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Julian Assange and the 'it was opposite day' rape defense

December 17, 2010 - 02:00 PM
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Julian Assange (Photo: Associated Press)

In an effort to introduce more rape joke ("it was sex by surprise!") into the commentary over the sexual assault allegations against Julian Assange, Andrew Sullivan quotes "an attorney who has handled a couple of rape cases." Our anonymous lawyer has got some interesting insights into the many ways rape can be just one big misunderstanding. Take it away:

As an attorney who has handled a couple of rape cases and worked with numerous others who handled both sides, I think, in all likelihood, there's only one answer to that question: no one will ever know. This is what bothers me most about the "withdrawal of consent" cases. It's not like people fill out paperwork before, during, and after sex detailing the contours of consent. It's sex for god's sake!

It's possible she said stop and he didn't hear it (how quiet is your sexual activity?). It's possible he heard a "no" but confused them with all the other "no's" that were of a very different sort. It's also possible that no one was aware that the condom was broke until afterwards (although from what I've heard, that's not true). Of course, it's also possible he heard her say no, understand what she meant, ignored her, and continued to have intercourse against her will.

High-profile rape cases never fail to inspire bizarre new interpretations of what exactly happens when two people have sex with one another. According to this attorney—who has handled rape cases—people accused of rape have a variety of exciting new defenses at their disposal:

1. You actually have to listen to women during sex now? What will they think of next! Here's a quick fix: What if your sexual activity is so loud as to drown out your sex partner's withdrawal of consent? Let's call this the "Your honor, I was doing it so loud I simply couldn't hear that I was raping her" defense. Note the subtle dig at people who have sex quiet enough to discern their partner's consent: "how quiet is your sexual activity?"

2. You know the old adage, "no means no?" What if, instead, we suddenly decided that "no" did not mean "no," for the purposes of wiggling out of rape convictions? This is the "Your honor, it was opposite day" defense. According to our trusty anonymous rape attorney, casual sex partners regularly scream "no" during sex, not to signal displeasure over a certain action, but rather for undisclosed, "very different" reasons. Is a man expected to simply assume that a woman he's never slept with before is using the term "no" in a literal sense? What is he supposed to do—ask her for clarification?

3. if you're in a pickle, try throwing out bizarre possibilities that have no relation to the facts at hand in order to cast suspicion over the allegations. "It's also possible that no one was aware that the condom was broke until afterwards (although from what I've heard, that's not true)." It's sex. Anything's possible!

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  1. phearlez phearlez

    Don Whiteside

    Dec 17, 2010 - 02:25:19 PM

    I think that quote just might be the case study for "it is better to remain silent and be thought a fool than to speak and remove all doubt."

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  2. trian1 trian1

    Trian One

    Dec 17, 2010 - 03:25:18 PM

    Ultimately, I think the point he is trying to get across is that withdrawl of consent cases are basically impossible to try in court. In such cases you have two people who consent to go behind closed doors and have sex. Then it becomes a case of two assumed innocent individual's word against the other. That is not to undermine the emotional, mental and physical damage that occurs to victims in withdrawl of consent cases. However, from a prosecutorial view, in a system that (thankfully) assumes one is inocent until proven guilty, it is damn near impossible to prosecute such cases when evidence of physical force is lacking. I think the lawyers misguided ramblings in the second part of the quote simply reinforce the idea that we don't, and can't, know what occured behind those closed doors.

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    • TJ TJ

      TJ T

      Dec 21, 2010 - 11:43:14 AM

      But do you see how "the lawyers misguided ramblings" could be a problem?  He was presented as an expert, and the "expert" said something really nonsensical and stupid.  It gives less credence to the argument as a whole.  Yes, I can see how it can be extremely difficult to try a withdrawal of consent case, but he sure did trip and fall over his explanation.

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