Details of Sweden's case against WikiLeaks' Julian Assange

(The original version of this story incorrectly stated that Julian Assange is facing extradition to Sweden over charges of sexual assault. He is in fact wanted for questioning over allegations of sexual assault and no formal charges have been made.)

The media drama surrounding WikiLeaks founder Julian Assange has taken a much darker turn.

Following WikiLeak's release of more than 250,000 US diplomatic cables to media outlets around the world, he's detained in the UK awaiting deportation to Sweden on allegations he sexually assaulted two women there in August.

His lawyer is warning that Assange has distributed the digital equivalent of a "thermonuclear device" in case something happens to him, and his defenders insist that the allegations are fabricated in an attempt to get him to Sweden – perhaps, they hint, because the country has a strong extradition treaty with the US.

But lawyer Gemma Lindfield, representing the Swedish state, told a London court yesterday that politics and Assange's activism have nothing to do with the case. In her telling, it's a simple case of credible allegations of rape being made against Assange by two women, and that he should be brought to Sweden to stand trial.

The circumstances of the case – both women told Swedish police they had at least one consensual sexual encounter with Assange – has fueled plenty of online rumor and disinformation. A mention from the Swedish police and press reports that Assange failed to use a condom in one instance, and that in another his condom broke, have led to many false claims that having unprotected sex is illegal in Sweden, and that the country has a "broken condom law."

The reality is more prosaic.

As Ms. Lindfield tells it, the two women had withdrawn their consent to have sex with Assange either during or immediately before the act. As a result, he is charged with four violations of Sweden's criminal code on sex crimes. The first woman, "Miss A," whom Assange knew from Swedish activist circles, alleges that he coerced her to have sex. He's also charged with refusing to wear a condom, despite being asked to by "Miss A."

In the case of "Miss W," as she was described in court, he's also alleged to have "sexually exploited" the fact that she was asleep to have sex with her on Aug. 17. Article 3 of Sweden's criminal code on sex crimes indicates that she could not be reasonably expected to have given consent in that state. "A person who induces another person to engage in a sexual act by gross abuse of his or her dependent state shall be sentenced for sexual exploitation to imprisonment for at most two years," Article 3 says. "The same shall apply to a person who engages in a sexual act with another person by improperly taking advantage of the fact that the latter is helpless or in some other state of incapacitation."

It appears that Assange at some point had a consenting sexual relationship with each of the women. But in Sweden, the US, and many other countries, a person has a right to withdraw consent at any time.

The fact that the two women are acquaintances has raised eyebrows. Many Assange supporters say the women could have conspired together after they discovered he was carrying on a relationship with them simultaneously.

But Jill Filopovic, a lawyer who writes at the Feministe blog, says he may well have a case to answer. "Commentators are saying that Assange didn’t really rape anyone, and these are trumped-up charges of 'sex by surprise,' which basically means that Assange didn’t wear a condom and so days later the women he slept with are claiming rape. Totally unfair, right?" she writes. "I'm not sure it's that straight forward."

Ms. Filopovic, while admitting that she's speculating, writes that based on news reports, it sounds as if in one of the cases, sex was consented to on the condition of the use of a condom, and that when the condom broke, the woman asked Assange to stop. If that's what happened and he didn't heed her, she says, that would clearly be illegal.

"Withdrawal of consent should be grounds for a rape charge (and it is, in Sweden) – if you consent to having sex with someone and part of the way through you say to stop and the person you’re having sex with continues to have sex with you against your wishes, that’s rape."

She writes that in the US, successful prosecutions on these sorts of grounds are rare, though some states have "no means no" laws. "In most states, there’s a requirement of force in order to prove rape, rather than just demonstrating lack of consent. Consent is more often used as a defense to a rape charge, and it’s hard to convict someone of rape based solely on non-consent," she writes.

Whether Assange will face broader legal problems stemming from the release of the cables and other leaked US government documents remains unclear. Australian Foreign Minister Kevin Rudd (himself described as a "control freak" in one of the leaked State Department cables) said Assange is not legally responsible for leak of classified information.

In the US, press outlets have generally been shielded from prosecution for releasing information that the US government has sought to keep secret, so it's not currently clear what, if anything, Assange could be charged with.

"The Americans are responsible for that," Mr. Rudd told Reuters, saying a US failure to secure its own private correspondence, not the existence of WikiLeaks, was the problem. "The core responsibility, and therefore legal liability, goes to those individuals responsible for that initial unauthorized release."