The district court remanded Julian Assange on suspicion of, inter alia, lesser rape per chap 6 § 1 para 2 of the criminal code (as worded prior to 1 July 2013). The prosecutor explained the grounds for suspicion as Julian Assange wrongfully exploiting complainant S being asleep by initiating unprotected sex with her.
The sequence of events has been described by S as follows in an interrogation 26 August 2010 (detention memo p 10):
They fell asleep and she woke by feeling him penetrate her. She immediately asked ‘are you wearing anything’ and he answered ‘you’. She told him ‘you better not have HIV’ and he replied ‘of course not’. She felt it was too late. He was already inside her and she let him continue.
From the interrogation with S it is clear that she and Julian Assange had had sexual relations on at least two earlier occasions during the evening/night, and that she and Julian Assange after the unprotected sex joked about what would happen if she were pregnant (p 10 f).
To establish criminal responsibility under the relevant provision, the suspect must have wrongfully exploited someone’s helplessness. The assessment of whether there exists a state of helplessness shall be based on the situation in its entirety (prop 2004/05:45 p 138). From this follows that the situations described in the legal code, including sleep, cannot, on their own and without consideration taken for other circumstances, be regarded as constituting a state of helplessness (compare with NJA 1988 p 279 as regards mental illness).
A case where sleep cannot be seen to constitute a state of helplessness must be where the partners have a sexual relationship and where neither of them can remember initiating sex with the other partner sleeping. The purpose of the penal code is to protect sexual integrity, and under what forms people have sex (prop 2004/05:45 p 136).
The criminal area is bordered by the requirement ‘wrongfully exploit’ which can be perceived as a demand for causality between the state of helplessness and partaking in sexual activity (prop 2004/05:45 p 138). As follows from the penal code, it’s a question of sex or a sexual act comparable to intercourse.
Already by the testimony of complainant S it is clear she did not oppose the sex per se. Even if there not be clarity about her condition, that is to say if she really was asleep or had just woken when the sex began, she evidently saw it as a natural part of the sexual relationship she and Julian Assange had begun earlier.
What S initially reacted to was that Julian Assange, according to her testimony, was not using a condom. Whether intercourse is protected or not has of course no bearing on how the act is defined, nor can it be regarded as meeting the requirement for wrongful activity. Intercourse per se cannot be regarded as more wrongful if it is unprotected rather than with use of contraceptives.
In addition, S apparently consented to the continued unprotected sex. Even if consent, in principle, does not exonerate, what’s being discussed here is only the consent given when in a state of helplessness (see comments to penal code 6:1 p 7 and prop 2004/05 p 136). In the case sex is begun with someone who is sleeping, and that person when he or she wakes consents to continuing sex, the sexual activity cannot be regarded as wrongful.
This follows from the example of when unprotected sex is begun, but the one partner asks for contraceptives, whereby the sex is interrupted to arrange for the contraceptives, and then sex resumes as protected. Or when the one part has opted for protected sex, but accepts a continuation unprotected. And it gets stranger still if consensual sex were claimed to have begun as an act of rape.
In summary, the defence move that the requirement for wrongdoing targets the sexual act itself and not the way it is conducted. If the sex per se is not regarded as wrongful with consideration taken for the circumstances in the case in question, then judgement is not affected by it being carried out one way or another.
Thus it can be said that the prosecutor’s case does not provide such conditions, legal facts, that can be regarded as constituting a criminal act according to chap 6 § 1 para 2 of the criminal code.
Further, there is significant lack of clarity regarding the condition of S, particularly in light of S having, in an SMS message to a friend, expressed herself in a way that speaks for her being awake when the sex began. We request that the prosecutor turn over the SMS message in question to the appeals court.