Well, well, well, Mr Assange!

How does it feel to have your own embarrassing and confidential information leaked to the media and publicized to the world?

On the sound ethical principle that two wrongs doesn’t make a right, The Guardian acquiring and publishing the leaked police report relating to Assange’s rape charges in Sweden is no less unethical because Assange is a smug foe of confidentiality. Nevertheless, it is hard to recall an instance when seeing the tables turned on someone was so satisfying. Ethics foul: Whoever leaked the records, and The Guardian for printing them. But thanks anyway.

It is satisfying for reasons other than delicious irony. Dana Kennedy at AOL News reported the false story that Assange’s prosecution was based on a broken condom and a “sex by surprise” theory, and other reporters and columnists sympathetic to the Wikileaks mission pumped it up into a full-fledged, publicly accepted myth that cast Assange as the victim of a politically-driven vendetta. If what the police reports say is true, Assange is a rapist. Ethics foul: Kennedy, AOL, and everyone who was happy to mimic her characterization of what Assange had done, including Glenn Beck and feminist Naomi Wolf.  Lazy, sloppy, biased journalism.

But this rapist has defenders. It appears that in both cases, there was some level of consent to sex by the victims, but Assange went beyond what they had agreed to, and did not stop when consent was withdrawn. In America, these situations are often not considered rape, although they should be. As recently as September, a North Carolina rape charge was withdrawn against a high school football player because his victim had initially consented to sexual contact but withdrew her consent to sex when the romantic encounter began to proceed too quickly and aggressively. The dismissal  relied on a retrograde 1979 North Carolina Supreme Court ruling, State v. Way, which held that if intercourse starts consensually, “no rape has occurred though the victim later withdraws consent during the same act of intercourse.” Yes, many states and much of the American public—especially the male public—still hold to that definition, and it is disgraceful. As Jassica Valenti wrote in The Washington Post:

“So if you initially agree to have sex and later change your mind for whatever 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?”

This disturbing cultural vestige of a pre-feminist age, however, helped fuel the willingness to view Assange as wrongly persecuted. “No means no” in Sweden, which has much more progressive rape laws than the U.S., but here “no” means “well, if you’re really committed there isn’t much I can do about it” in too many minds, too many statutes, and too many courts. Ethics Foul: Public and legal attitudes toward rape in the U.S., which offend the principles of autonomy, fairness, equality, respect, empathy and justice.

Finally, there is the bizarre and somewhat confusing argument put forth by former prosecutor Wendy Murphy of The Daily Beast. Her first problem was that she relied on the “sex by surprise” accounts, but the real head-scratcher in her piece was this:

“As a general matter, assuming the allegations are true, Assange should be punished because he violated the women’s fundamental right to personal autonomy and bodily integrity by acting without their “knowing, intelligent and voluntary” consent. But just because, in theory, the charges are worth pursuing, doesn’t mean we should ignore the context within which the prosecution decision was made.

“Put another way, if Assange were any other guy, he would not be sitting in a British jail and there would have been no international manhunt, no matter how many times his condom broke during sex. Because the public understands this, they also understand that the timing of Assange’s arrest on sex charges is suspicious. The charges are either a substitute for a lack of evidence in conjunction with a WikiLeaks indictment, or they’re “holding charges” meant to keep the guy penned up while the world figures out where, if anywhere, Assange might actually be prosecutable for the release of government files.

“Either way, when prosecutors use the public’s money to pursue a criminal case as a pretext for some other agenda, people become cynical and mistrustful of the rule of law.”

No, they don’t—not if, as Murphy presumes in her argument, the charge being pursued is a valid one, in which case it can’t be called a “pretext”. Not if, as the public sees on “Law and Order,” “Criminal Minds”, and every other law enforcement drama, a “holding charge” is used to seek justice and protect the public from an individual who can do a lot of damage if left unchecked.

As was the case with O.J. Simpson (robbery) and Al Capone (tax evasion), the public usually agrees that punishment for a lesser charge still conveys vicarious justice for more serious crimes that the target had managed to commit without legal penalties. Prosecutorial discretion is a legitimate, indeed crucial, tool of law enforcement, and it has several appropriate applications. One is to pursue a valid prosecution for one crime more vigorously because the individual has been able to or may elude apprehension or punishment for other crimes. Trumping up a fake or weak charge for this purpose is obviously unethical, but that is not what the prosecutors have done in Assange’s rape case. Prosecuting rape on facts like those in the police report cannot be called a “pretext.” Ethics Foul: None. Muphy’s argument is neither logical nor factual.

Meanwhile, I’m waiting to find out if Mr. Assange will send a letter of congratulations to the Guardian for embracing his values by releasing his police report.