Lawyers in the Bradley Manning case have produced logs of online chats that claim to show Mr Assange coaching the young private on how to break passwords to gain access to military computer networks anonymously.
This is something of a game changer regarding the legality of Assange’s actions. Publishing information—regardless of how it was obtained, is generally protected by the first amendment. Soliciting that information is more dubious—but probably still okay.
But you don’t have a Constitutional right to help somebody hack into military computer networks.
Rape apologism usually stems from a gut feeling that not all rapes are equally abhorrent. Society reacts differently to cases where consent was impossible due to age or intoxication than it does to aggravated rape by physical force. It gets even harder when we get into the murky areas involving mistakes about consent. “He behaved badly,” we might say. “But he’s not a rapist.” At least, he doesn’t fit our picture of a “rapist”—even if he (or she) fits the legal definition.
Just as there are different degrees of murder, there are different degrees of sexual assault. But sexual assault, like murder, is always criminal, always abhorrent, and never okay.
Julian Assange has been charged with rape. Sweden’s rape laws are more nuanced than ours—which I think is good policy. It allows the recognition of the gravity of offenses without inviting apologetic comparisons to more graphic offenses. Assange has been charged with the least severe type of rape somebody can commit and still be a rapist. If convicted, that still means he’s a rapist. (The type of rapist who alleges all sorts of international conspiracy to cover his tracks.)
The facts of the case are a bit murky—but the crucial issue is what constitutes consent and whether consent, once given, is a blank check. It appears that Assange had consensual sex with with two women. (Seriatim.) Both women, apparently, consented to have protected sex with him. Assange, apparently, subsequently had non-consensual, unprotected sex with both of them. (Again seriatim.) Supposedly in one case a condom broke during the sex—which is clearly not criminal unless the sex continues post-rupture in a manner that one party doesn’t consent to. In the other case, the women was allegedly asleep when the sex occurred. (Or, as seems more probable, when the sex was initiated.) The primary legal issue appears to be whether consent to sex with a condom is the legal equivalent of consent to sex without a condom.
It isn’t. At least, it shouldn’t be. Consent isn’t a blank check. Consent to one sort of sex isn’t consent to any sort of sex.
Assange hasn’t been convicted of anything—but there are a few things nobody is disputing.
1) Assange had protected sex with both of these women. 2) Assange subsequently had unprotected sex with both of these women. 3) The women are pressing forward with rape charges. 4) Multiple courts in multiple countries have found the charges severe enough to pursue. 5) There has been no evidence whatsoever that anybody is exerting political pressure on the courts to persecute Assange. 6) Assange’s attorney says he didn’t do it. (When I did criminal defense, by extreme coincidence, none of my clients did it either. The astonishing part is that people accept Assange’s attorney’s version of events uncritically.) 7) Assange has attempted to deflect attention from the serious charges he faces by claiming they are politically motivated. 8) It seems to be working.
None of this has anything to do with whether WikiLeaks is a force for good, a force for evil, or something else. Assange, eccentric accused-rapist that he is, is not WikiLeaks. WikiLeaks is not Assange.
Edit: I think Lena Chen has an excellent take on the matter.