Wednesday, December 08, 2010

Sweden's Rape Laws Infantilise Women? (Regardless of Assange)

I have no idea whether Julian Assange is guilty of rape or not.  If he is guilty, he should be tried (and not in a kangaroo court) and duly punished.  What worries me more is a strange silence on part of journalists about a more bizarre twist in this tale. That twist is about Sweden's distinctly bizarre rape laws and the generally uncritiqued but dangerous corollary of the infantilisation of women by those laws.

The only reason I have noticed Sweden's rape laws is because of the current case against Wikileaks' founder.  The facts are murky but at least this is much is clear: Assange had sex with two different women within a three day period, and behaved in general promiscuously and as a cad.

Frankly, two is less than many rock stars get up to, but then Assange apparently was far more interested in his computer than in the second woman with whom he had sex (her statement).  The rock star comparison is not out of the blue.  Whether we agree with Wikileaks or not, Assange has become a sort of internet, geeky version of a liberal, crusading rock star.  If you think about it, he is the ultimate geek fantasy: a lap-top toting Luke Skywalker singlehandedly battling the Empire. Are we surprised that, unlike the PG rated Hollywood version, this geek not only has a sexual appetite, but also willing candidates lining up?  Hell, even a killer and wife beater gets celebrity status and wild fans these days; remember the Moat saga?  Assange, in contrast, has the added advantage of a liberal international halo to boot!

But neither Assange's sexual escapades nor his rock star status are of particular concern for this blog post. Instead what is more worrying are the epic twists and turns of Sweden's rape laws which appear to be applied at discretion.  Already this case has gone from being upgraded to rape, then downgraded to molestation, changed to rape by surprise, rape because the condom broke, and finally, yesterday's he "used his body weight to hold her down," (which is definitely rape, but strangely brought out only three months in to the legal process).

Of more concern is a rather odd point, not discussed in the ad nauseum articles about rape in the mainstream media: that the Swedish prosecutors themselves have asserted that the consent of the women is not in question.  Over the past week, as a result, my feeble feminine brain has been trying to understand how consensual sex is rape.  Surely the term applies to lack of consent?

Then the accusers' lawyer Claes Bergstrom explained the contradiction of a crime of non-consent committed with consent by declaring: "they (the accusers) are not jurists.”  As one of Assange's lawyers (and therefore to be taken with a grain of salt) pointed out: "How the Swedish authorities propose to prosecute for victims who neither saw themselves as such nor acted as such is easily answered: You’re not a Swedish lawyer so you wouldn’t understand anyway."

The problem here is more worrying than simply of the prosecutor or even the entire Swedish government caving into foreign (presumably US) pressure.  The issue here is of a supposedly developed, socially progressive nation - which can't stop itself from taking on the mantle of moral superiority on all global issues - assuming that a rape victim cannot decide whether she has been raped.

Isn't this precisely the sort of infantilisation that feminism fought against?  Isn't this infantilisation insulting and demeaning to all women, and not only those who have been raped?

As a long time feminist, a sometime volunteer for abused women, and most importantly, a woman myself, I need to say this loud and clear: a woman KNOWS when she is raped.  Taking the power to identify her own rape from a rape victim is the most derogatory act that any state can perpetrate.

There is another under-reported aspect to Sweden's worrisome infantilising of women in context of its rape laws. Assange's lawyer, Michael Caitlin points out that the Swedish prosecutor Marianne Ny is also involved in "reforming" Swedish rape laws.

Already, as part of that infantilising women as creatures who obviously need to be protected by their nanny state against men, the Swedish rape law apparently considers consensual (albeit regretful in the morning) sex without condom a "sex crime." Not agreeing to be tested for sexually transmitted diseases - as far as I can make out from press reports - is also a "sex crime."  But apparently, these laws are not strict enough for the Swedes. (An aside: are we surprised they have such a high suicide rate? With little sunlight, cold climate and state regulated strictly conformist sex, what else would they do?)

More seriously, the impending "reform" would apparently "introduce a test of whether the unequal power relations between the parties might void the sincerely expressed consent of one party."  In principle that sounds good, right?

But how will this "unequal power relation" be established?  Is it money? If a man buys me dinner, is he coercing me? Or will a Swedish man, by dint of history, gender, race, all of which position him as "more powerful" be considered a rapist simply for having sex with a non-European woman like me, despite my express consent?  Or will the imbalance be because of age? Shall Sweden prosecute all couples who are not exactly equal in age? What happens to not only men who like younger women, but the newly emergent breed of cougars? 

Perhaps it shall be based on intelligence, with a surgeon accused of rape should she have sex with a carpenter?

Or is it temperament? Will all of us going to Sweden be required to carry insta-psychometric tests to see if each partner is of the same psychological ability?  What if a woman had sex with her partner while the latter is suffering from the horrific man-flu,  would the Swedes believe that she were being coerced by his whinging?

On a more serious note, are these "reforms" actually yet another racist law meant for immigrants but couched in "liberal, protect European culture" vocabulary? 

Back in my riotous days of student protests in the US, we demanded that "government get out of my womb."  But in Sweden, it seems that the government is present in the beds, vaginas and wombs!  All in such a benign big brotherly fashion that even Orwell would have trouble imagining it.

To be absolutely honest, Sweden is welcome to infantilising its women.  This isn't the feminism I fought for, definitely is not the feminism I support, and will not be one I will teach to the young girls of my family.

21 comments:

  1. Thankyou for a thoughtful analysis It'll be good to get the facts confirmed - not debating that you've written but it seems so incredible that you think 'surely the press can't have got that right...'

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  2. Thank you Ann. I think you have touched on a whole other issue: in the last ten years, mainstream media has proven itself so unreliable (I speak as an old journalist), not covering stories that were important, spinning things for corporate or government benefit, playing celebrity chasers rather than serious political reporters, and generally abandoning its watchdog role that a lot of us are no longer sure we can believe it. I think that is why wikileaks has such resonance. But that is a whole another blog post. :-)

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  3. A most enlightening post and so refreshing too. I will certainly feature it on my Battlefield of Love blog

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  4. Thank you Claire. Will visit your blog too.

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  5. Aanchal Arora12/11/2010 4:27 pm

    Its amazing, I'm pursuing English majors and I know how difficult can statements like, "consensual sex, even between long-term partners, can be construed as rape when there are unequal power relations between them", be.
    Anyhow, this is the first time I've stumbled upon your weblog and found the Ideas well structured and somehow, I can very well identify with them too. Would keep visiting. Good work! :)

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  6. Hi Aanchal. My point exactly. This is very dodgy legal territory (more so than now).
    And thank you. Please do come back.
    Best
    Sunny

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  7. Good take Sunny. I'm in favor of harsh treatment of real rapists. Rape is never a thing that any woman should have to endure. But I also think that if we are going to throw a man in prison for four years, that it's not too much to expect a woman to give a firm and unambigous "No".

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  8. Thanks Tilo. I support strong anti-rape laws and clear prosecution. But here it seems that not only is the law very vague - and therefore most likely not useful for successful prosecutions, there is more going on.

    The soft-soft European nanny state approach with these laws and the planned "reform" does not convince me at all.

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  9. Sunny, have you read the interviews with Ramana Maharshi? Hope you don't mind the subject switch, but you seem like you might be interested in that kind of thing.

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  10. Hi Tilo,
    No I havent. My interest is more classical philosophy, hence the other blog I write on the Arthashastra.
    But will look it up

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  11. Okay, no problem. I saw your other site and I also saw that you had an interest in the Mahabharata. The Arthashastra seems to be more political and the Mahabharata seems to be more spiritual. I was wondering if your interest was in one or the other or in both. Comparing the test for ministers that you mentioned, the Mahabharata lists the four goals of life as dharma (right action) artha (purpose) kama (pleasure) and moksha (liberation). So there are commonalities, but that last one is huge difference. In any case, if your interests lean more to the political, Ramana Maharshi is probably of no interest to you.

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  12. Actually the Mahabharata is also very political as well as taking on issues of war and civil ethics.

    The four "goals of life" or the purusharthas are not exclusive to either text but essential to all ancient classification of human goals and lives in pretty much all Indic texts. The Arthashastra works off the very utilitarian idea- found also in other philosophical texts including the Bhagwad Gita - that a balance of the first three will lead automatically to the fourth (moksha). But as a political treatise (shastra) and constitution, it focusses on the use of the first three as instruments of policy.

    Best wishes.

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  13. "The Arthashastra works off the very utilitarian idea- found also in other philosophical texts including the Bhagwad Gita - that a balance of the first three will lead automatically to the fourth (moksha)."

    I find that confusing. Politics would seem to lead one in the direction of attachment, metaphysical dualism, and a deeper immersion in the illusion of life as something more than maya. Realized individuals discard the distinctions of good and evil, and they have no stake on the outcome of worldly actions. In fact, they believe that the world does not need to be fixed or improved. Politics dwells on the distinctions and highlights them. I would be grateful if you could provide me with a pointer to where in the Bagavad Gita I can find the information about how the other three elements lead to moksha.

    We are actually traveling down an old path here. Life defined by concepts of law, virtue, morality, etc. were positions held by Confusious. Lao Tse discarded those concepts, claiming that they produced an artificial and pretended form of virtue in man and that real virtue came from living in accord with a more natural way that involved giving onself up to the flow of the universe.

    Many gurus will tell you that the desire to improve oneself is actually a desire that is held by the ego self and is simply a pretention so that the ego self can take more pride in itself. They say that the only meaningful way to becoming realized is by searching for the ego self until it becomes an inescapable conclusion that no such self exists.

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  14. Tilo, not the best time in terms of work but I dont see why that is confusing.

    Krishna never tells Arjuna to give up worldly responsibility. The Bhagawad Gita's discussion of karma yoga is entirely based on this principle of balance (Chap 5 may be??). All six orthodox schools of classical Hindu philosophy restate the same. The Buddhist Dhammapada makes a similar explanation for the Middle way.

    I dont follow gurus and nor do I listen to them. Perhaps in that sense I am a proper Hindu and follow a much longer tradition of "anvikshaki" (self-wisdom). None of that comes from removing oneself from the world but rather from participating fully without fear or greed.

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  15. Hi,

    I stumbled upon this when reading Mrs. Wolfs outrageous opinion piece in Huffington Post. As with that article there are many factual errors in your text I think you should be aware of:

    • The “epic twists” are normal in Sweden (and not epic at all). An alleged victim has the right to appeal a decision by a subordinate prosecutor. This is standard procedure and due process in a Rechtsstaat.
    • There is no “rape by surprise”-law in Sweden. I don’t know why this reproduced lie continues to surface all over. It is a crime to have sex without a condom if the partner wants you to wear one as well as having sex with a sleeping person if the sex act is not consensual.
    • The accusation that Mr. Assange used his body weight to hold one of the alleged victims down wasn’t “brought/…/out three months in to the legal process”. Since we have a confidentiality of investigation in Sweden none of the claims have been known until some details leaked. You reading about in the paper do not equal it being brought out.
    • Due to the confidentiality of investigations you don’t know what the consent amounted to. But once again, if you have sex with someone without a condom even though this person insists on you wearing one this is a sexual molestation.
    • You don’t know the views of the women accusing Mr. Assange yet you claim that they don’t feel they been raped. How come? This is especially startling when you call someone who talks with them on a daily basis and has their full confidence paternalistic.
    • The high rate of reported rapes in Sweden is due to what constitutes rape here compared to other countries, how we report rape allegations and the cultural willingness to report rape. Not due to rape being more common in Sweden compared to other countries. This is common knowledge.
    • There is no impending reform. There is a discussion on how to strengthen sex crime victim’s rights.
    • It is not a crime to refuse STD-testing if a sexual partner asks you to.
    • Our suicide rate is not high. Why would you believe such an old myth?
    Due to at least nine factual mistakes it’s not easy to discuss your subjective views of how we infantilize women with a racist agenda.

    What is more interesting is that you, together with a lot of other feminists, disregard the claims made by two alleged victims because Mr. Assange is the one accused. Luckily a lot of us can separate WikiLeaks the organization with Mr. Assange the individual.

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  16. OPP: Thank you for the comment and the clarifications.

    Unfortunately, you also seem to jump to a lot of conclusions including that my post is a defense of Julian Assange.

    Perhaps some of the confusion is because of Swedish lawyers and prosecutors making statements that make little sense? I have gone through all major media outlets, including English ones from Sweden and the issue is as confusing as ever.

    Which then makes the issue of Sweden prosecuting Assange a clearly political ploy rather than a straight criminal investigation. Even in the wars in Congo and Bosnia, Interpol did not issue notices for rape. So why the special generosity by Sweden for Assange? Please explain.

    The issue of "reform" to rape laws is also one that international as well as English language Swedish press has reported. My MAIN point was the idiocy of these proposed laws (as well as some of the subsidiary laws as reported in the global media which again infantilise women) which you have ignored.

    So far it seems that the "alleged" victims have had less to say about Mr. Assange than the patronising and paternalistic Swedish state (with VERY dirty hands in the international arena btw).

    It seems that your nationalistic streak cannot cope with criticism? Perhaps you would like to answer the questions I raised about the so called "reforms" that Marianne Ny has apparently talked of? I shall be happy to learn more.

    Finally, perhaps you do not understand sarcasm, irony or humour? Your laundry list is slightly hampered by this disability.

    Cheers.

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  17. I didn't write that you defended Mr. Assange now did I? I did state that you disregard two possible sex crime victims in order to speculate about possible reforms. I won't comment on your views regarding that since it's just speculations, based on misinformation and misunderstandings.

    The other issue is not confusing at all. If your familiar with Swedish law it's apparent to you that the case have been dealt with by the book. That international media have been incapable of explaining the details is a pity, but Guardian at least have been giving a more nuanced picture lately.

    International medias incompetence does, however, not make this a "clearly political ploy". This is just conspiracy theories. The facts are that we by in almost all cases arrest people who do not live in Sweden and/or have no known address if they are under investigation for crimes with a prison time of a year or more (due to risk of flight). International search warrants and later arrest warrants are therefore standard procedure when the accused leaves Sweden.

    Also, the alleged victims haven't said anything yet due to the confidentiality of investigation. Everything you've read so far are just speculations and attacks from Mr. Assange and his lawyer's who've behaved in the most unprofessional and despicable way.

    The "state" has nothing to do with this by the way, the judicial system here in Sweden is separated from the government (thus it is a moot point if Sweden has very dirty hands).

    I don't know if Mr. Assange is guilty or not. It's for the Swedish courts to decide. But I do know that he is not above the law and that his possible victims should be treated with respect.

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  18. OPP: "But once again, if you have sex with someone without a condom even though this person insists on you wearing one this is a sexual molestation. "

    This one makes no sense to me OPP. What do you mean by "insists on you wearing one"? Is she saying "wear one, but if you don't I'll still have sex with you"? Or is she saying "wear one and if you don't I won't have sex with you". In the first case it is still consentual sex - not rape. In the second case it means that she said "No" to sex and so the condom is no longer part of the issue. It is then a simple case of rape. But that doesn't seem to be the case here. Please explain.

    OPP: "as well as having sex with a sleeping person if the sex act is not consensual."

    I don't understand this one either. In both of these cases the women got naked and got into bed with Assange. How do you have sex with a sleeping woman? I have a hard time immagining that as possible. It may be possible with a passed out woman, but not a sleeping woman. I can see someone trying to initiate sex with a sleeping woman - rubbing up against her, etc. - but I can't see actually having sex with a sleeping woman. Now if you consider the attempt to initate as rape, that seems rather absurd, since the woman got into bed with Assage and got naked voluntarily. What, really, does she expect to happen? Does a woman have any responsibility for anything in Sweden or does Swedish law consider men as horny lying animals with no control while women are always chaste, good, pure, and truthful?

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  19. By the way OPP, I also wanted to mention that I'm no fan of Assange. I think that he is simply a left wing crusader and a guy looking for fame and fortune. He tried to take credit for the Climategate emails when he actually had nothing to do with them. By the time he put the emails on wikileaks, many people had downloaded them from the original source and the distribution process had already stared. Those emails were going everywhere even if wikileaks never carried them. After the fact he pretended to be objective about what he leaked since the Climategate emails were not the kind of information he wanted anyone to have.

    But despite my distaste for Mr. Assange, and despite the fact that I would like to see him in jail if he actually raped someone, I so far have seen no evidence that any rape occured in any just sense of the word rape.

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  20. I seem to be going on today; but I also had a question about this OPP.

    "The accusation that Mr. Assange used his body weight to hold one of the alleged victims down"

    Is this what most people from most other countries call "the missionary position"? Are the only politically acceptable positions in Sweden standing up or woman on top? Because it seems to me that in any other position, the man would be holding down the woman with his body weight.

    The thing that I am looking for here, and don't seem to see, is somewhere when the woman said "No". Or does Sweden consider this too onerous a task for the woman when she is going to throw a man in prison for four years?

    Does it matter in Sweden that one woman stalked Assange from even before he arrived in the country and that the other woman loaned him her apartment and then convieniently managed to come home early? Does it matter that both women were very willing to spend pleasant time with Assange after the supposed rapes and before reporting them as rapes? Doesn't this play into the question of women "knowing if they had been raped"?

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  21. Thank you both OPP and Tilo for your comments.

    Tilo: Interesting points. I am utterly baffled by the reporting that a "man's erect penis pushing against a woman's back" may be construed as a "sex crime." I guess that, under Swedish law, every commuter in NYC, London or Tokyo metros at rush hour is either a victim or a sex criminal by that definition. :-)

    OPP: I suggest we agree to disagree. Given Interpol's record (you can check online), few rapists are ever sought out on such an international scale, which suggests a little more government involvement than you are willing to accept.

    As a foreigner, I don't need to know the nuances of Swedish law, except when it makes a complete ass of common sense; it is SWEDISH prosecutors who declared that the alleged victims' "consent was not in question."

    For me, the current fracas is especially hilarious given Swedish stance of moral superiority vis a vis the rest of the world.

    If Sweden cannot explain its laws in common sense terms, then that is its problem. IF however it seeks to continue playing an international role, it better get its game up.

    Finally, I have already expressed my opinion in my blog. I have very little else to say.

    Cheers

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