Fresh from a birthday celebration that trumpeted his status as the "Most Dangerous Man in the World," Julian Assange was back in court today to fight extradition to Sweden. And though his new lawyers seem to have wised up that victim-blaming wasn't helping their case, they continue to argue that what took place in Sweden with the two women doesn't count as rape in the UK.
Assange attorney Ben Emmerson said before the court,
"Nothing I say should be taken as denigrating the complainant, the genuineness of their feelings of regret, to trivialise their experience or to challenge whether they felt Assange's conduct was disrespectful, discourteous, disturbing or even pushing at the boundaries of what they felt comfortable with."
He then argued that Assange was being unfairly punished for a "philosophical and judicial mismatch" about what constitutes rape in Sweden and in England. He read from the two women's witness statements in graphic detail, and said that the arrest warrant was misleading because it characterized the events as rape and molestation. (Assange has not been charged with a crime, but Swedish investigators want him to return there for questioning before they decide whether to bring an indictment.)
This has been heralded in some quarters today as a tacit concession from Assange's camp that the women weren't lying about the events. But they've never officially said the women were — early on in press statements, one lawyer, Mark Stephens, painted them as honeytraps, something there's never been any evidence of and from which Assange backtracked, saying his lawyer claimed he'd been misquoted. Assange himself has said the women had "unprotected sex and they got into a tizzy about" STDs. He said they were "bamboozled" by the police into pressing charges: "These women may be victims in this process."
And the last time they were in court, Assange attorney Geoffrey Roberts argued that what had happened between Assange and the women fell under the fact that "sexual relations are complex human interactions" with "their ebbs and flows. What may be unwanted one minute can with further empathy become desired." That wasn't entirely absent from today's proceedings, during which Emmerson argued that the warrant had been incomplete.
His account has details that haven't been publicly reported yet:
"The appellant's physical advances were initially welcomed but then it felt awkward since he was 'rough and impatient'... they lay down in bed. AA was lying on her back and Assange was on top of her ... AA felt that Assange wanted to insert his penis into her vagina directly, which she did not want since he was not wearing a condom ... she did not articulate this. Instead she therefore tried to turn her hips and squeeze her legs together in order to avoid a penetration ... AA tried several times to reach for a condom which Assange had stopped her from doing by holding her arms and bending her legs open and try to penetrate her with his penis without using a condom. AA says that she felt about to cry since she was held down and could not reach a condom and felt this could end badly."
The part that Emmerson argues was unfairly left out of legal accounting and wouldn't meet the standard of unlawful coercion in London is this:
"After a while Assange asked what AA was doing and why she was squeezing her legs together. AA told him that she wanted him to put a condom on before he entered her. Assange let go of AA's arms and put on a condom which AA found."
This account makes it ambiguous whether Assange penetrated AA without a condom at all, but since subsequent accounts have her trying to track down AA with the other woman in the case to be tested for STDs, that suggests he did.
But, Emmerson said, crucially there was no lack of consent sufficient for the unlawful coercion allegation, because "after a while Assange asked what AA was doing and why she was squeezing her legs together. AA told him that she wanted him to put a condom on before he entered her. Assange let go of AA's arms and put on a condom which AA found." He apparently did not mention that AA told the police that she believes Assange had "done something" with the condom to rip it and ejaculated inside of her anyway. Assange denies that he tampered with the condom, said he did not notice that happening, and that she had never mentioned it.
In the second case, "the alleged rape by Assange when he had sex with SW when she was asleep or half asleep was not a crime, Emmerson says, because SW then consented." Although the court is not considering the merits of the case — only whether to grant him an appeal on a judge's extradition order to be questioned — both of these arguments hinge on the idea that subsequent and prior consent don't count as rape.
What really seems to have changed today is that Assange, or someone close to him, got smarter about his legal strategy. According to the Guardian, "The changes to his legal team –- Gareth Peirce replaces media lawyer Mark Stephens [he of "honeytrap] and Ben Emmerson replaces Geoffrey Robertson QC -– are thought to be part of a more conciliatory approach by Assange."
Julian Assange Extradition Appeal Hearing: Live Coverage [Guardian]
Julian Assange's Lawyer Tells Extradition Appeal Arrest Warrant Is Invalid [Guardian]
Related: 10 Days In Sweden: The Full Allegations Against Julian Assange [Guardian]