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RAPE

Lawyer: Assange a victim of judicial mismatch

WikiLeaks' founder Julian Assange arrived at the High Court in London on Tuesday to open his appeal against a ruling to extradite him to Sweden to face allegations of rape.

Lawyer: Assange a victim of judicial mismatch

The appeal began with Assange’s defence lawyer telling a British court the case against him was legally flawed. In the February ruling in a lower court judge rejected his defence’s arguments that he would face an unfair trial in Sweden.

The 40-year-old Australian’s lawyer, Ben Emmerson, said the conduct described in the European arrest warrant issued by Sweden “fails to provide a fair, proper and accurate description of what is alleged against the appellant.”

He said that Sweden was seeking his extradition for questioning over the claims of rape and sexual molestation by two women “not for the purpose of prosecution”.

Emmerson also argued that Assange was a victim of a “philosophical and judicial mismatch” between English and Swedish law on what constituted sex crimes.

Assange arrived at the court in central London in a black car and refused to answer questions about the appeal from a scrum of cameramen and journalists. He was wearing a grey suit, blue tie, white shirt and glasses.

A supporter yelled: “Keep fighting the American empire, Julian.” Other supporters including campaigning journalist John Pilger also arrived at the court.

The hearing on Tuesday and Wednesday will take place before two judges. The decision is expected to be deferred until a later date.

His Swedish lawyer, Björn Hurtig, said Tuesday he believes there are strong chances the court will decide to extradite his client.

“I think there is a big risk he will come here,” Hurtig told Sveriges Radio.

“I hope this is going to go as Julian wants but I believe the chances for change are fairly small,” he said, adding he thought Assange’s British legal team would concentrate more this time on formalities than on criticising the Swedish legal system and Assange’s accusers.

Hurtig was censured by the judge in the previous case for being “unreliable” and for making a deliberate attempt to mislead the court.

Even if the ruling goes against him, Assange’s lawyers have signalled he is prepared for a lengthy legal battle and could take his challenge all the way to the Supreme Court.

The former computer hacker has been living under strict bail conditions, including wearing an electronic ankle tag and a curfew, at a friend’s mansion in eastern England since December.

He was arrested in December after two Swedish women accused him of sexual assault, allegations that Assange denies.

The Australian’s whistleblowing website was in the process of releasing a huge cache of leaked US diplomatic cables at the time.

It was the site’s latest dump of US government documents, following the release of secret military files about the wars in Afghanistan and Iraq, and angered Washington.

Swedish authorities want to question him over the sex assault claims, although he has not been formally charged. He has claimed that the allegations are politically motivated.

Assange has shaken up his legal team ahead of the hearing, replacing vocal media lawyer Mark Stephens with Gareth Peirce, a high-profile human rights lawyer.

In recent years Peirce has represented Muslim terror suspects, and a former Guantanamo Bay inmate. She made her name in the 1970s and 80s defending people wrongfully jailed over bombings by Northern Irish paramilitary group the IRA.

Despite the tight restrictions on him, Assange managed to celebrate Sunday his 40th birthday, which occurred on July 3rd, with a party.

Assange has claimed his greatest fear is eventual extradition to the United States, where his lawyers argued he could be sent to the Guantanamo Bay detention facility or face the death penalty.

US authorities opened a criminal investigation against Assange in July 2010 but are yet to bring any charges against him.

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RAPE

‘Negligent rape’: Has Sweden’s sexual consent law led to change?

One year ago, Sweden introduced a law change that meant sex without explicit consent was considered as rape, including when the victim did not actively say 'no'. The Local spoke to experts to find out the impact this has had on court cases and within Swedish society.

'Negligent rape': Has Sweden's sexual consent law led to change?
Experts told The Local Sweden's sexual consent law has had an impact on court cases and in the way people discuss sex and consent in the media and in general.File photo of a Swedish courtroom: Jessica

The law change meant that participants needed to clearly demonstrate that they wanted to engage in sexual activity in order for it to be considered consensual.

Two new offences of “negligent rape” and “negligent sexual abuse” were created for acts where courts found that consent had not been established, but in which the perpetrator had not intended to commit rape or assault. Previously, a decisive factor for a rape conviction was proof that a perpetrator used force, threats, or taken advantage of someone in a vulnerable situation.

The law faced backlash at the time, and had to be clarified after Sweden's Council on Legislation said it was too unclear. Others criticized it as signalpolitik, meaning a policy implemented only for appearances and unlikely to make a real difference. 

Twelve months on, rights organizations say the law has had a measurable impact on court cases and helped change the national discussion on sexual autonomy – but warned there was still work to be done.

'Sweden needs to do more to convict rapists': Amnesty report
File photo of a police officer: Hanna Franzén/TT

'Negligent rape' sentences

“Earlier this year, we looked at 30 court judgments, and these included cases which definitely would not have been considered to be rape before the change in the law; where no violence or other means of force was used,” Katarina Bergehed, an Amnesty International expert in women's rights, told The Local.

Over the past year, the new law has been decisive in at least seven rape cases which went to court, according to an investigation by Swedish radio programme I lagens namn (In the name of the law).

The programme said that of 60 rape cases, the new law was crucial in seven, including six convictions of negligent rape.

A study from the Siren news agency reached the same conclusion, finding that in 84 cases where prosecutors mentioned “negligent rape”, 45 resulted in a rape conviction while six were sentenced for negligent rape. 

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'Sleeping in the same bed and wearing only underwear does not mean consent'

One of these sentences was confirmed by Sweden's Supreme Court on Sunday, marking the first time the country's highest criminal court made a judgment relating to negligent rape.

The 27-year-old male plaintiff was found guilty of the negligent rape of a woman while staying overnight at her home.

The woman said had agreed he could stay overnight, but made it clear she did not want to have sex. Despite that, the man initiated sexual intercourse. 

Both the perpetrator and the plaintiff said that she was passive throughout the intercourse, and that they did not speak. The plaintiff said she “froze and did not know how to act”, while the perpetrator said he was not sure whether she was awake when he first initiated sexual contact, “but [he] had the impression that she wanted to have sex” and continued because she did not tell him not to. He also said that he stopped the intercourse when he thought she didn't want to continue.

In a statement accompanying its decision, the Supreme Court wrote: “A person who is subjected to sexual acts against their will does not have any responsibility to say no or express their reluctance in any other way. Furthermore, the court notes that the fact that the plaintiff and the perpetrator agreed to sleep in the same bed and that they were dressed in only underwear does not mean that the plaintiff voluntarily participated in the sexual acts.”

The man now faces two years and three months in jail, although this includes sentences for other crimes he was found guilty of. The penalty for the count of negligent rape was eight months’ jail, according to the Supreme Court.

Without the 2018 law, it is likely that the man would have been acquitted, since intent was previously required for a conviction of rape or sexual assault, and the Supreme Court found no evidence of intent.

Sweden's Supreme Court in Stockholm. Photo: Magnus Andersson / TT

'Greater awareness about consent'

The fact that Sweden's law now sets a clear boundary between consensual sex and rape or assault has also helped open up to discussions about sex and consent, the Swedish Association for Sexuality Education (RFSU) told The Local.

“There is increased awareness and a greater openness towards talking about [sexual consent] today,” said RFSU's Maria Bergström, when asked what changes she had observed since the consent law was passed.

“For example, we can see that this has made it easier for people who have previously experienced this to put words on what happened to them, and to then perhaps go further with reporting it or seeking support. The law has finally made it clear that one always has a responsibility to ensure that there is consent.”

“There is a much greater awareness and more conversations today on these questions among young men but also in the adult population — we also see that the question is raised by the media in a different way than before,” she said.

Bergström also mentioned the impact of the #MeToo movement in putting the question of consent and boundaries on the political agenda, as women from a wide range of industries came forward with their experiences of assault and harassment, all calling for tangible change.

READ ALSO:

Sweden in Focus: One year on, what did #MeToo achieve in Sweden?
A march for women's rights organized by #MeToo campaigners in Gothenburg. Photo: Thomas Johansson/TT

'Near impunity for rape'

While the 2018 law is one example of that change, Sweden is a long way from ensuring that all rapists face justice. 

According to the National Council on Crime Prevention (Brå), around 112,000 people were subjected to rape or sexual assault in Sweden in 2018, while only 5,593 such crimes were reported to police. And of those rapes reported to police, only around seven percent went to trial.

“We have near impunity when it comes to rape in this corner of the world that's normally regarded as one of the most gender equal countries, and we simply can’t have that,” said Amnesty International's Katarina Bergehed.

An Amnesty report earlier this year found that questioning was often delayed, and that DNA analyses could take as long as nine months to deliver.

“It’s crucial to deal with rape cases promptly. You need to secure evidence very rapidly otherwise it can disappear, and some evidence risks being deleted on mobile phones. Police are understaffed and resources are often drawn towards other crimes such as gang violence and killings,” said Bergehed. But she added: “The signals we’re getting is that the police are both willing and finally able to resource themselves to deal with rape in an efficient way.”

The Swedish police force announced last month that by next year, 350 investigators would be recruited to deal specifically with cases of rape, sexual violence against children and domestic violence.

Bergehed also pointed to the importance of changing attitudes towards sex and consent across all levels of society.

“Changing a law alone is not sufficient; you need police training, awareness in schools; the whole society needs to change,” she said. “There should of course be justice for rape victims once it happens, but the longer goal is to eradicate rape and sexual violence.”
 

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