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Nordic Legal Scholars: Assange Conviction Unlikely

From Helsingin Sanomat. Overkill to be sure. But still and all.

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HELSINKI (Rixstep) — Criminal justice professor Per-Ole Träskman (University of Lund Sweden) and doctoral researcher Sakari Melander (University of Helsinki) spoke with Helsingin Sanomat about the Assange case now that the police protocols are available. Conducted by Petri Sajari.

Sajari: Are the women's accounts in the preliminary investigation credible?

Träskman: In my view, accounts by both women are truthful. The investigation material shows that they have related the events to their female friends in a very similar manner as during the investigation.

Melander: I find the story of the suspected rape (Enköping case) more credible. She was considerably distraught and told others about it. Credibility is not in my view lessened by the fact that they agreed together to go to the police.

Sajari: Did the women voluntarily agree to sexual intercourse?

Träskman: Yes. Neither woman has denied that intercourse began voluntarily. Both women agreed to intercourse readily in the beginning, but later with some doubt. There is no evidence of violence or a threat thereof. They started regretting the intercourse only afterwards.

Melander: It seems that they have agreed to intercourse voluntarily to begin with. For sure, there is some unclarity and contradiction as to what had been agreed to, when it was agreed, and how intercourse was to be performed.

Sajari: Intercourse with a sleeping party meets the requirements for rape according to Swedish law. Is Assange guilty of rape?

Träskman: There is no proof that the woman was actually asleep. Contradicting this is that immediately after having been penetrated by Assange, she asks 'are you wearing something?' No one presents this sort of question while asleep. After this, she says that she decided not to do anything so that the intercourse would be over quickly. She therefore gave her consent.

Melander: There is no other proof of sleep apart from the woman's mention of waking up to Assange penetrating her. Earlier that night they'd had sex, which does not necessarily mean that consent was valid in the morning as well, especially if she was asleep. This is word against word.

Sajari: How do you assess the suspected forced intercourse without a condom and the suspicion of it being broken on purpose?

Träskman: Assange denies breaking the condom. Instead, the woman only suspects that he may have done so. She says she had checked twice that Assange was wearing a condom. Based on the technical investigaton by the police, it is possible that the condom was broken afterwards. There is however no proof.

Melander: The technical investigation only refers to the possibility that the condom is broken with a sharp object, but it is possible that it had broken some other way or had been broken after the intercourse. It is uncontested that a condom broke, but there are no traces of Assange's DNA on it. In a way, I understand the prosecutor's logic behind the suspected coercion. In practice however, coercion requires violence or the threat thereof. There is nothing in the pre-investigative material suggesting violence or a threat. Additionally, I am not aware of a single case in Finland or Sweden where the possible, purposeful breaking of a condom would have been treated as coercion.

Sajari: Rape and coercion call for intent. Is there any evidence of that?

Träskman: In the case of the suspected rape, intent would require that Assange had understood that the woman, possibly asleep, would not have agreed to intercourse and then to have treated that possibility with indifference. In addition, he should have used violence or the threat of it. There is just her story that she was asleep. In the other case, there is no evidence that Assange would have broken the condom on purpose. If no evidence of intent can be found, it is not a crime.

Melander: Intent must be evaluated from the suspect's point of view, and Assange hasn't said very much yet. He's convinced that a condom was used in the first case. At this stage there is no evidence that he would have broken the condom on purpose and I would say it is extremely difficult to get that sort of evidence. In the case of the suspected rape, a view cannot be given based on the investigation material. Intent in this case also means he needs to have known that she was asleep.

Sajari: If a charge is brought against Assange, what are the chances of it being successful in court?

Träskman: Based on the evidence available, it is unlikely Assange would be convicted of the suspected crimes. Also, the prosecutor has not yet raised charges. That means the prosecutor doesn't think there's sufficient reason to raise a charge at this stage. That's why she wants Assange to be heard in Sweden relying on a European Arrest Warrant.

Melander: The success of a possible charge in court is not likely because reasonable doubt remains about Assange's guilt. If there is unclarity about guilt, or there is no full certainty of it, the case must be resolved in favour of the accused.

Helsingin Sanomat ('Helsinki News') is a leading Scandinavian news organisation with the biggest print circulation in the area. #FF @HelsinkiObs.