A reader writes:
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.
Many of the prosecutors I've worked with absolutely hate these types of sex crimes. As one attorney once told me: "Of all the cases I see, I feel like 50% of them are b.s. and 50% of them are certifiable felonies, and I have no idea how to tell them apart." For this reason, most of these kinds of cases never see a courtroom (at least here in the U.S.).
So to me, this moral quandary is very similar to the death penalty debate: How many innocents are you willing to put in jail in order to get the actual criminals? And remember, Assange would be innocent if he actually did not hear her object - not that there's any way to certifiably prove such a thing one way or the other. Which is precisely the problem.
I'm a longtime reader, but this is my first time writing in to respond to a post. The reader you quoted saying that "It seems unlikely to me that anyone would include a situation that did not include an explicit 'no' under the category of rape, but then I've learned that feminists often believe things that I find impossible to imagine" hasn't cut to any chase at all, unless you count a crabby and ill-defined crusade against feminism. Any serious consideration of rape shows that he's way off-base. I'm a law student, and I can tell you that American rape case law includes plenty of examples of rape without an explicit "no," including but not limited to victims who are minors, mentally incompetent, drunk, drugged, coerced, or, as in one of the actual charges against Assange, asleep.
Obviously we now know the facts alleged, so speculation on what Assange might have done is moot, but I think that publishing and endorsing this reader's ill-considered and incorrect ideas is a disservice to your readers. Rape law is problematic enough without people spreading misconceptions about it.