Let’s talk about sex… some more

You might have thought that I would have made an effort for St Valentine’s Day but I’m afraid today’s post is definitely not about love. Rather, it touches on sex and unpleasant circumstances, much like our previous discussion, though in a more pointed way…

Julian Assange’s extradition case has been all over the news recently and there seems to be a lot of confusion about what the debate should really be about…
Is it about rape and anonymity of rape victims?
Is it about the CIA and international conspiracies?
Is it about the Swedish legal system and political meddling?
Is it about the European Arrest Warrant and extradition laws?

The subject of this post is not to question the worth or the facts of the case. This is the role of a legal system, which is in place specifically because it can make decision based on the facts and the evidence according to a checks and balances. While the system itself can be questioned, discussion in the public media about the facts of a case before it has been decided, especially when it is such a sensitive issue, is troubling at best.

However, something said by Mr Assange’s lawyer caught my attention in relation to English criminal law, which is, after all, what we’re interested in…

One of the leading argument of Mr Assange’s defence is that the alleged acts would not be a crime in English law. According to the Guardian, Mr Assange’s lawyer also said to the court that:

“In so far as Mr Assange held her arms and there was a forceful spreading of her legs, there’s no allegation that this was without her consent,”

“Sexual encounters have their ups and downs, their ebbs and flows. What may be unwanted one moment can with further empathy become desired. These complex human interactions are not criminal in this country.”

As we’ve seen earlier and as mentioned by Mr Robertson QC, the issue here is one of consent, and whether or not the alleged victim agreed to the acts. In the criminal law of this country, this brings us back to the Sexual Offences Act 2003, which states that where violence was used, either during or immediately before the act in question, there is a presumption that there was no consent.

In other words, if there is any violence during a sexual act and that act is then claimed to be against the person’s will, it will be for the accused to prove that there was in fact consent, not for the prosecution. The law recognises that violence and a “forceful” manner in a sexual act doesn’t automatically make it criminal, but it is more likely to be so and the responsibility to prove consent should then be on the accused rather than the alleged victim.

So although the law admits that “sexual encounters have their […] ebbs and flows”, it also recognises that “these complex human interactions” can indeed be criminal in this country…

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