Dear colleagues and friends,
I herewith would like to respond to your open letter, co-signed by numerous distinguished academics and expressing your genuine and legitimate concerns as to the manner in which my recent article “Demasking the Torture of Julian Assange” (bit.ly/2INkrxQ), as well as some of my oral statements, address the “rape” narrative imposed and disseminated by the Swedish prosecution in this case. I am grateful to you for bringing this to my attention, and I greatly value this opportunity to respond and, hopefully, clarify some of the resulting misunderstandings in the interest of our shared mission of ensuring protection and human dignity to all victims of violence and abuse.
Most notably, you take issue with my conclusion that the allegations made by the two concerned women (AA and SW) do not warrant the prosecution’s finding of “rape”.
First, while I believe it is important to counter widespread misperceptions falsely accusing Assange of using violence, I fully agree with you that the defining element of “rape” is lack of consent, and not the use of violence, and also that such consent can be conditional (e.g. on the use of a condom) and can be withdrawn at any moment. We have all come a long way in getting this definition of “rape” accepted in international law, and nothing in my article intends to question this important achievement in any way, neither generally nor in the case of Assange. I also would like to point out that sexual allegations not amounting to “rape” may still amount to serious sexual offences, such as sexual assault. My article discusses the deliberate misuse of the term “rape” by the Swedish prosecution in the case of Assange, against the stated intent and account of both women involved.
Second, as far as SW is concerned, her police report states that, after Assange woke her up trying to initiate intercourse, the two had a conversation in which she asked Assange whether he was wearing a condom and he replied he was not. She then said he “would better not have HIV” and he replied that he did not, after which, she “let him continue” (lät honom fortsätta) to have unprotected intercourse. There are no indications of coercive or incapacitating circumstances suggesting lack of consent. Accordingly, Chief Prosecutor for Stockholm Eva Finne stated: “I do not think there is reason to suspect that he has committed rape” and closed the case on 25 August 2010 concluding that the “conduct alleged by SW disclosed no crime at all”. Having examined all the evidence before me, I agree with her. My position, like Finne’s, is not that SW’s account is not credible, but rather that the conduct alleged does not constitute “rape”.
Third, as far as AA is concerned, even the Swedish prosecution never suggested that the conduct alleged by her could amount to “rape”. In a Twitter-message of 22 April 2013, AA herself publicly denied having been raped (jag har inte blivit våldtagen). AA also stated in a tabloid interview that Assange is not violent and that neither she nor SW felt afraid of him. While I agree with the prosecution that AA’s allegations, if proven to be true, could amount to sexual assault other than rape, the fact that she submitted as evidence a condom, supposedly worn and torn during intercourse with Assange, which carried no DNA of either Assange or AA, seriously undermines her credibility.
Fourth, according to their own accounts, neither AA nor SW ever alleged to have been raped, and neither of them intended to report a crime. Rather, evidence shows that AA took SW to a police station, so SW could enquire whether she could force Assange to take an HIV-test. There, they were questioned together by an investigating officer who knew AA personally and ran on the same political party ticket as AA in the general elections three weeks later. When superior investigators insisted on registering SW’s enquiry as a report of “rape” and to immediately issue an arrest warrant against Assange, SW reportedly refused to sign her statement and became so emotionally distraught that the questioning had to be suspended. While at the police station, SW even texted that she “did not want to put any charges on Julian Assange” but that “the police were keen on getting their hands on him” (14:26); and that she was “chocked (sic shocked) when they arrested him” because she “only wanted him to take a test” (17:06). Once Chief Prosecutor Finné had intervened and closed the case, it reportedly was again the police (not SW) who “revised” her statement lodged in the police system to better fit the crime of “rape” before it was resubmitted by a third Social Democrat politician to a different prosecutor who was prepared to re-open the case.
In conclusion, I fully agree with your interpretation of the law, and that any victim courageous enough to report sexual abuse must be protected, supported and taken seriously. As far as the case of Assange is concerned, however, I stand by my conclusion that the available evidence does not warrant the prosecution’s finding of “rape”.
Beyond questions of law, you also take issue with my tone, which you deem to be “insensitive to victims”. Please let me assure you that, in two decades of work with victims of war and violence, sometimes under very difficult and dangerous circumstances, I have seen and suffered too much myself to be intellectually or emotionally capable of “mocking” potential victims. The countless testimonies I have collected in prisons, camps and villages throughout the world have marked me deeply, and some of them keep haunting me to this day. Whatever misunderstandings may have resulted from my article, they certainly do not warrant accusing me of “insensitivity to victims” or even a “profound lack of understanding that does a disservice to the mandate”.
Though the tone of my critique may be harsh, it does not aim at the women, but at the gross arbitrariness of the “rape” narrative, which has been wrongly imposed by zealous officials not only on Assange, but also on the two concerned women themselves, and on the general public. The State not only ignored the women’s own experience and interpretation of events, but also consistently declined to take the necessary measures which would have allowed advancing this matter beyond the stage of preliminary investigation, where it has been so conveniently left to simmer for almost a decade. As is well documented, both the two women and Assange fully cooperated with the police and the prosecution from the outset, he was questioned both in Sweden (2010) and in London (2016), and the only reason he refused to be extradited to Sweden was that Sweden declined to guarantee against further extradition to the United States, where I am convinced he would be exposed to serious violations of his human rights.
More generally, I fully share your concerns that sexual allegations against powerful men are often dismissed as attention-seeking or part of a conspiracy to bring them down. I would point out, however, that Assange is not a powerful man shielded by impunity, but an isolated and frail political prisoner persecuted for exposing war crimes and corruption. So, while we all work to safeguard the rights of victims of sexual abuse, let us not blindly dismiss well-founded doubts as to the veracity and / or appropriateness of rape allegations, where there are indications of duress or documented third party interests influencing the process. This holds particularly true in a highly politicized case which, in all involved jurisdictions, is plagued with a pervasive mix of grave and persistent due process violations, concerted public mobbing, humiliation and intimidation, and counterfactual accusations of hacking, spying and even causing death and injury.
All of this being said, I salute your strong commitment to human rights, justice, and truth. Sometimes, fighting the good fight of human rights requires strong formulations. Sometimes, doing justice means we cannot shy away from perceived taboos. And sometimes, speaking the truth involves the risk of being misinterpreted or even unjustly attacked. No one can always find “bullet-proof” wording, which cannot be criticized, taken out of context, or simply be misunderstood in good faith. I therefore sincerely apologize to anyone who has been inadvertently hurt by my words, and I hope you will accept my assurance that my mandate and I will always stand by your side.
Anyone acquainted with my work knows that I have consistently integrated both a gender perspective and a victim-centered approach throughout the activities of my mandate. This includes, most recently, my upcoming thematic report to the UN General Assembly, which examines domestic violence from the perspective of the prohibition of torture and ill-treatment. Thus, while I can personally attest to the fact that not all victims of abuse are women, the last thing I could reasonably be accused of is a lack of “ability and willingness to deal with gender-based crimes”.
I would like to conclude by thanking you, once more, for this important initiative and for giving me the opportunity to respond. I sincerely hope this resolves any misunderstandings that may have arisen in connection with my recent article and clarifies the position of my mandate as to the relevant legal and policy issues. I also sincerely hope these misunderstandings will not divert attention from the extremely important issues I have raised in the course of my interventions on behalf of Mr. Assange, which point to a sustained and concerted campaign of state-sponsored mobbing, vilification and judicial persecution designed to silence whistleblowers, journalists and other human rights defenders daring to expose governmental crimes and corruption.
Going forward, as in the past, I stand ready to constructively engage with any interested stakeholders on these and other questions with a view to jointly advancing our shared human rights agenda for the benefit of all.
Prof. Nils Melzer
UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment