Apologies to two groups before I continue:
1. Some of you will consider this Too Much Sharing. I am a private person by nature; I don't think my blog has ever before had anything about my sex life.
2. Some of you will think I am making light of rape when I criticize the way it is handled by a subset of people who look to the law to solve all problems. Saying I'm making light of rape here would be like saying I make light of murder when I criticize the death penalty.
When I was in college, a girlfriend woke me with a blowjob. It was initially more odd than erotic, a bit disorienting, but when I realized what was happening, to paraphrase the transcript of one charge against Assange, I let her continue. By the standards of those who say consent must be obtained before each act of sex, I was raped.
A few years later, I got drunk at a party and had sex with a woman who was hitting on me. I wouldn't have let her have her way with me if I hadn't been too drunk to consider the consequences.
The Center for Disease Control's The National Intimate Partner and Sexual Violence Survey (NISVS) claims,
Nearly 1 in 5 women (18.3%) and 1 in 71 men (1.4%) in the United States have been raped at some time in their lives, including completed forced penetration, attempted forced penetration, or alcohol/drug facilitated completed penetration.Does "alcohol/drug faciliated completed penetration" mean that people who are high cannot consent? Or is it only referring to people who are unable to consent because they're unconscious or unable to indicate consent in a meaningful way?
And is it useful to call an attempted rape a rape? Is an attempted murder a murder? This isn't to say that attempting rape or murder aren't also horrible, but justice systems separate uncompleted murder from murder when compiling murder statistics. For most crimes, degree and intent matter, as categories like manslaughter, battery, and assault indicate.
Perhaps the greatest flaw in the CDC survey is that it excludes prisons. From n+1: Raise the Crime Rate: "prison rape accounted for the majority of all rapes committed in the US in 2008, likely making the United States the first country in the history of the world to count more rapes for men than for women."
But when you read the report with its limitations in mind, it's fascinating. For example:
More than 1 in 3 women (35.6%) and more than 1 in 4 men (28.5%) in the United States have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime.Conservatives argue that the CDC's methodology is seriously flawed. See Researching the "Rape Culture" of America by Dr. Christina Hoff Sommers and Re: Sexual Assault and College - By Robert VerBruggen. They prefer the Bureau of Justice Statistics for Rape And Sexual Assault.
Whatever you think of their politics, remember that conservatives are not arguing for lighter standards or punishment for rape—VerBruggen thinks it should be a capital offense. They're only arguing for accuracy.
Mind you, the inaccuracy is very useful for deflecting the argument from "Should Assange risk being deported to the US?" to "Is Assange a rapist?"
ETA: What Counts As Rape in the CDC's Survey? - Hit & Run : Reason.com: "The relevant question asked: ""When you were drunk, high, drugged, or passed out and unable to consent, how many people ever" "had vaginal sex with you," "made you receive anal sex," or "made you perform oral sex." Eight percent of women reported at least one such incident. Some of these cases—e.g., when a man has sex with a woman who is unconscious—clearly do amount to rape, but others are much more ambiguous. People frequently have sex after drinking or consuming other drugs. Does that automatically mean they are "unable to consent," even when they seem willing? Only sometimes? How do you know when? Can the determination be made at the time of the encounter, or only in restrospect?"
ETA 2: A useful reminder of what happened from Britain’s Socialist Workers Party and Socialist Party back extradition of Assange:
The police statements made by the women make no reference to a stated lack of consent or threat of force and refer to a split condom, rather than a failure to use one. The testimony regarding Miss W (plaintiff two) being asleep is contradicted by her own tweets—referring as they do to being only “half-asleep.” Plaintiff one had thrown a party for Assange after the alleged incident of sexual assault against her and invited Assange to stay in her room afterwards.
The women had initially gone to the police after conferring with one another, but then only to insist that Assange take an HIV test, which, in an extraordinary breach of standard procedure, the police did. The women did not allege rape.
That is why the initial investigation of August 20, 2010 was dropped and an arrest warrant against Assange cancelled the next day by one of Stockholm’s chief prosecutors, Eva Finne, who said in a statement to the press: “I don’t think there is reason to suspect that he has committed rape.”
The reissue of the warrant took place only after the intervention of Swedish Chief Prosecutor Marianne Ny on September 1, 2010.
Under normal circumstances, such flimsy and unsubstantiated allegations would not be considered the basis for criminal charges, especially after the two women were allowed to confer and give evidence together by the police. But these are not normal circumstances.