17 December,2010 06:00 AM IST | | Aviva Dharmaraj
Are we ready to brace the fictional Swedish Law that WikiLeak's founder Julian Assange's lawyer is claiming his client is guilty of? We check with activists, lawyers and aam junta
On August 20, 2010, an arrest warrant was issued against journalist and founder of WikiLeaks Julian Assange for Swedish sex crimes. On December 7, Assange surrendered to the British police and has been in custody since.
As a judge deliberates over Assange's future and conspiracy theorists busy themselves with tracing the source of the alleged smear campaign, a little-known Swedish law has managed to wiggle its way into the global conscience.
What is the "surprise sex" law? Turns out, you might have to check with Assange's lawyer, Mark Stephens, who deemed it an offence only in Sweden and not the rest of the world.
The "surprise sex" law is said to be an bad translation for a Swedish slang tern for rape, and is not a law against having "unprotected sex with a woman".
The issue raises larger concerns around the debate of consensual sex versus nonconsensual sex, and whether the issue of a woman's consent being required at every stage of the sex act remains a 'valid' concern. "You cannot just condemn a woman for accusing a man of rape, even the woman is innocent until proven guilty," says social activist Nandini Sardesai.
Marketing manager Niharika Hanglem is not convinced that in a "place where laws are routinely abused" that the "surprise sex" law would work. "I don't know how introducing a clause will make a difference in a country where date rape and even marital rape are not recognised," she says.
Lawyer Mrunalini Deshmukh has more faith in the Indian judicial system, but fears that the introduction of a "surprise sex" law has a higher chance of being misused. "Very often, laws do not percolate down to the women who need it most. Special privileges often end up being only for the Haves: educated, well-to-do people, who have access," she says.
Gaurav Dutta, who works with a leading Information Technology Enabled Services company says, "Women have a moral right, even if it is not a legal right to say no." The only problem with that is the question of 'morals' or as the court would have us ask of rape victims, was she a woman of 'good' character!
The legal definition of rape in India
According to the Indian Penal Code, a man is said to have raped a woman when he has had sexual intercourse with her under any of the following conditions:
'u00a0Against her will
' Without her consent
' With her consent, when her consent has been obtained by putting her or any person in whom she is interested in, in fear of death or hurt.
' With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
' With her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication on the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature of the consequences of that of which she gives consent.
' With or without her consent, when she is under 16 years of age.
