It is not Julian Assange that is on trial here but Sweden and its reputation as a modern and model country with rules of law, writes Melbourne barrister James D. Catlin who acted for Julian Assange in London in October.

Apparently having consensual sex in Sweden without a condom is punishable by a term of imprisonment of a minimum of two years for rape. That is the basis for a reinstitution of rape charges against WikiLeaks figurehead Julian Assange that is destined to make Sweden and its justice system the laughing stock of the world and dramatically damage its reputation as a model of modernity.

Sweden’s Public Prosecutor’s Office was embarrassed in August this year when it leaked to the media that it was seeking to arrest Assange for rape, then on the same day withdrew the arrest warrant because in its own words there was “no evidence”. The damage to Assange’s reputation is incalculable. More than three quarters of internet references to his name refer to rape. Now, three months on and three prosecutors later, the Swedes seem to be clear on their basis to proceed. Consensual sex that started out with a condom ended up without one, ergo, the sex was not consensual.

For three months Assange had been waiting in vain to hear whether media statements by and for the two female “victims” that there was no fear or violence were going to be embellished so the charges might be carried forward due to greater seriousness. Such statements would stop a rape charge in any Western country dead in its tracks. Rape is a crime of violence, duress or deception. You can rape someone by deluding them into thinking you are someone else or by drugging them or by reason of their young age but essentially it’s a crime of violence.

The women here are near to and over 30 and have international experience, some of it working in Swedish government embassies. There is no suggestion of drugs nor identity concealment. Far from it. Both women boasted of their celebrity connection to Assange after the events that they would now see him destroyed for.

That further evidence hasn’t been confected to make the charges less absurd does Sweden no credit because it has no choice in the matter. The phenomena of social networking through the internet and mobile phones constrains Swedish authorities from augmenting the evidence against Assange because it would look even less credible in the face of tweets by Anna Ardin and SMS texts by Sofia Wilén boasting of their respective conquests after the “crimes”.

In the case of Ardin it is clear that she has thrown a party in Assange’s honour at her flat after the “crime” and tweeted to her followers that she is with the “the world’s coolest smartest people, it’s amazing!”. Go on the internet and see for yourself. That Ardin has sought unsuccessfully to delete these exculpatory tweets from the public record should be a matter of grave concern. That she has published on the internet a guide on how to get revenge on cheating boyfriends ever graver. The exact content of Wilén’s mobile phone texts is not yet known but their bragging and exculpatory character has been confirmed by Swedish prosecutors. Niether Wilén’s nor Ardin’s texts complain of rape.

But then neither Arden nor Wilén complained to the police but rather “sought advice”, a technique in Sweden enabling citizens to avoid just punishment for making false complaints. They sought advice together, having collaborated and irrevocably tainted each other’s evidence beforehand. Their SMS texts to each other show a plan to contact the Swedish newspaper Expressen beforehand in order to maximise the damage to Assange. They belong to the same political group and attended a public lecture given by Assange and organised by them. You can see Wilén on the YouTube video of the event even now.

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Of course, their celebrity lawyer Claes Borgström was questioned as to how the women themselves could be essentially contradicting the legal characterisation of Swedish prosecutors; a crime of non-consent by consent. Borgström’s answer is emblematic of how divorced from reality this matter is. “They (the women) are not jurists”. You need a law degree to know whether you have been r-ped or not in Sweden. In the context of such double think, the question of how the Swedish authorities propose to deal with victims who neither saw themselves as such nor acted as such is easily answered: You’re not a Swedish lawyer so you wouldn’t understand anyway. The consent of both women to sex with Assange has been confirmed by prosecutors.

Proposed reforms of Swedish rape laws would introduce a test of whether the unequal power relations between the parties might void the sincerely expressed consent of one party. In this case, presumably, the politically active Ardin, with experience fielding gender equity complaints as a gender equity officer at Uppsala University, had her will suborned by Assange’s celebrity. The prosecutor coming as she does from a prosecution “Development Unit” could achieve this broadening of the law during Assange’s trial so he can be convicted of a crime that didn’t exist at the time he allegedly committed it. She would need to. There is no precedent for it. The Swedes are making it up as they go along.

A great deal more damning evidence is yet to be revealed about what passes for legal process in Sweden, such as Assange’s lawyers having not received a single official document until November 18, 2010 (and then in Swedish language contrary to European Law) and having to learn about the status of investigations through prosecution media announcements but make no mistake: it is not Julian Assange that is on trial here but Sweden and its reputation as a modern and model country with rules of law.

*James D. Catlin is a Melbourne barrister who acted for Julian Assange in London during October.

