STDs, Broken Condoms, and ‘Sex by Surprise’: A Primer on the Charges Against Assange

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Photo: Splash News

In the middle of a packed courtroom in London this morning, Swedish authorities offered the first clear articulation of the sex charges levied at WikiLeaks's founder. Of course, it's impossible to separate the sexual allegations against Assange in Sweden from the political maelstrom surrounding his whistle-blowing website, especially when Assange and his legal team dismiss the charges as "smear tactics" in retaliation for exposing state secrets. But even taken on their own, the sex crime allegations, like the leaked diplomatic cables, seem to require a little decoding.

Does Sweden really have a "broken condom law"? How exactly does one commit "sex by surprise"? Could this whole thing have been prevented if Assange agreed to be tested for STDs? And what, if anything, does the country's aquavit-soaked crayfish season have to do with it? With the blogosphere launching its own smear campaign against Assange's accusers, here's our attempt to sort it all out.

First things first: According to the Swedish criminal code, there is no "broken condom law," nor is there a law against having consensual unprotected sex. (Unlike the U.S., anything not listed in the code could still be considered a crime, but only by "special legislation.") In the Swedish warrant for Assange's arrest, both of his accusers said that they had separate consensual sexual encounters with Assange that became nonconsensual after he refused to use a condom or replace a broken one.

During the hearing today, Swedish representative Gemma Lindfield laid out the complaints against Assange:


The first complainant, a Miss A, said she was the victim of "unlawful coercion" on the night of 14 August in Stockholm. The court heard Assange was alleged to have "forcefully" held her arms and used his bodyweight to hold her down. The second charge alleged he "sexually molested" her by having sex without using a condom, when it was her "express wish" that one should be used.

A third charge claimed Assange "deliberately molested" Miss A on 18 August.

A fourth charge, relating to a Miss W, alleged that on 17 August, he "improperly exploited" the fact she was asleep to have sex with her without a condom.

Prior to the complaint, rumors were swirling that Assange was being charged not with rape but an obscure Swedish law against "sex by surprise," which is likewise nowhere to be found in Sweden's criminal code.

The confusion all seems to emanate from Assange's British lawyer, Mark Stephens, who told AOL reporter Dana Kennedy that his client was charged not with rape but with "sex by surprise," a crime that comes with a meager $715 fine.

"Whatever 'sex by surprise' is, it's only a offense in Sweden -- not in the U.K. or the U.S. or even Ibiza," Stephens said. "I feel as if I'm in a surreal Swedish movie being threatened by bizarre trolls."

Swedish blogger Linea at Feminism and Tea attributes the confusion to a mix-up over a colloquialism for rape:

"Sex by surprise" or överraskningssex as it would be translated in Swedish is slang for rape. It is a term that is used when speaking about rape, but jokingly, or keeping it light, a word that brings with it positive connotations, which makes the word inappropriate in itself, but it is nevertheless synonymous with rape.

A research project last year funded by the European Commission found that Sweden leads Europe in reports of rape, with 46.5 per every 100,000 citizens, compared with 36 in No. 2 Iceland and 26 in England and Wales. At the same time, Sweden’s 10 percent conviction rate for rape is among Europe's lowest.

The criminal code does mention that longer sentences for rape apply if the perpetrator caused "serious illness." In fact, Reuters reported on Tuesday that the women who accused Assange were initially only trying to find Assange in order to ask him to be tested for STDs. According to associates of Assange "who have since fallen out with him," they went to the police only after they failed to persuade him. Assange apparently had his cell phone off out of fear he was being traced.

Kate Harding, over at Salon, says that with little information, many have turned to "making light of the sexual assault charges and smearing one of the alleged victims." She singled out a HuffPo column by Naomi Wolf (yes, that Naomi Wolf) as particularly egregious.

As for those crayfish, a detailed Daily Mail story based on anonymous sources and leaked police reports mentions that one of his accusers, presumably Miss A in the complaint, since she met and slept with Assange first, hosted a crayfish party ("a traditional, and usually boozy, Swedish summer event") in his honor at her apartment. As the paper points out, the first allegation happened the night before the party. Traditionally, crayfish season means throwing back aquavit and beer as much as it does sucking down crustaceans. It's not clear if the traditionally high alcohol saturation at such parties played a role in the convoluted case of Julian Assange, contender for head of Slytherin House and scourge of governments everywhere. But it does give you some idea of why Swedish prosecutor just fell to last place on the list of enviable jobs.

Assange bail request refused as Wikileaks chief fights extradition [Guardian UK]
Why Britain is likely to send WikiLeaks' Assange to Sweden on rape charges [Christian Science Monitor]
The Wikileaks sex files: How two one-night stands sparked a worldwide hunt for Julian Assange [Daily Mail UK]
Special Report: STD fears sparked case against WikiLeaks boss [Reuters]
Why is the left trying to smear a rape accuser? [Salon]