SUNDAY, DECEMBER 12, 2010


KLMNO


K EZ BD


You couldn’t get away in an emergency in a vintage 1977 Rolls-Royce.” —Alex Bomberg, a former aide to Britain’s royal family, after Prince Charles’s car was attacked by student protesters Thursday


What the Assange case says about rape in America


BY JESSICA VALENTI L


et’s get this out of the way: Sweden does not have a “bro- ken condom” law. WikiLeaks founder JulianAssangewas not arrested because his contracep-


tion failedmid-coitus. Nor is he charged with “sex by surprise.” The details of Assange’s arrest last


week are being sorted out in a bizarre game of Internet telephone in which misinformation reigns. Facts about the alleged assaults are hard to come by and are confused by contradicting media reports, translation issues, polit- ical bias and cultural disdain for rape victims. Everyone fromFoxNews’sGlennBeck


to feminist writer NaomiWolf is getting in swipes. Beck told viewers that As- sange is being investigated for “sex by surprise” (again, not a real law) because of a “radical” feminist bent on revenge. Wolf wrote a snarking letter to Interpol in the Huffington Post, arguing that the accusers are using feminismto “assuage . . . personal injured feelings.” And AOL News writer Dana Kennedy dismissed the incidents as a simple “condom malfunction.” Now, we don’t know if Assange is guilty or innocent — but we do know


that the accusations against him have been badly reported, misconstrued and generally pooh-poohed. In the sameway that Assange’s document dump held a mirror to U.S. diplomacy, the accusa- tions against him and the subsequent fallout reflect our country’s overly nar- row understanding of sexual assault, and just how far we are from Sweden’s legal standard. The allegations against Assange are


rape, sexual molestation and unlawful coercion. He’s accused of pinning one woman’s arms and using his body weight to hold her down during one alleged assault, and of raping a woman while she was sleeping. In both cases, according to the allegations, Assange did not use a condom.But the controver- sy seems to center on the fact that both encounters started off consensually.One of his accusers was quoted by the Guardian newspaper in August as say- ing, “What started out as voluntary sex subsequently developed into an assault.” Whether consent was withdrawn be- cause of the lack of a condomis unclear, but also beside the point. In Sweden, it’s a crime to continue to have sex after your partner withdraws consent. In the United States, withdrawing


consent is not so clear-cut. In Septem- ber, for example, prosecutors in North Carolina dropped rape and sexual bat-


B3


tery charges against a high school football player because sexual contact with the alleged victimbegan consensu- ally. The dismissal documents cited a 1979 North Carolina Supreme Court ruling, State v. Way, which says that if intercourse starts consensually, “no rape has occurred though the victim later withdraws consent during the same act of intercourse.” So if you initially agree to have sex


and later change your mind for whatev- er reason — it hurts, your partner has become violent, or you’re simply no longer in the mood — your partner can continue despite your protestations, and it won’t be considered rape. It defies common sense. Who besides a rapist would continue to have sex with an unwilling partner? It was only two years ago that Mary-


land overturned an archaic court ruling stating that if a woman withdrew con- sent, any sex that followed wasn’t rape. In 2007, the Maryland Court of Special Appeals justified this old ruling, ex- plaining that anything after the initial “deflowering” of a woman couldn’t be rape because “the damage was done” to her virginity and she could never be “reflowered.” In fact, the injured party, according to this ruling, wasn’t even the assaulted woman, but the “responsible male’s interest” — that of her father or husband. It took until 2008 for the state’s highest court to change this. “The United States has relatively


regressive rape laws; in most states, there’s a requirement of force in order to prove rape, rather than just demonstrat- ing lack of consent,” feminist lawyer Jill Filipovic wrote last week. “We’re deeply wedded to the notion of rape as forcible . . . a consent-based framework for eval- uating sexual assault is not yet widely accepted.” The fact that U.S. law is so ill-


equipped to actually protect women in realistic scenarios is a national embar- rassment — not to mention a huge


hurdle in obtaining justice for sexual assault victims. Swedish rape laws don’t ban “sex by surprise” (a term used by Assange’s lawyer as a crass joke), but they do go much further than U.S. laws do, and we should look to them as a potentialmodel for our own legislation. In fact, some activists and legal


experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn’t give it. “I amproud to live in a countrywhere


rape and assault are considered to be serious crimes,” Swedish feminist Jo- hanna Palmström told me. But “even if we have good laws, it still happens too often that people who report rape are questioned and slandered—we see that nowwith thewomenwho have reported Julian Assange.” Indeed, better laws do not always


mean justice for victims. Only 20 per- cent of the rape cases reported in Sweden in 2008 resulted in a court trial. A 2010 report by Amnesty International


way Americans think about sex, consent and rape, so that when women come forward — whether they’re accusing a celebrity, a sports star or a neighbor — our immediate reaction isn’t to miscon- strue or speculate about their motives, but to listen. None of this is to say that the


accusations against Assange are true — we have no idea.And there is little doubt that the timing of the legal proceedings is politicallymotivated:Assange’s accus- ers came forward in August (the same month they allege being attacked), but it’s only now that authorities are vigor- ously pursuing the case. Assange clearly believes that the


world has a lot to learn from his work with WikiLeaks. But we can also learn from his dismissive attitude toward these allegations. “They called me the James Bond of


journalism,” Assange told the New York Times in October, discussing the warm welcome he got in Sweden. “It got me a lot of fans, and some of them ended up causingme a bit of trouble.” That “bit of trouble,” as he put it, and


The fact that U.S. law is so ill-equipped to actually protect women in realistic scenarios is a national embarrassment.


notes that acquaintance rape in Sweden is on the rise and that victim-blaming is just as alive there as in the United States: “Young and intoxicated women in particular had problems fulfilling the stereotypical role of the ‘innocent vic- tim.’ As a result, neither rapes within intimate relationships nor ‘date rapes’ involving teenage girls generally led to legal action.” If anything, this means we can’t stop


at changing legislation. For true justice, there needs to be a cultural shift in the


the way the Swedish authorities are pursuing the allegations, is a key lesson. Whatever Assange is revealing about this country’s diplomacy, his high-pro- file case has also shown how far the United States is from Sweden — and fromjustice — when it comes to victims of sexual assault.


Jessica Valenti is the editor of “Yes Means Yes: Visions of Female Sexual Power and a World Without Rape” and the founder of Feministing.com.


Radical jihadism is not a mental disorder T


BY STEPHEN N. XENAKIS


he case ofOmar Khadrwas the first war crimes prosecution of the Obama administration, and it could set a dangerous precedent for how mental


health professionals are used in terror- ismtrials. I attended the proceedings in October


— the first American tribunal for a child soldier since World War II — because I had been working with Khadr’s defense team for two years. I am a child and adolescent psychiatrist and a retired Army brigadier general; the defense had asked me to evaluate Khadr’s physical and mental health, as well as advise on military procedure. As I listenedtotheprosecution’sexpert


testimony depicting Khadr’s state of mind, I was reminded of psychiatry and the politicization ofmental health under the Soviet regime. Those were the years whenpoliticaldissidentswere accusedof insanity simply because they had the audacity to challenge the Soviet system. The medical profession, especially psy- chiatry, was a political instrument of control and repression. Prosecutors fromthemilitary and the


Justice Department built their case against Khadr largely on testimony from their expertwitness, forensicpsychiatrist MichaelWelner, whom they called upon to offer a medical opinion on Khadr’s mental condition.Welner, a physician in privatepractice inNewYorkandaprofes- sor atNewYorkUniversity, is developing the Depravity Scale, a tool that is intend- ed to help juries judge the heinous or evil nature of a crime. Painting a broad picture of the defen-


dant, prosecutors portrayed Khadr as an unrepentant and dangerouswarriorwho threw a grenade that killed a special forcesmedicduring a firefight inAfghan- istan in 2002. Khadr was 15 years old at the time.Armymedics saved his life after he was shot in the back twice and the compoundwherehe livedwasbombedto rubble. During the trial, according tomynotes


and observations, Welner depicted Khadr as a continuing risk to society. “In my professional opinion, Omar Khadr is at a high risk of dangerousness as a radical jihadist,” Welner said. Based on hundreds of hours of reviewing records and interviewing witnesses, and 7 to 8 hours of examining the prisoner, the doctor said he concluded thatKhadrwas a radical jihadist who was at risk of inspiring others to violent acts in the future. But radical jihadism is not a clinical


condition, anddiagnosing it isnotwithin the domain of psychiatric experts. Radi- cal jihadismis an ideology—and can be embraced by the psychiatrically sane and insane alike. Beyond being simply unscientific,


however, the testimonyhadanother trou- bling aspect. Welner relied on the re-


HANDOUT VIA REUTERS OmarKhadr during a February 2003 interviewat the Guantanamo Bay prison, when he was 16.


search of a particularly egregious source: Danish educational psychologist Nicolai Sennels. Welner noted that there are few aca-


demic or medical sources on the “future dangerousness” of “radical jihadists who have been apprehended and detained.” Sennels, he said, is an exception.Welner described the lengthy conversation the two men had held and said his perspec- tive was informed in part by Sennels’s research on Muslim youth whom he treated as a prison psychologist. But


Welner wasn’t familiar with all of Sen- nels’s written work. As the defense ex- plained during cross-examination, Sen- nels is also known for inflammatory views on Islam, having claimed that “massive inbreeding within the Muslim culture during the last 1,400 years may have done catastrophic damage to their gene pool.” Sennels has described the Koran as “a criminal book that forces people to do criminal things.” Welner specifically repudiated these views in court.


I


n making its case against Khadr, the government reliedonWelner’sprofes- sional status as a forensic psychiatrist


to put a scientific sheen on what were essentially lay opinions. The prosecutors depictedKhadr as a probably violent and radical charismatic leader.He had plead- ed guilty to murder (albeit in a firefight when he was 15), was a devout Muslim andwaswell-liked by both detainees and guards, so he had to be dangerous. Through testimony disguised as expert psychiatric opinion, the prosecution por-


trayed Khadr as having “marinated” in jihadi thinking before and during his long internment at Guantanamo, and described himas a “rock star”who, as the son of a close lieutenant of Osama bin Laden’s, enjoyed the adulation of other detainees. How should Khadr be treated, then,


according to the prosecution? He was a candidateforwhat theycalled“deradical- ization,”much like Saudi Arabia has car- ried out with other detainees who have returned from Guantanamo. Unfortu- nately, they noted, such programs are not available in theUnited States or Canada. Khadr’s attorneys, who were con-


cerned that the trial could degenerate intoabattlebetweenexperts, chosenot to call the defense mental health experts who know himwell. Thatmeans I didn’t get totakethestand. If Ihad, Iwouldhave said—without violatingthe confidential- ity of my work for more than two years with Khadr, and after spending more than 200 clinical hours with him — that he does not need “deradicalization” and does not show any proclivity toward committing terrorist acts.What he needs and deserves is physical and mental health treatment. He suffered extensive wounds, had multiple surgeries, is blind in his left eye and lives with the afteref- fects of his injuries and interrogations. The defense opted instead to allow


Khadr to make the statement that he wanted tomake, believing that hiswords would bemore powerful than anything a mental health expert could say. Khadr apologizedtothemedic’swidowandgave a moving repudiation of hate and vio- lence. In the end, considerations about


Khadr’s mental health might not have mattered to the jury as they determined his sentence: 40 years in prison, though, per a plea bargain, he will serve nomore than eight additional years at Guantana- mo or in a Canadian prison. Themilitary panel also heard testimo-


ny from the medic’s widow. She read a letter fromher 11-year-old daughter, only four years younger thanKhadrwaswhen he threw the grenade, condemning him as a murderer. Her voice may have had more of an impact on Khadr’s fate than Welner’s testimony. But a doctor’s words, and the pseudo-


scienceof radicalism, couldhave apartic- ularly insidious effect. In totalitarian re- gimes, the government often exploited psychiatrists to label citizens as “enemies of the state” without substantive clinical data. I don’t believe that happened here. Radical jihadism is a serious threat, and we must use every resource available to combat it.Butwe should be cautious that ifwemisuse the science ofmental health in the process, we are slipping closer to those totalitarian states. And that could be a greater threat to our national securi- ty thanOmarKhadr everwas.


StephenN. Xenakis is a child and adolescent psychiatrist and a retired Army brigadier general.


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68  |  Page 69  |  Page 70  |  Page 71  |  Page 72  |  Page 73  |  Page 74  |  Page 75  |  Page 76  |  Page 77  |  Page 78  |  Page 79  |  Page 80  |  Page 81  |  Page 82  |  Page 83  |  Page 84  |  Page 85  |  Page 86  |  Page 87  |  Page 88  |  Page 89  |  Page 90  |  Page 91  |  Page 92  |  Page 93  |  Page 94  |  Page 95  |  Page 96  |  Page 97  |  Page 98  |  Page 99  |  Page 100  |  Page 101  |  Page 102  |  Page 103  |  Page 104  |  Page 105  |  Page 106  |  Page 107  |  Page 108  |  Page 109  |  Page 110  |  Page 111  |  Page 112  |  Page 113  |  Page 114  |  Page 115  |  Page 116  |  Page 117  |  Page 118  |  Page 119  |  Page 120  |  Page 121  |  Page 122  |  Page 123  |  Page 124  |  Page 125  |  Page 126  |  Page 127  |  Page 128  |  Page 129  |  Page 130  |  Page 131  |  Page 132  |  Page 133  |  Page 134  |  Page 135  |  Page 136  |  Page 137  |  Page 138  |  Page 139  |  Page 140  |  Page 141  |  Page 142  |  Page 143  |  Page 144  |  Page 145  |  Page 146  |  Page 147  |  Page 148  |  Page 149  |  Page 150  |  Page 151  |  Page 152  |  Page 153  |  Page 154  |  Page 155  |  Page 156  |  Page 157  |  Page 158  |  Page 159  |  Page 160  |  Page 161  |  Page 162  |  Page 163  |  Page 164  |  Page 165  |  Page 166  |  Page 167  |  Page 168  |  Page 169  |  Page 170  |  Page 171  |  Page 172  |  Page 173  |  Page 174  |  Page 175  |  Page 176