One unexpected consequence of the WikiLeaks saga has been to turn the spotlight on the debate over rape, sex, and consent. Julian Assange, journalism's misbegotten enfant terrible, has been hounded by accusations of sex crimes after he vaulted to fame by releasing leaked classified documents on the Internet. The charges were dismissed but then reinstated; Assange was arrested in London earlier this month and was released on bail last week while he fights extradition to Sweden. The nature of these charges has revived questions about where the law should draw the line between bad behavior and criminal acts, and whether the feminist rethinking of rape has made it easy for any man to be targeted.
As is widely known, Assange is accused of sexual offenses against two women: Anna Ardin, a left-wing activist who helped organize his speaking tour in Sweden last August, and photographer Sofia Wilen. The prosecution asserts both encounters started out as consensual but later turned into assaults—partly, it seems, because of Assange's failure to use a condom despite the women's wishes. The triviality of the offenses is compounded by the women's un-victim-like behavior afterward: Ardin had sex with Assange again and threw a party for him; Wilen made him breakfast. It was only when the women learned of his two-timing that they went to the police—initially intending to force him to get tested for sexually transmitted diseases.
In the United States, the sex charges have been met with near-unanimous derision across the political spectrum. Conservative media personality Glenn Beck and feminist writer/activist Naomi Wolf have both satirized the case as one in which the man acted like a jerk and the women are seeking payback for hurt feelings. This unanimity is no doubt partly due to the fact that, on the left, the instinct to back women claiming sexual abuse by men has been blunted by Assange's status as a rebel fighting the power—while on the right, scorn for feminist sexual ideology has proved stronger than distaste for Assange. Along with the Assange prosecution, Swedish sexual assault laws have also come under ridicule for defining the offense so broadly that half the male population could end up in the slammer.
Some feminists are not amused. MSNBC anchor Keith Olbermann decided to suspend his Twitter account after being slammed as a "rape apologist" for tweets expressing skepticism about the charges. In The Washington Post, Jessica Valenti, a star of the feminist blogosphere, has lashed out at what she considers distorted accounts of the case while offering her own highly selective summary of the facts. Valenti thinks the real problem is "our country's overly narrow understanding of sexual assault," which falls woefully short of Sweden's far better standards.
And what is this "narrow understanding"? According to a feminist lawyer quoted by Valenti, "we're deeply wedded to the notion of rape as forcible" instead of focusing on consent. Actually, sexual intercourse without consent is virtually always a part of the legal definition of rape. But typically, American law also requires force or threat of force—though, as a result of feminist advocacy, some states have moved toward a strict construction of "no means no" so that, if a woman says no and the man doesn't stop, he can be found guilty of sexual assault even if she submits without being physically subdued or threatened with violence.
Valenti also laments that American law is mired in the archaic notion that once consensual penetration has occurred, the woman has no standing as a victim if she withdraws her consent and the man proceeds against her wishes. As evidence of just how archaic the American mindset is, she asserts that in 2007, Maryland's Court of Special Appeals not only upheld this doctrine but also explained in its ruling that "anything after the initial 'deflowering' of a woman couldn't be rape because 'the damage was done' to her virginity," and that the injured party wasn't even the woman herself but the "responsible male"—father or husband.
It seems unbelievable that any U.S. court would use such reasoning in the 21st Century. And, in fact, it didn't: Valenti's quotes are from a passage in which the court describes (but certainly doesn't endorse) historical attitudes toward rape. The court did rule that rape is not committed when consent is given and later withdrawn, but solely on the grounds that this interpretation was rooted in legal tradition and should be changed through legislative action, not judicial mandate.
Few would deny that a man who holds down a struggling woman and forces her to have sex is committing rape, regardless of initial consent. But things are rarely as clear-cut. The Maryland defendant was a teenager who took about five seconds to stop after his partner told him to stop. The rape charge would seem absurd if it weren't for the overall context: the young woman, alone in a parked car with two teenage boys, had been subjected to repeated, physically aggressive unwanted advances. Applying such rules to a genuinely consensual situation seems like a good recipe for a nightmare.
Once, feminist reformers rightly fought against laws that required a rape victim to fight her attacker "to the utmost." But removing any element of actual or threatened force from the crime of rape makes it too easy to criminalize miscommunications and morning-after regrets. Should non-consent require a firm "Stop!" or does it cover a hesitant or coy "Maybe we should stop"—perhaps accompanied by actions that contradict the words? Is the man guilty of rape if the woman says early in the evening that she does not want to have sex, but does not rebuff his overtures later? Is the woman a rapist if the roles are reversed? Writing the "forcible" part out of the definition of rape makes it much more of a two-way street.
Valenti laments that U.S. law is "ill-equipped to actually protect women in realistic scenarios." But, in realistic scenarios, sexual relationships are complicated and messy; it is an area where people often don't think rationally, and context is everything. When a man initiates intercourse with a woman who is asleep—one of the accusations against Assange—the existence of a prior sexual relationship is hardly irrelevant. Perhaps that is why Valenti has to concede that, under Sweden's admirably progressive sex crime laws, only 20 percent of rape complaints ever go to trial and only half of those result in a conviction. British author Joan Smith, who has expressed concern over the wave of support for Assange, has noted approvingly that "sexual manners and sexual conduct come in for careful consideration in Sweden." But when rape law is used to regulate "sexual manners" rather than sexual violence, it has seriously strayed from its purpose.
Earlier generations of feminists argued that rape should be treated the same as any other violent crime: The victim should not be subjected to special standards of resistance or chastity. These days, the demand for special treatment is so blatant that some activists openly support abolishing the presumption of innocence for rape cases and requiring the accused to prove consent (a proposal Valenti cites with obvious approval). In an ironic twist, these activists actually seem to hold women in very little esteem: in their world, women are too timid to push a man away if he won't take no for an answer and too addled to know that they have been raped.
The Julian Assange who emerges from the legal documents in the case is not a sympathetic man. He comes across as a narcissistic cad and a user, not unlike some men of the 1960s Left who saw the women in the movement as servants and sex toys rather than comrades. And yet his tribulations may well become a "teachable moment" that will help draw attention to the dangers of ever-expanding definitions of rape and overzealous prosecutions. In that case, as with the WikiLeaks saga itself, Assange will have done some good no matter how dubious his motives.
Cathy Young writes a weekly column at RealClearPolitics and is also a contributing editor at Reason magazine. A version of this article originally appeared at RealClearPolitics. This column first appeared at Reason.com.