The curious case of Julian Assange

Over the last few months there has been an enormous amount of material written in Australia and abroad about Julian Assange and the possible legal consequences that may flow from the publication of classified government material on his now famous WikiLeaks website. Similarly, and coinciding with this interest in WikiLeaks, there has been a huge amount of speculation in the media about his alleged sexual activities in Sweden earlier in the year and about the case being prepared by the Swedish public prosecution office in relation to a number of alleged sexual offences. This FlagPost entry will not draw upon such speculation or attempt to add to it. Rather, it will simply examine the ambit of Sweden’s sexual crimes legislation as it may apply to Assange.

By way of background, on 18 November 2010 the Stockholm District Court (Stockholms tingsrätt) ordered that Assange be detained for questioning in relation to a number of alleged sexual offences. An appeal on behalf of Assange was subsequently rejected by a Court of Appeal (Svea hovrätt) and thus on 20 November 2010, Interpol proceeded to issue a ‘Red Notice’ with respect to Assange to law enforcement agencies in its member countries. Interpol refers to a Red Notice as an ‘international wanted persons alert’. The legal basis for a Red Notice is an arrest warrant or court order issued by the judicial authorities in the country concerned. Though it is issued to seek the provisional arrest of a wanted person with a view to extradition, it is not in itself an arrest warrant. The media release issued by Interpol simply stated that Swedish authorities ‘want to question him in connection with a number of sexual offences’. Additionally, it states that it ‘cannot demand that any member country arrests the subject of a Red Notice and any individual wanted for arrest should be considered innocent until proven guilty’.
However, on 7 December 2010 Jennifer Robinson, one of Assange’s defence lawyers confirmed that ‘we have received communication from the police that a European Arrest Warrant has been communicated and validated here by the UK authorities’. A European Arrest Warrant or EAW is an arrest warrant that is valid throughout the European Union. This may have implications for Assange’s future extradition proceedings. As one reporter from the Guardian notes, ‘the European arrest warrant is being used to have thousands of people flown out to face charges that wouldn't stick in the UK’. See below for comments on double criminality. On 8 December 2010 Rob Stary, another one of Assange’s defence lawyers confirmed that ‘they haven’t seen charges that have been laid or intended to be laid’.

On 1 April 2005 the Sexual Offences Act came into operation in Sweden. A fact sheet issued by the Swedish Ministry of Justice explains that the purpose of the new legislation was to ‘further strengthen and make clear the absolute right of every individual to personal and sexual integrity and sexual self-determination’. Accordingly, consent to a sexual act is the central issue when determining whether or not a sexual crime has been committed. The offence of rape is set out in Chapter 6 of the Swedish Penal Code. In part, it states:

A person who by assault or otherwise by violence or by threat of a criminal act forces another person to have sexual intercourse or to undertake or endure another sexual act that, having regard to the nature of the violation and the circumstances in general, is comparable to sexual intercourse, shall be sentenced for rape to imprisonment for at least two and at most six years.
A 2008 Amnesty International Report on rape in the Nordic countries (Denmark,Sweden, Norway and Finland) observes that ‘according to the travaux préparatoire, only minor violence is required for an act to be considered rape [in Sweden]. It may be sufficient for the perpetrator to impede the victim’s movements, for example by holding the victim’s arms to pin her/him down, by applying body weight or by forcing the victim’s legs apart. The law does not require the presence of resistance on the part of the victim’.

The crime of rape was also broadened under the legislation adopted in 2005 to include cases of sexual exploitation. This refers to cases in which a person engages in sexual intercourse or some other comparable act with a person by inappropriately exploiting that person, due to:

  • unconsciousness,
  • sleep,
  • intoxication,
  • other drug influence,
  • illness,
  • physical injury,
  • mental disturbance, or
  • ‘in view of the circumstances in general – is in a helpless state’.
Amnesty International Sweden is of the view that other circumstances may also be applicable. For example, a person may be in a helpless state if unable to safeguard her or his sexual integrity. They are of the view that in such a situation, consent would not relieve the perpetrator of liability.

The offence of sexual coercion is an alternate offence under Chapter 6 of the Swedish Penal Code. It applies to a person who through unlawful coercion forces another person to undertake or endure a sexual act. The offence of sexual molestation applies to a person who exposes himself or herself to another person in a manner that is likely to cause discomfort or who otherwise by word or deed molests a person in a way that is likely to violate that person’s sexual integrity.

However, though these sexual crimes may appear comprehensive and comparatively far-reaching, Amnesty International Sweden is of the view that
many problems remain unresolved regarding the legal rights of women who are subjected to rape and sexual violence. The legal definition of rape may be part of the problem, together with the way the criminal courts examine and try rape cases. A particular concern is the fact that most rape cases never come to trial at all. Only a small number of reported rapes result in a prosecution, with an even smaller number resulting in a conviction. Instead, most rape investigations are closed at an early stage, usually with the explanation that ‘it cannot be proven that a crime has been committed.
On 27 October 2010 the Swedish Sexual Offences Commission tasked with assessing the effectiveness of the 2005 reforms recommended a broader provision on rape ‘which would mean that it should be punishable not only to inappropriately exploit someone who is in a state of helplessness but also someone who otherwise has difficulties in protecting their sexual integrity’.

It also proposed the introduction of a new consent-based provision to be called sexual abuse—‘through the offence of sexual abuse it is criminalised to carry out a sexual act with a person without the permission of that person...The provision makes clear the significance of consent and, in addition, ensures appropriate punishment for someone who engages in an act with someone who does not consent to it, whether or not coercion or exploitation has taken place’. Amnesty International Sweden similarly observes that

...linking the question of guilt in cases of rape to a lack of genuine and freely-given consent, rather than to the presence of violence, would bring Swedish legislation into line with international developments. The approach adopted by the International Criminal Court (ICC) does not require the use of violence and force, but defines rape as being committed where there are coercive circumstances that undermine the victim’s ability to give free and genuine consent. Similarly, the European Court of Human Rights has stated that States are obliged to punish and prosecute all sexual acts perpetrated in violation of the victim’s sexual autonomy.
Whether the Swedish Government eventually adopts these recommendations and makes the statutory amendments remains to be seen. It appears that such amendment is unlikely to happen any time soon as it took some seven years for the Swedish Parliament to previously reform its legislative provisions relating to sexual offences.

Professor Don Rothwell from the Australian National University has previously expressed the view that Assange may have multiple avenues to contest his extradition to Sweden—the proceedings for which are expected to occur in February 2011.

Extradition can be contested on the grounds of double criminality—where the crime is not recognised in the requesting and requested country (i.e. Sweden and the UK); the political offence exception—where extradition is sought for a political offence; or that the accused will not receive a fair trial...extradition proceedings can often be determined on technical grounds, such as irregularities in the paperwork accompanying an extradition request.
Significantly, the resolution of these extradition issues will not resolve the guilt or innocence of Assange. Any subsequent determination of his culpability will undoubtedly take place with a significant degree of publicity. This may nonetheless serve to highlight the difficulties that arise in proving crimes of a sexual nature both in Sweden and in other jurisdictions.

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Flagpost is a blog on current issues of interest to members of the Australian Parliament

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