Some Thoughts On “Sex By Surprise”

Commentators are saying Julian Assange didn't rape anyone, and these are trumped-up charges of "sex by surprise," which means that Assange didn't wear a condom and days later the women he slept with are claiming rape. Totally unfair, right?

Well, no, I'm not sure it's that straightforward. The actual details of what happened are hard to come by, and are largely filtered through tabloid sources that are quick to offer crucial facts like the hair color of the women (blonde) and the clothes they wore (pink, tight), but it sounds like the sex was consensual on the condition that a condom was used. It also sounds like in one case, condom use was negotiated for and Assange agreed to wear a condom but didn't, and the woman didn't realize it until after they had sex; in the second case, it sounds like the condom broke and the woman told Assange to stop, which he did not. This is of course speculation based on the bare-bones reported description of events, but it's at least clear that "this is a case of a broken condom" isn't close to the whole story. (It's also worth pointing out that the charge is actually a quite minor one in Sweden, and the punishment is a $700 fine).

Withdrawal of consent should be grounds for a rape charge (and it is, in Sweden) - if you consent to having sex with someone and part of the way through you say to stop and the person you're having sex with continues to have sex with you against your wishes, that's rape. That may not sound entirely familiar to Americans, since the United States has relatively regressive rape laws; in most states, there's a requirement of force in order to prove rape, rather than just demonstrating lack of consent. Consent is more often used as a defense to a rape charge, and it's hard to convict someone of rape based solely on non-consent. Some states, like New York, have rape laws on the books which include "no means no" provisions for intercourse - basically, if a reasonable person would have understood that the sex was not consensual, then that's rape. It seems obvious enough, but those laws are not used nearly as often as forcible-rape laws; they aren't on the books in many states, and they're difficult to enforce even where they are.

Withdrawal of consent gets even trickier. It's an obvious enough concept for feminist thinkers who have spent more than 10 minutes considering the realities of sex and sexual assault: If you consent to sex but then at some point during sex withdraw that consent by telling your partner to stop, your partner should stop, and if your partner doesn't stop then that's assault. It's not too hard, for those of us who have had sex, to imagine how this works - I have a difficult time imagining any decent human being hearing their partner say "Stop!" in the middle of sex and not, you know, stopping. I can't imagine hearing my partner say "Stop" and not stopping. And if your partner is saying "Stop stop stop stop!" and you keep going, yes, you are raping them.

But the concept of withdrawing consent seems to be a little tougher for folks who think of sex as something women give to men (or men take from women); it's definitely a tougher concept for folks who think that sex inherently sullies women. I suspect that the thought process goes, If the damage (penetrative sex) has already been done, then the situation can't possibly turn into a rape, because the initial penetration itself occurred consensually, and it's that penetration that's the basis of the harm in any rape case. Consent, in that framework, isn't the point. The U.S. is a bit of a patchwork when it comes to withdrawal of consent laws, with some states recognizing that withdrawal of consent is valid and that it is rape if you keep having sex with someone after they've said no, and other states either not touching the issue or not recognizing as rape situations where consent is withdrawn post-penetration. Making the Assange story juicier blog-bait in the U.S. is the fact that we're deeply wedded to the notion of rape as forcible; despite many of our best efforts, a consent-based framework for evaluating sexual assault is not yet widely accepted. So we hear "she consented to sex but only with a condom and he didn't use a condom and now she's claiming he raped her" and we go, "say what?", because that's so far removed from the Law & Order: SVU sexual assault model. When, really, if you evaluate sexual assault through the lens of consent rather than force or violence, the picture starts to look a little bit different.

Whether withdrawal of consent is what actually happened here is impossible to tell, so I'm not suggesting that Assange is a rapist or that these charges are 100% definitely on-point; I have no idea. But neither do the commentators who are saying that Assange did nothing more than have sex without a condom. And it's important to counter the "haha sex by surprise those crazy Swedes" media narrative with the fact that actually, non-consensual sex is assault and should be recognized as such by law. Consenting to one kind of sexual act doesn't mean that you consent to anything else your partner wants to do; if it's agreed that the only kind of sex we're having is with a condom, then it does remove an element of consent to have sex without a condom with only one partner's knowledge. To use another example, if you and your partner agree that you can penetrate her, it doesn't necessarily follow that she has the green light to penetrate you whenever and however.

I'm not particularly interested in debating What Assange Did or Whether Assange Is A Rapist, and I'd appreciate it if we could steer clear of that in the comments section. Rather, I'm interested in pushing back on the primary media narrative about this case, which is that women lie and exaggerate about rape, and will call even the littlest thing - a broken condom! - rape if they're permitted to under a too-liberal feminist legal system. In fact, there are lots of good reasons to support consent-based sexual assault laws, and to recognize that consent goes far beyond "yes you can put that in here now." It's a shame that the shoddy, sensationalist reporting on this case have muddied those waters.

This post originally appeared on Feministe. Republished with permission.

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