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The Misadventures of Quinxy von Besiex truths, lies, and everything in between

3Feb/117

When Rape Isn’t Rape – The Strange Case of Julian Assange

I have no fondness for Julian Assange.  I suspect (based on little but what's come across of his personality) that he's motivated more by celebrity and a desire to be relevant than by absolute moral conviction.  I find it terribly ironic that he (or anyone on his side) express outrage that the detailed reports related to the interviews of him and the women involved were leaked; turnabout being fair play and all.  Nonetheless, with the details that have come out thus far related to the allegations against him I find it hard it very hard to take the victims, and thus his prosecution, seriously.  To suggest his actions approach what anyone would reasonably consider rape or molestation seems to greatly erode the horrendous outrage we should feel when we hear those words.  He's an asshole, he's a cad, and he's likely a lousy lover, but beyond recognizing those things publicly I'm not sure what we can expect the law to do after the fact when  these women did so little to vet him prior to bedding him.

Here are a few observations which I haven't seen discussed in the popular media:

Observation #1:Condoms Aren't Fool Proof

The primary crime Julian Assange appears to have committed in the eyes of Swedish law enforcement is that he did not wear a condom though the women had requested and expected it.  The specifics appear to be that with one woman a condom failed and they apparently continued with consensual sex anyway; she suspects he induced the condom failure.  And with the other woman she awoke to them having sex without a condom.  While I certainly believe each party in a sexual encounter can set rules for their participation, I think some of my otherwise absolute support for this as a black and white matter is lost when I remember that condoms are nowhere near 100% effective, making the purpose of the women's stipulations very potentially moot.

Condoms do not protect you from all STDs therefore it is illogical to act or encourage the law to act as though they do.  The women in this case could have required Julian Assange (JA) to get STD testing before they engaged in sex with him, if they were so concerned about STDs.  But, they did not.  Their sole concern as it relates to condom usage appears to be STDs, not pregnancy (no mention has been made of pregnancy concerns and surely it would have been were they not on some form of reliable hormonal birth control).  Too many people seem unaware that while condoms are highly effective in preventing STDs related to seminal discharge (notably HIV, bacterial infections, etc.), they provide relatively little protection against other STDs such as HPV (genital warts or cancer causing strains) and herpes (HSV-1 and HSV-2).  Little discussed is the fact that condoms "mechanically" fail 5% of the time they are used, through slippage and breakage (see article), and in those moments of failure provide no protection at all.  Have sex four or five times over a couple days, as could easily have happened in the JA case, and the odds are 20-25% that one of the condoms would fail.  The women would have been accepting that failure rate and its consequences; they were either in knowledge or ignorance acting as though they were perfectly fine accepting the risks of certain STDs, but not fine accepting the risks of others.

The women accepted a significant risk that the condom would fail, they accepted a significant risk that a condom would not protect them from HPV (which could lead to cancer), they accepted a significant risk that they could get herpes, and so their entire position seems to rest on their unwillingness to accept the risk they might acquire HIV from unprotected sex with JA (ignoring the not insignificant possibility that the condom could fail and make their act unprotected regardless of anyone's intent).

But how likely were they to acquire HIV from unprotected sex with JA of unknown HIV status?  This is important because if the likelihood was very, very high then few would support the soundness of these women deciding to have sex with him when his HIV status was unknown, regardless of condom usage (because condoms fail).  And if the likelihood was very, very low then JA using a condom becomes an utterly moot point, and not something the law should be used to enforce (no more than if he had violated an agreement before sex to wear a party hat on his head throughout).  There would seem a very narrow prosecutable range for probabilities where the law would seem an appropriate remedy.

The reality is that Julian Assange, though he appears to be a tremendous man-whore, remains (by all accounts) rather unlikely to have HIV.  JA is not known to be gay, bisexual, IV an drug user, or a hemophiliac.  While his heterosexual promiscuity in the Western world elevates his risk I can find no definition of high risk group in the HIV context which would actually include him.  The risk JA presented was therefore vanishingly small, even through several unprotected sex acts:

...the odds of a heterosexual becoming infected with AIDS after one episode of penile-vaginal intercourse with someone in a non-high-risk group without a condom are one in 5 million. ...  with a member of a high-risk group, e.g., a gay or bisexual male or IV drug user from a major metro area, or a hemophiliac ... [the] chances of getting AIDS from one such encounter range as high as ... 1 in 1,000 unprotected. - From The Straight Dope

Allowing for several sex events, and for JA's first world heterosexual whore-ishness, JA has therefore been arrested and is being prosecuted for a threat of HIV he posed these women which was something on the order of one in many hundreds of thousands.  That minuscule degree of threat he posed is the what the law is effectively seeking to prosecute.  The truth is, of course, that prosecutors are trying to make the statement:  Women (in this case) can make stipulations in a sex contract which cannot be violated by men without serious legal penalty.  But that premise is flawed because it requires that this stipulation be major, because minor stipulations are violated constantly in all forms of interpersonal contracts without any penalty.  An example of which is: A couple has been together for years.  One afternoon they  have sex.  Half an hour later the man mentions that he had received and responded to a harmless, friendly e-mail from an old flame.  The woman is outraged because she had made previously made quite a point that he was not to contact any ex-girlfriends.  Had she known he had responded earlier that day they surely would not have had sex that afternoon.  Did this man effectively rape her by having withheld (intentionally or unintentionally) information which may have caused her to refuse sex on that occasion?  Whatever the temporarily heightened emotion involved for both parties, I am confident the courts would not elect to intervene over such a "minor" stipulation in this particular sex contract.  But in the case of JA, where the probability of actual threat is one in many hundreds of thousands, where the women have demonstrated the acceptance of risk associated with condom failure, with HPV (and the potential for cancer), with herpes (and the potential for social stigma), the legal system chose to prosecute.  The law does no one any favors when it is used without reason, to prosecute on whims, to prosecute feelings, bad science, or false perceptions.

I think Julian Assange is an uncaring and unconcerned lover, a rotten human being, and no one I'd want my sister to end up in bed with, but selectively prosecuting him for selectively chosen (and vanishingly small) risks helps no one take responsibility for their actions, before or during these incidents.  Responsibilities in sex are to be shared, among both women and men.  Condoms are not safe, merely safer; and sex is therefore inherently risky.  You cannot hide your responsibilities behind reliance on false and misleading comforts; and you cannot choose to prosecute as a result.

If there is any good that comes out of this it is that all women have fair warning about JA, and I hope they do listen because he seems just the sort of man who will likely not alter his behavior one iota; and not because I think he is likely to spread HIV, but because of all the other diseases he may carry and spread, condom or no.

Observation #2: The Complexity of Consent

In none of the reports I've seen has it been made clear that either woman in the case said clearly communicated a "No!" to him.  There's mention of one woman being partly undressed by him then partly redressing only to have him undress her again.  She then proceeded to assent and have sex with him, continued to let him stay with her in her home for days, etc.  In this context, with this being one-night-stand-ish intimacy, with him being a "celebrity" of sorts, it is hard to see this as a rape or molestation in any reasonable sense.  Surely there are horrific situations in which humans can be psychologically manipulated by captors and such to behave in ways which seem illogical (e.g., Stockholm Syndrome, or abused individuals being afraid to flee or alert others).  And there are also monstrous acts of date rape occurring every minute of every day.  But if JA is prosecuted for this then surely there should be prosecutions lodged against almost every popular and unpopular rock band in the world, because surely many young groupies also find elements of regret and anxiety after making staggeringly poor choices and participating in sexual situations which mimic this JA situation.  Sex is hideously complicated, and most people's sex lives include numerous seemingly unavoidable mistakes in judgment that no country's criminal codes will ever eradicate.  The best the law can do is create rules that are clear, instructive, and are ready to be used with equal efficiency against all who would disobey them.

There has always been, and arguably always will be, a push-pull dynamic involving men being the sexually aggressive partner, pushing the woman's limits.  It is a dynamic which, like it or not, appears to be enforced and encouraged by both men and women.  Clearly "No means no."; clearly there are very real and absolutely unquestionable limits, but unless force or strong mental coercion occurs it's dangerous to assume JA's twice removing a woman's shirt aggressively is outside the bounds of generally accepted sexual aggression, or that it signals a clear "NO!" from her.

One other point that was made related to JA's initiation of sex while his partner was sleeping or just waking up.  This an interesting issue, because sex clearly must be consensual.  But there surely is often implied consent.  Couples routinely have sex when one or both members is at a diminished capacity.  Perhaps one or both partners is sleepy, drunk, high, or it is early in the morning and one party begins to "sex up" the other party.  This goes on all the time, and I find it hard to believe there is anything fundamentally immoral or wrong about it, presuming there is significant reason to believe the other party would and does want it.  I am no expert in the etiquette of promiscuity, so I am not clear what behavior is appropriate or inappropriate for those who would have sex within a few days of knowing each other.  It seems to me a person's willingness to immediately have sex with someone they barely know suggests on their part some level of openness to advanced/accelerated intimacy, and thus I find it hard to argue that he should have known he cannot grope or initiate sex with his sleeping lover as seems to have been suggested here.  And if he was supposed to know this, what would be the mechanism by which this would be communicated/inferred?  Is it acceptable on the third morning they are together?  The tenth?  Do they need to have a conversation about it?  I cannot imagine this issue is so clear that a prosecution case could be built upon it.

Observation #3: Post Hoc Reasoning

Neither woman appeared to have had any intention of prosecuting the matter until they discovered they had both been sexual with him in an overlapping time-frame, and that he had behaved similarly both times (refusing to wear a condom and having sex, by accident or intention, without a condom).  Both had separately intended to continue a friendship/relationship with him at least until they discovered their mutual sexual experience with him.  Reports suggest that neither would have prosecuted him had he not refused to get the STD testing they requested after their sexual liaison, that was supposedly their intent in going to the police, to learn how to get him to comply with their request.  One would hope that these women would have been able to independently decide that his behavior was so egregious that it warranted an accusation or rape or molestation, that they would have seen fit to immediately cut off their relationships with him, that they would not have been willing to settle for an STD test.  While I understand that date rape is very real we surely must find some better distinguishing characteristics to separate prosecutable date rape from icky, scorn-worthy date pushiness.  JA's behavior and the women's responses does not sound to me as though the incidents rose to anything a majority would say could be described as rape or molestation.

Conclusion

Julian Assange deserves karma's penalty, not a criminal one, for the sexual incidents that have been revealed.  The law was not meant to be used against people through selective prosecution.  The coverage in the press may be the karmic revenge he deserves, may curb his wanton ways.

My view is my own, and it is fluid.  I may not have adequately considered some very salient points that only someone who has been confronted with the experience of coercive sex can share.  My frustration is that too often when people attempt to discuss these complicated topics, so that we might attempt to reach a general understanding which can be the basis of new law or new social understandings between the sexes, things devolve into an emotionally charged conflict of wills not rights.  We cannot afford to be politically correct, we must be correct.  We cannot afford to be overly emotional when it comes time to reasoning out solutions.  Just as authors and playwrights request our "Willing suspension of disbelief." when we observe the worlds they create, I wish it were possible for all people to achieve a "Willing suspension of opposition animus."  The opposing side is rarely so wrong as we believe them to be.  Their house is as solid as ours, and built upon the same foundation as ours, but somewhere between its foundation and its roof there are differences in the supporting members that we can more calmly explore.  It is those structural elements we must explore to settle ourselves into true and relaxed comfort in our own position; and more often than we'd like, it is in that analysis we find the need to modify our own positions to correct for defects, to move both parties closer to common understanding.