WikiLeaks founder’s counsel claims in high court that Swedish judges were misled about sexual assault and rape allegations
The European arrest warrant issued for the WikiLeaks founder, Julian Assange, is invalid, the high court was told on Tuesday, because of significant discrepancies between its allegations of sexual assault and rape and the testimonies of two women he allegedly had sex with.
The warrant details four allegations of unlawful coercion, sexual molestation and rape, relating to encounters between Assange and two Swedish women while on a trip to Stockholm last August.
But Ben Emmerson QC, for Assange, said the warrant was a misinterpretation of the evidence and it was “surprising and disturbing” that Swedish district judges who requested Assange’s extradition had been misled.
Emmerson was opening the latest step in the Australian’s attempt to avoid being sent to Sweden for questioning and possible charges which Assange has said he fears could pave the way for him to be further extradited to the US. There he could face charges relating to the leak of hundreds of thousands of classified government documents through WikiLeaks. An earlier appeal failed and Assange has appointed a new legal team which is taking a more conciliatory approach.
Emmerson told Lord Justice Thomas and Mr Justice Ousely that there was no evidence about there being a lack of consent in the encounters as appeared to be suggested in the wording of the arrest warrant. He said three of the allegations would not amount to criminal offences under English law.
Emmerson said: “The senior district judge found that those factual allegations would establish dual criminality on the basis that lack of consent, and lack of reasonable belief in consent, may properly be inferred from the conduct described, particularly the references to ‘violence’ and a ‘design’ to ‘violate sexual integrity’. However, that description of conduct is not accurate. The arrest warrant misstates the conduct and is, by that reason alone, an invalid warrant.”
Emmerson examined the witness testimonies of the encounters in graphic detail.
Referring to evidence of an encounter on the night of 13 August given by a woman known as AA who was hosting Assange at her apartment, Emmerson said: “The appellant’s physical advances were initially welcomed but then it felt awkward since he was ‘rough and impatient’… they lay down in bed. AA was lying on her back and Assange was on top of her … AA felt that Assange wanted to insert his penis into her vagina directly, which she did not want since he was not wearing a condom … she did not articulate this. Instead she therefore tried to turn her hips and squeeze her legs together in order to avoid a penetration … AA tried several times to reach for a condom which Assange had stopped her from doing by holding her arms and bending her legs open and try to penetrate her with his penis without using a condom. AA says that she felt about to cry since she was held down and could not reach a condom and felt this could end badly.”
But, Emmerson said, crucially there was no lack of consent sufficient for the unlawful coercion allegation, because “after a while Assange asked what AA was doing and why she was squeezing her legs together. AA told him that she wanted him to put a condom on before he entered her. Assange let go of AA’s arms and put on a condom which AA found.”
Emmerson told the court the case did not hinge on whether Assange accepted this version of events and others relating to other incidents because there were no charges against him, but whether the arrest warrant in connection with them was valid on “strict and narrow” legal grounds.
As if to illustrate the change of strategy by Assange’s new legal team, Emmerson said: “Nothing I say should be taken as denigrating the complainant, the genuineness of their feelings of regret, to trivialise their experience or to challenge whether they felt Assange’s conduct was disrespectful, discourteous, disturbing or even pushing at the boundaries of what they felt comfortable with.”
Assange was in court with supporters including Vaughan Smith, the founder of the Frontline Club who is hosting his house arrest at Ellingham Hall in Norfolk, and John Pilger, the veteran investigative journalist.
Assange arrived at about 9.15am, saying nothing to questions as he moved at a snail’s pace through a tight scrum of photographers. He was asked if he was looking forward to his latest day in court and whether he would take the case to the supreme court if he lost over the next two days. He said nothing.
By the court railings, small groups of protesters gathered, including one carrying a banner saying: “Free Assange! Free Manning! End the wars.”
This article was written by Robert Booth and Published by guardian.co.uk on July 12, 2011.
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