In my three part series on Assange, Ecuador, Rape and Sweden I promised to expound upon the following subject:
3) Even if Assange would be convicted in Sweden he would not serve any time.
In part 1 I argued that the Ecuador asylum application could not really be explained by an urge to escape the Swedish legal case since he would not serve any time in Sweden and since the broader issue of being an enemy of the United States seems forgotten.
This is a comment I did on the Ecuador case via a Skype video interview from the Swedish countryside for RT.com:
In part 2 I wrote about the allegations against Assange and claimed that no Swedish woman has actually accused Julian Assange of raping her but that the Swedish state seeks him for one count of "less aggravated rape" (of his one-night stand admirer SW) anyway. There are however one or more lesser potential offences committed and morally condemnable acts, given that we believe the stories of the accusers.
In my new book A Brief History of Swedish Sex I don't go into the accusations or details of the legal case at all. I put the Assange case in a political context in Sweden where sex is politics today. I will therefore go into some detail here:
SW's story is that she did not want sex without a condom, due to fear for STDs and pregnancy, but that JA anyway initiated this without her knowledge (after first having protected sex a couple of times at least). She became aware of it very soon and then she accepted it and let him continue with the words "You better don't have HIV" to which he responded "Of course not". This is what she herself told the police.
Given that we believe the details of the story I think most people would say that the act of going forward with condomless sex seems morally deplorable. Legally, it may be another matter, since SW accepts it. She apparently regrets it afterwards however. Her friends later convinced SW that she should go to the police.
A Swedish Chief Prosecutor considered this act to not entail any sex offence whatsoever. Presumably she considered SW to have given a post-factual consent. Those who vote for rape (including the Head Prosecutor who brought forth the rape allegation again, after it had been dismissed by her colleague) focus on the act of initiating unprotected sex, while discounting the subsequent consent to continue the act.
There is another woman (AA) who accuses Julian Assange of one main sex offence: She tells in the interrogation protocols how Assange wished unprotected sex but only begrudgingly accepted to use a condom. Afterwards she came to believe that he had deliberately broken it in order to ejaculate inside her.
[Update: I should point out that Julian Assange has already been interrogated in Sweden about this encounter and that he denies AA's claim. I use the leaked interrogation protocols as a basis for my postings, but obviously have no way of evaluating who is right. But I want a more rational and calm evaluation of events. There are enormous emotions involved here from supporters and detractors].
Let's assume the worst possible scenario, that it actually happened that way. Morally, it is obviously reprehensible to deliberately break a condom. But from a legal point of view, what kind of offence is it?
It seems that this is not as well regulated as I guess many would expect. There are two main issues, STDs and pregnancy (discounting a general distaste for fluids).
In Sweden anyone who is knowingly infected with HIV has a duty to actively inform a sexual partner about it. The one who does not inform before sex commits the crime "attempt to gross assault". It does not matter (as in most cases) whether no infection was transmitted, s/he can be sentenced to prison. The crime is to not actively telling. Not informing and breaking a condom while the partner had insisted on a condom would most likely be classified as "gross assault". It seems that Assange is not knowingly HIV-positive so that law would not be applicable. Note that these are non-sexual crimes.
It has been suggested in some interrogations that Julian Assange would wish to see small Assanges populate the world and might try to increase the probability for pregnancy from a sexual encounter through condomless intercourse (something that would presumably not be a particularly effective strategy, since most women use their own contraceptives to prevent pregnancy).
But if that were in fact the case, trying to induce pregnancy, wouldn't that be a gross crime? In fact not a crime at all, at least not in Sweden.
The reason is most likely that it would be bad for women as a group to criminalize the specific act of deceptively inducing mother- or fatherhood, at least if we demand gender equality from the judicial system. I have talked to a law professor who says that the judicial system takes an almost Catholic position: every child is seen as a blessing to the parents.
Pregnancy for a woman is of course a major event but can be terminated. But a man who becomes a father against his will has no legal recourse whatsoever. It does not matter whether the woman intended to become pregnant and lied about her own contraceptives, or - I conclude - if she e.g. saved a condom with sperm and injected that sperm into herself later. She certainly commits no crime by doing this. He cannot ask her to make an abortion, it is entirely her choice. And he will be financially liable for a child he did not want, huge costs. Neither can he get damages from her for her deceptive behavior. Fatherhood is strict, probably to "protect" women and children.
In the U.S. there is a debate concerning these issues. Katie Roiphe recently wrote in Slate.
Just a few days before the sexual encounters in the Assange case a 16-year old boy was convicted of killing a 16-year old girl in Västerås in Sweden. They were fuckbuddies. He saw her as a friend and an outlet for sex. She supposedly fell in love and suddenly announced she was pregnant and he was the father. He tells how he tried to convince her that they would destroy their entire youth and lives by having a baby at 16. He pleaded with her for a month or so to abort the pregnancy, offered her money and things. Nothing helped. They talked about it every time they met and eventually he freaked out into a desperate and violent rage that ended with her death. [I have read the entire investigation, just a link to one article about the case here (in Swedish)]
To deliberately break a condom has in fact been classified by the Head Prosecutor and the Svea Court of Appeals as the weakest sex offence: "sexual molestation". It is legally seen as grabbing the crotch of someone unwilling.
This is the main offence that Assange is wanted for when it comes to AA. The other two offences seem to have been strenuously extracted from the story of AA to make the whole episode more punishable. A non-sexual crime is thrown in: "unlawful coercion", when Assange is supposed to have grabbed AA's hand and weighed her down in connection with sexual intercourse. This was not done to coerce her into any sexual act however so it is calssified as a non-sexual offence. Subsequently Assange is supposed to have rubbed his frontside against her backside when he continued to stay in her apartment, classified as "sexual molestation".
What sentence could JA get? I have read quite many court cases on sex crimes and from that I see it as highly unlikely that Julian Assange would get a higher sentence than let's say 18 months of imprisonment, even if convicted on all counts, including the gravest, "less aggravated rape". In my book A Brief History of Swedish Sex there are a number of legal cases with sentences cited. Those who read it are in for a surprise when sexual crimes are compared to violent crime. Sexual touching is regarded as much more harmful than gross violence.
As I understand it (but noone should take this as legal advice, legal experts should corroborate this), Julian Assange would not serve any time in a Swedish prison, even if convicted. Sweden has a system with detention of suspects under quite wide circumstances. In theory one can be locked up for years while an investigation is performed. If the suspect is convicted and sentenced that previous detention is subtracted from the sentence. If you end up in the negative the state can be forced to pay damages. The rules for subtracting time are found in Law (1974:202) §19. Other laws are referred to there. But my conclusion is that the kind of detention that Julian Assange has been subject to, where he has to report to a police station every day, is counted, also when abroad, when it has been requested by Swedish prosecutors.
To conclude: There may be morally deplorable behavior involved in this case. That's what the two accusers claim. From the point of Law it is not as clear. Even if convicted Julian Assange would most likely walk out as a free man immediately after a trial, since he has been under detention for 569 days so far, almost 19 months.