Assange v Swedish Prosecution Authority

If a person consents to sex only on condition that a condom is used, and the other person deliberately does not use one, there is no consent.

Citation
[2011] EWHC 2849 (Admin)
Court
Divisional Court
Year
2011
Subject
Criminal Law
Topic
Sexual offences and consent

Facts

Julian Assange, the founder of WikiLeaks, was the subject of a European arrest warrant issued by Sweden, which sought his extradition to face allegations of sexual offences against two women in 2010. One of the allegations was that he had had sexual intercourse with a woman without a condom, when she had made it clear that she would only have sex if he used one. The question for the English courts was whether the conduct alleged would amount to an offence in England, which was required for extradition.

Legal principle

The Divisional Court held that the conduct would amount to rape or sexual assault in English law. Sir John Thomas P and Ouseley J said that if a complainant made clear that she would only consent to sexual intercourse if the defendant used a condom, and he deliberately did not use one, then there would be no consent under section 74 of the Sexual Offences Act 2003, because she had not agreed to sex without a condom. Mr Assange's appeal to the Supreme Court on a different issue failed, and he later took refuge in the Ecuadorian embassy in London.

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