agree with everything in the post, and after glancing at the relevant sections of the Swedish law (http://www.sweden.gov.se/content/1/c6/02/77/77/cb79a8a3.pdf), Swedish law on rape and sexual assault seems largely sane

    Does anybody have a definition on what “unlawful coercion” means in Swedish law?

    Their doesn’t seem to be any definitions section in that translation. The phrase is used throughout the code for a wide range of offences.

    Without knowing what qualifies as “unlawful coercion” we’re completely in the dark regarding the s6(2) offence.

  244. RD
    RD December 10, 2010 at 1:11 am |

    Trigger warning.

    To the asshole who said, “you can feel the difference and if you can’t you have nerve damage”…fuck off cuz I’m guessing this has never happened to you.

    And to the other asshole who said it devalues “real rape,” listen. I can think of three situations I’ve been in that are relevant here. In one case, I was recently homeless and this guy was offering a place to stay in exchange for doing shows, meaning masturbation shows. He lied about the nature of his “business”- it was prostitution. I had flirted with him a bit when I met him. I posed for pictures. He bullied me into doing some sexual stuff. Then he escalated to sex when I was turned away, but he also led me to believe that he was wearing a condom. I do not think this was consensual in the first place, I didn’t fight it but I don’t think I had a choice. I didn’t want it at all. I wasn’t expecting it. I had told him earlier that I was not going to have sex with him and he said he “didn’t mix business with pleasure.” But when I saw that he was not wearing a condom I felt like I died a little inside. I just turned over and got a little teary, and when he came I felt like I couldn’t move. He wiped me off and put me in a room with a customer basically right after. I wound up running away. I think the no condom thing was a violation…I actually started peeing blood the next day and I think it was related to the lack of condom. The second situation, a client paid me to stay the night, we had protected sex. I woke up in the night to him fucking me without a condom. The no condom, was a violation. The third situation was that I withdrew consent when things got rough.

    It is a terrible violation and it does not diminish any fucking thing. “Real rape” is something rapists made up so they could go on thinking of themselves as not rapists.

  245. RD
    RD December 10, 2010 at 2:14 am |

    I posted before I read Gorbachev’s bullshit.

    I think I’ll go hit you with a sledgehammer. Don’t like it? Take some responsibility man. Man, what an infant, come on be an adult and take some responsibility here.

  246. an
    an December 10, 2010 at 5:16 am |

    It’s not worth it. Just stay away.

  247. Jennifer
    Jennifer December 10, 2010 at 9:11 am |

    Hey–you were linked on google news–way to go! IMO, censorship is best when done with [boners] a la Tiger Beatdown, but prettyamiable’s approach was good too.

  248. Politicalguineapig
    Politicalguineapig December 10, 2010 at 11:11 am |

    Jennifer: Just because she ‘loved’ does not mean Assange was not a rapist. Men rape women they ‘love’ all the time. Yet another reason why the idea of love is like an addictive drug that women need to learn to do without.

  249. Politicalguineapig
    Politicalguineapig December 10, 2010 at 11:11 am |

    Jennifer: Just because she ‘loved’ him does not mean Assange was not a rapist. Men rape women they ‘love’ all the time. Yet another reason why the idea of love is like an addictive drug that women need to learn to do without.

  250. Bill
    Bill December 10, 2010 at 11:20 am |

    Rape is a serious crime because it robs a woman of her ability to choose. If she consents “provided that he wears a condom” and guy either doesn’t, or one breaks and he fails to tell her, then he has again robbed her of choice. Either way, it’s a violent act and should be treated very seriously. If Assange weren’t involved with Wikileaks, no one would be defending him … all decent people would be calling for him to spend time in jail. But his efforts at Wikileaks, regardless of what one thinks of them, do not absolve him of rape.

  251. ABSTRAHIEREN » Blog Archive » links for 2010-12-10

    [...] Some thoughts on “sex by surprise” — Feministe "The concept of withdrawing consent seems to be tougher for folks who think of sex as something women give to men" http://j.mp/eLGqD3 #fb (tags: via:packrati.us) [...]

  252. narratives of rape | What's that you said?
    narratives of rape | What's that you said? December 11, 2010 at 12:02 pm |

    [...] Finally, the “You Can’t Have Regrets Afterwards” or “It Doesn’t Count If You Already Started” tropes, which are guaranteed to show up if the victim isn’t under 13 and a virgin, were ably shut down by Feministe: Some thoughts on “sex by surprise”. [...]

  253. A bigger – and somewhat redundant – message « Ideologically Impure

    [...] lot of other people have already challenged the bullshit rape myths going on around the Assange case, but one thing just leapt out at me from [...]

  254. “Measuring” Rape and Assault Using the Violence vs. Consent Spectrum | Change Happens: The SAFER Blog

    [...] of folks are once again talking about “what counts” as rape. If you haven’t read Jill’s excellent piece about the legalities of consent in this case and in the U.S. at large, I highly recommend you do. [...]

  255. Love Bites: Clarisse Thorn | Time Out Chicago » » Rape and the WikiLeaks political scandal

    [...] Rape and the WikiLeaks political scandalDecember 13th, 2010 @ 1:50 pm I’ve felt really annoyed about how the issue of rape is being treated in the WikiLeaks political scandal. I thought about writing about it but I had no time. Fortunately, Jill at Feministe has written everything I would have written: [...]

  256. The Wild Hunt » Pagan Community Notes: Scarlet Imprint Swears Vengeance, Trigger93, Pagan Studies, and More!

    [...] motivated pressure to have Assange extradited is that it is causing some reasonable people to whitewash what might have actually been rape. Engaging in some troubling victim-blaming. Perhaps these accusations are being overblown, or used [...]

  257. where is your line? » Blog Archive » WikiLeak’s Julian Assange, rape charges and the court of public opinion | Western Outlaw

    [...] to English for “sex by surprise” is the word “bullshit.” Feministe got it right when Jill [...]

  258. Truth and consequences « Can You Relate?
    Truth and consequences « Can You Relate? December 14, 2010 at 11:38 am |

    [...] English translation of the charges — “sex by surprise” — to make the accusations seem ridiculous. Even Naomi Wolf is leveraging her feminist credentials to mock the women and their “injured [...]

  259. links for 2010-12-08 « meta . ©® . com

    [...] Some thoughts on "sex by surprise" Feministe (tags: feminism wikileaks assange) [...]

  260. Violence vs. Consent? “What Counts” as Rape and Sexual Assault

    [...] of folks are once again talking about “what counts” as rape. If you haven’t read Jill’s excellent piece about the legalities of consent in this case and in the U.S. at large, I highly recommend you do. [...]

  261. Some Preliminary Thoughts on Wikileaks - The Pursuit of Harpyness

    [...] assault don’t mirror American laws, it doesn’t mean that their position on consent is philosophically indefensible. But this will not convince most people who use the “women lie” line of anything. They [...]

  262. Olbermann Suspends Twitter Account | FrumForum

    [...] with confusion and controversy about the nature of the crimes he has allegedly committed. Many have urged people not to dismiss the rape allegations as merely politically motivated, while others have said they [...]

  263. What We’ve Been Reading « Politics Power Sex

    [...] “Sex by surprise” or, supporting consent-based sexual assault laws. [...]

  264. links for 2010-12-19 « Embololalia
    links for 2010-12-19 « Embololalia December 19, 2010 at 1:09 pm |

    [...] Some thoughts on “sex by surprise” — Feministe But the concept of withdrawing consent seems to be a little tougher for folks who think of sex as something women give to men (or men take from women); it’s definitely a tougher concept for folks who think that sex inherently sullies women. I suspect that the thought process goes, If the damage (penetrative sex) has already been done, then the situation can’t possibly turn into a rape, because the initial penetration itself occurred consensually, and it’s that penetration that’s the basis of the harm in any rape case. Consent, in that framework, isn’t the point. (tags: julian.assange sexual.violence law usa sweden) [...]

  265. Blog do Mauro Alves da Silva
    Blog do Mauro Alves da Silva December 20, 2010 at 9:04 am |

    [...] vítimas dizem que o sexo foi consensual. Mas parece que ele se recusou a usar camisinha, e este é um crime na Suécia (um crime menor, pago com [...]

  266. O CRIME SEXUAL DO FUNDADOR DA WIKILEAKS. | Blog do Mauro Alves da Silva

    [...] vítimas dizem que o sexo foi consensual. Mas parece que ele se recusou a usar camisinha, e este é um crime na Suécia (um crime menor, pago com [...]

  267. Defending the rights of men, denying the voices of women | Domestic Violence Resource Centre Victoria

    [...] US blog Feministe: Some thoughts on ‘sex by surprise’ [...]

  268. Sex, State Abuse, and the Spy Movie
    Sex, State Abuse, and the Spy Movie December 21, 2010 at 11:01 am |

    [...] which has been in turns infuriating and fascinating, and the latest move to a discussion about rape has led quite a few liberals (Michael Moore, Keith Olbermann, Naomi Wolf, etc.) to say incredibly [...]

  269. A Culture of Victimhood: Using Rape as a Weapon | Tabitha Hale

    [...] over at Feministe writes this: There’s a lot going around in bloglandia and on the interwebs about WikiLeaks honcho Julian [...]

  270. Robert Stacy McCain Will Determine Which Women Are Worthy of Legal Protection : Lawyers, Guns & Money

    [...] direct link, but via.   This post is rather more worthy of your time. Share and [...]

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