WikiLeaks founder Julian Assange has been accused of "sex by surprise." Is that against the law in the United…

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Dec. 6 2010 6:20 PM

Is "Sex by Surprise" Illegal in the United States?

How would the alleged Swedish sex crimes of WikiLeaks founder Julian Assange fare in an American court?

Julian Assange. Click image to expand.
Julian Assange

Julian Assange's lawyer told AOL News on Thursday that the WikiLeaks founder has been charged with "sex by surprise" in Sweden. Though the lawyer says he doesn't know what "sex by surprise" means, the Swedish prosecution office announced that they are charging Assange with "rape, sexual molestation and unlawful coercion." These charges allegedly stem from consensual sexual encounters with two separate women that became nonconsensual at some point during the act. (Update, Dec. 7, 2010: Julian Assange was arrested in Britain by an extradition unit on Swedish charges of unlawful coercion, sexual molestation, and rape.) If this had happened in the United States, could Assange have been charged with a crime?

Possibly. The traditional common-law rule is that there needs to be both lack of consent and the threat of physical force in order for a sexual violation to constitute rape. By that standard, Assange might be in the clear if his alleged activities took place in the United States (and if no violence was involved). But in some states, lack of consent can by itself serve as the basis for a rape charge. The exact circumstances under which a woman might revoke her consent varies: In Illinois, for example, it is considered rape if a woman says "no" at any time during sex and her partner does not stop. Other states are vague on the question of whether someone can change her mind after penetration has occurred. And some courts have been very clear that consent is locked in once intercourse has begun.

There used to be even more requirements for a woman to bring rape charges. Until the legal reform movement that began in the 1970s, a prosecutor would take on a case only if the woman could corroborate that the rape had occurred—her own testimony was insufficient without a third-party witness or evidence of serious injury. That requirement has been dropped from most state rape laws. Feminist reformers also tried to do away with the idea that rape must include at least the threat of physical force, but with less success. The so-called "resistance requirement"—as in, the woman must try to resist the attack—has remained on the books in most states, albeit in a watered-down form. For example, a woman no longer has to prove that she fought back to the best of her ability—she only needs to prove that she did enough to let her partner know she did not want sex.

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Explainer thanks University of Colorado law professor Aya Gruber.

Jessica Grose is a frequent Slate contributor and the author of the novel Sad Desk Salad. Follow her on Twitter.