Monday, February 28, 2011

"The King's Speech" kicks

And here's my view from THE HISTORY PLACE:
By Jim Castagnera
Special to The History Place

King George VI’s life does not appear to have been a very happy one. If it’s possible to feel sorry for a king, he just might be the one. The second son of George V, Prince Albert’s childhood was a plague of ailments. A southpaw, he was forced to learn to write with his right hand. He suffered from chronic tummy troubles and had knocked knees that were corrected by painful braces. Worst of all, he stammered.

As George V’s number two son, Prince Albert’s defect was a source of occasional, but severe, public embarrassment, as when in 1925 his father ordered him to make the closing address at Wimbledon. Colin Firth, playing the Duke of York, ably conveys what a humiliation that was, not only for His Royal Highness, but for his pained, embarrassed subjects, as well.

Determined to overcome the malady, Albert consults a series of speech therapists and physicians, one of whom prescribes smoking to relax the larynx. This advice leads to George VI’s lung cancer some decades later. In the meantime, the nasty habit does nothing to solve the problem. Finally, the prince’s wife, played by Helena Bonham Carter, tracks down Lionel Logue, a quirky Australian speech teacher and ‘wannabe’ Shakespearean actor.

Logue, played by Geoffrey Rush – a master of the quirky characterization, is told at first he will be treating a “Mr. Johnson,” the alias accorded Prince Albert by his fellow naval officers, when he served with distinction during the Great War. Learning his new client’s true identity, Logue dubs him Bertie, insisting they must interact as equals. What follows is a series of amusing activities, many of them resembling a cross between calisthenics and schoolyard games. Gradually, Bertie’s elocution improves, but a break occurs between commoner-professor and royal student, when Logue pushes too far across the class boundary.

The break, predictably, is short-lived, as the rush of events overtakes Prince Albert. George V dies. King Edward VIII, nee David Prince of Wales, prefers to abdicate, before even being properly crowned, in order to marry the Baltimore divorcee Wallace Simpson. As if this isn’t enough for a poor prince to endure, there’s that other little matter of Herr Hitler and the looming Second World War.

Re-enter Lionel Logue, despite Bertie’s discovery that the Aussie holds no formal degrees and had no formal training. Logue explains on the eve of the coronation that he learned his trade working with shell-shocked WWI vets. He regains Prince Albert’s trust and guides him through the thicket of the coronation ceremony.

However, there’s no rest for the royal. In September 1939, a state of war existing between the Empire and the Third Reich, King George VI is expected to buck up his entire empire via a live broadcast on the BBC. Needless to note, this is the speech of the film’s title and the climax of the movie.

Before the red light blinks and the king is on the air, he asks Logue, “What can I ever do to thank you?” Without hesitation, the impudent Australian replies, “A knighthood?” At the film’s end, we are told that Logue received his knighthood in 1944, after being present at every subsequent wartime speech the king gave.

As for George VI, his childhood health problems and lifelong struggle with that blasted stammer were preludes to cancer and heart disease in his few post-war years. Additionally, he got to be the monarch who presided over the dissolution of the Empire: Transjordan in 1946, India (the jewel in the crown) in ’47, Burma and Palestine in ’48, and Ireland a year later.

In 1952 he succumbed to his several serious ailments, passing the crown to Elizabeth II, who wears it to this very day.

The King’s Speech tells the little-known tale of Prince Albert’s stammer, sweetened by a depiction of an unusual, if not unique, friendship between the king of 25 percent of humanity and a commoner from the colonies, who dared call his sovereign “Bertie.”

If you are a student of World War II or only a filmgoer who can appreciate exceptionally strong performances by fine actors blessed by a great script, see The King’s Speech. And watch for it to win some Oscars a bit later this year.

Rated R for some language.
Oscars® is a registered trademark of The Academy of Motion Picture Arts and Sciences.

Class action filed by vets seeks to force Pentagon to change its handling of rape cases

United States District Court, E.D. Virginia.
Kori CIOCA Mary Gallagher Rebekah Havrilla Myla Haider Sarah Albertson Greg Jelovdou Amber De Roche Panayiota Bertzikis Katelyn Boatman Andrew Schmidt Nicole Curdt Jessica Kenyon Andrea Neutzling Kristen Reuss Jessica Nicole Hinves Stephanie Schroeder,
Former Secretary of Defense Donald RUMSFELD Secretary of Defense Robert Gates.
No. 11CV00151.
February 15, 2011.

Jury Demand


Susan L. Burke (VA Bar No. 27769), Counsel for Plaintiffs, Burke PLLC, 1000 Potomac Street, N.W., Washington, DC 20007-1105, Telephone: (202) 386-9622, Facsimile: (202) 232-5513,

1. This action seeks monetary damages under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971) and Davis v. Passman, 442 US 228 (1979) to compensate Plaintiffs for being raped, assaulted and harassed while serving this nation as members of the military.

2. Defendants violated Plaintiffs' Constitutional rights. As detailed in the allegations below, Defendants failed to prevent Plaintiffs and others from being raped and sexually assaulted. Defendants failed to (1) investigate rapes and sexual assaults, (2) prosecute perpetrators, (3) provide an adequate judicial system as required by the Uniform Military Justice Act, and (4) abide by Congressional deadlines to implement Congressionally-ordered institutional reforms to stop rapes and other sexual assaults.

3. Instead, Defendants ran institutions in which perpetrators were promoted and where military personnel openly mocked and flouted the modest Congressionally-mandated institutional reforms. Defendants ran institutions in which Plaintiffs and other victims were openly subjected to retaliation, were encouraged to refrain from reporting rapes and sexual assaults in a manner that would have permitted prosecution, and were ordered to keep quiet and refrain from telling anyone about the criminal acts of their work colleagues. Defendants lack any legal justification for their failures to remedy such a flawed system. Defendants' failures to act violated Plaintiffs' individual Constitutional rights.


4. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1332.

5. Venue is proper pursuant to 28 U.S.C. § 1391 et seq.


6. Plaintiffs are veteran and active-duty servicemen and servicewoman who, while serving in the United States Army, Navy, Marine Corps, Coast Guard, or Reserves, have been raped, assaulted, and harassed by active duty members of the military. They have been directly and seriously injured by Defendants' actions and omissions.


7. Plaintiff Kori Cioca resides in Ohio. She is a citizen of the United States.

8. Seaman (“SN”) Cioca served in the Coast Guard from August of 2005 to June

2007. SN Cioca received the Sailor of the Quarter for Outstanding Work and Leadership.

9. SN Cioca began to be harassed and threatened by her superior. On one occasion, when SN Cioca made a mistake during a knot-tying quiz, her superior stated - in front of SN Cioca's work colleagues - that she was a “stupid fucking female, who didn't belong in the military.” Her superior spit in her face on that occasion.

10. While changing out for training, SN Cioca's attacker would try to force the door open and tell her that “he needed to perform a Personal Protective Equipment Inspection.” Often, when this supervisor would walk past Ms. Cioca, he would grab her buttocks, and order her in a hateful tone to “turn you fucking disrespectful non-rate.”

11. SN Cioca complained about her superior's abusive behavior and expressed her fear of him to other military personnel in her military chain of command (hereinafter “Command”). Rather than resulting in a cessation of the superior's misconduct, this reporting led to an escalation. The superior began to drive past her home multiple times during the day and call her repeatedly, leaving voicemails threatening her life. He then began to break into her room at night, stand over her bed and masturbate. SN Cioca began sleeping with a knife under her pillow to defend herself.

12. SN Cioca was aware that this supervisor would drink on duty when the Command had left for the day. At times, he would unlock her door with their keys when he was the Officer of the Day, which provided him access to the keys for the whole duty station.

13. During one work day, SN Cioca's superior thrust his groin into her buttocks as she bent over to pick up some trash. He then called her a “fucking whore” and laughed. SN Cioca and another shipmate who had witnessed this incident went together to report the incident to Command. SM Cioca requested a transfer, but Command denied the request despite the harassment.

14. Command informed the superior about the report, which led to him threatening to stab SN Cioca, the witness, and the families of both.

15. This superior assigned SN Cioca to extra duty by herself that should have been assigned to a group of shipmates. SN Cioca was made to shovel boat ramps while the same superior screamed at her for going to her Command. He would blow his cigarette smoke in her face and told her that “[She] would pay for this, [he] was in charge and there wasn't anything a woman could do about it.”

16. SN Cioca often slept in her car because when she knew that the superior had been drinking. SN Cioca did not have the money to travel and her home was an hour and a half away.

17. At the end of November 2005, the superior broke into SN Cioca's room. He was drunk and had an erection. He approached SN Cioca and directed her to touch his penis. When SN Cioca refused loudly (hoping another shipmate would hear), he grabbed her hand and pushed it into his groin. When SN Cioca yelled again and pushed her superior away, he struck her so hard against the left side of her face that she was thrown across the room and against the wall.

18. SN Cioca and two other shipmates who had witnessed the harassment of SN Cioca went to Command and reported the assault. Command did absolutely nothing.

19. SN Cioca's Executive Petty Officer invited her to his church, and took her into a room at the Church of Jesus Christ of the Latter Day Saints. Once they were there, SN Cioca's chief and two other men put their hands on her head and prayed for her safety and for help from God. SN Cioca's chief said that he tried to talk to the Officer in Charge about the harassment of SN Cioca, but that the Officer said to “let her burn” because “she ruins careers.”

20. In December 2005, SN Cioca was ordered to go retrieve some keys from the superior, who was in his stateroom. Although she sought to persuade a shipmate to accompany her, no one would do so. Although SN Cioca stayed well outside the door, the superior realized that she was alone, and told her “get the fuck in here you disrespectful non-rate, or I will make you.” He then grabbed SN Cioca by her hair, pulled her into his stateroom, shut the door, and raped SN Cioca.

21. SN Cioca attempted to report the rape to Command, but was told to wait until after an Immigration and Customs Enforcement (ICE) symposium at the station was completed. SN Cioca's rapist attended the ICE symposium. During the ICE symposium, SN Cioca was ordered to stand watch and stay in radio communications with her rapist.

22. Subsequently, Command obtained an admission of sex from the rapist, but told SN Cioca that if she pressed forward with reporting the sex as rape, she would be court-martialed for lying. Command refused SN Cioca's pleas that she be permitted to take a lie detector test to establish the validity of her statement that she was raped.

23. The rapist pled guilty only to hitting SN Cioca. His only punishment was minor loss of pay and being restricted to base for 30 days.

24. Command did not keep the rape and assault confidential, but instead permitted other military personnel to harass SN Cioca, call her names and spit on her.

25. Command directed SN Cioca to sign a paper stating that she had had an inappropriate relationship with her rapist. When SN Cioca objected that the paper falsely portrayed rape as consensual sex, Command told SN Cioca that she was being ordered to sign, and could not refuse to do so.

26. Command retaliated against SN Cioca. When military physicians treating SN Cioca for the severe injury to her jaw recommended surgery, Command transferred Ms. Cioca to a duty station lacking any surgeons. Command also permitted Ms. Cioca to be sexually harassed at her new duty station in Saint Joseph Michigan, and then discharged her on the grounds that she had “a history of inappropriate relationships with individuals in the Coast Guard.”

27. As part of the discharge process, Command assigned SN Cioca to stay in an all-male barracks for sixty days. In so doing, Command was intentionally ignoring the advice of military medical physicians who had diagnosed SN Cioca with post-traumatic stress disorder as a result of the rape and attacks, and advised that she should not be further traumatized by being forced to stay in an all-male barracks.

28. SN Cioca suffers from post-traumatic stress disorder, major depressive disorder, and anxiety. She also suffers from bilateral disc displacement and an abnormal EEG due to nerve damage in her face.


29. Plaintiff Mary Gallagher resides in Massachusetts. She is a citizen of the United States.

30. Technical Sergeant (“TSgt”) Gallagher deployed to Iraq in 2009 as a member of the Air National Guard.

31. On November 5, 2009, while she was deployed in Iraq, a co-worker offered her a ride home to her living quarters. When she accepted, instead of driving her home, he drove her to a remote area and tried to kiss her. TSgt Gallagher threatened to report him. He become angry, and verbally assaulted TSgt Gallagher. TSgt Gallagher reported the incident to her Command, but they claimed that they could not do anything about it.

32. On November 7, 2009, the co-worker began to stalk TSgt Gallagher. He tried to break into her room, claiming TSgt Gallagher “didn't know what she was missing.” He telephoned her repeatedly. TSgt Gallagher again reported her co-worker's threatening behavior to Command, but was advised that they could not do anything because “it was a ‘he said, she said’ situation”.

33. On November 12, 2009, the co-worker sexually assaulted TSgt Gallagher in the restroom. He pushed TSgt Gallagher up against the left side of the wall, took his right hand and pulled TSgt Gallagher's pants and underwear down, and then used his hand to rub her vagina. He simultaneously ground his penis against TSgt Gallagher, and talked about how much he was enjoying the assault.

34. TSgt Gallagher did not report the violent assault immediately because Command had advised her that nothing could be done after she had reported the co-worker's threatening behavior on November 5 and 7, 2009.

35. Command contacted TSgt Gallagher approximately two weeks later, and asked for more details of the events that occurred on November 5 and 7, 2009. At that point, TSgt Gallagher reported the violent assault.

36. Command's only response was to reassign TSgt Gallagher's assailant and order him to refrain from any contact with TSgt Gallagher. TSgt Gallagher was then lectured by the base chaplain, who claimed that 96% of sexual assaults on women occur when drinking is involved. TSgt Gallagher had not been drinking during any of the assaults.

37. Command later directed TSgt Gallagher to provide a statement for the Victory Base Compound Marshalls, which she did. At that point, she was questioned about why she had “waited so long to report the assaults and harassment.” But in fact, TSgt Gallagher reported the first two assaults the very day after they occurred.

38. TSgt Gallagher suffers from post-traumatic stress disorder.


39. Plaintiff Rebekah Havrilla resides in South Carolina. She is a citizen of the United States.

40. Sergeant (“SGT”) Havrilla served in the Army from January 2004 until September of 2009.

41. During basic training, SGT Havrilla heard Command repeatedly equate being female with being weak or incompetent. Command used the terms “bitch, pussy, fag, cunt” as a means of expressing disapproval.

42. Command required SGT Havrilla and her work colleagues to attend classes regarding the prevention of sexual assault and harassment once per year. Command, however, made a mockery of these classes. As the instructor would describe prohibited conduct, one or more of the class participants would immediately begin to engage in the prohibited conduct. One solider stripped completely naked and got on the table during break in the middle of class. Command decided that his “punishment” for this conduct was to serve as the Equal Opportunity representative and serve as the next instructor for the sexual assault and harassment training.

43. SGT Havrilla deployed to Afghanistan in 2006. Her supervisor sexually harassed her, stating on one occasion that he “really wanted to fuck [her] right now.” On another occasion, as SGT Havrilla's peers watched, he walked up behind SGT Havrilla, grabbed her waist and kissed and bit the back of her neck. He began to slap her bottom whenever he passed by. He also belittled and mocked SGT Havrilla SGT Havrilla suffered from the harassment to such a degree that she sought medical assistance.

44. Subsequently, SGT Havrilla worked with an individual from a canine unit. That same colleague raped her. He pulled her into his bed, held her down, and raped her. He also photographed the rape.

45. SGT Havrilla reported the sexual harassment and rape within approximately one month, under the military's restricted reporting policy.

46. In February of 2009 SGT Havrilla reported for four weeks of active duty training. During this training, she saw her rapist in the shopette on Fort Leonard Wood. Upon seeing her rapist, SGT Havrilla went into shock. She immediately sought the assistance of the military chaplain. When SGT Havrilla met with the military chaplain, he told her that “it must have been God's will for her to be raped” and recommended that she attend church more frequently.

47. SGT Havrilla suffers from post-traumatic stress disorder and chronic depression.


48. Plaintiff Myla Haider resides in Washington. She is a citizen of the United States.

49. Sergeant (“SGT”) Haider served in the Army from 1994 to 1999 and again from November 2000 to October 2005.

50. In 2002, SGT Haider was raped while she was interning with the Criminal Investigative Division (CID) in Yongsan, Korea. The CID is the military unit charged with investigating crimes, including rape and sexual assault.

51. On that occasion, SGT Haider socialized with a group of CID colleagues, including the rapist. After the socializing ended, the rapist (a senior agent in CID) isolated SGT Haider from the group, and raped her.

52. SGT Haider did not report the rape because she had worked on CID's investigations of sexual assaults. She had witnessed firsthand the negative attitude that the CID had towards rape victims, and did not believe she would be able to obtain justice if she reported being raped. However, she contemporaneously confided in one agent who was present and disclosed the rape to two additional friends, both other Division agents. They promised her that they would not report the rape, and agreed with her assessment that reporting the rape would not lead to justice.

53. Two years later, in November 2004, SGT Haider was contacted by a CID agent at Fort Riley, Kansas. The Fort Riley agent had learned from one of SGT Haider's friends that she had been raped two years earlier by the senior CID agent. The Fort Riley agent told SGT Haider that the CID agent who had raped her was being investigated as a serial sex offender because he had raped several women in addition to SGT Haider and indecently assaulted others.

54. In April 2005, SGT Haider testified at her rapist's court marital. However, the agents to whom she had contemporaneously reported the rape testified for the rapist. SGT Haider later learned from one of the agents that they had been threatened by Command, and gave inaccurate testimony in order to preserve their careers in CID.


55. Plaintiff Sarah Albertson resides in Montana. She is a citizen of the United States.

56. Corporal (“Cpl.”) Albertson served in the Marine Corps from 2003 until 2008.

57. On August 27th, 2006, Cpl. Albertson was raped by a fellow Marine, a man who held a higher rank in the Marines than Cpl. Albertson.

58. When Cpl. Albertson advised her Command of the rape, Command advised Cpl. Albertson that, because she had been consuming alcohol, they would charge her with “Inappropriate Barracks Conduct.” Command also told Cpl. Albertson that were going to charge the perpetrator with the very same offense (“Inappropriate Barracks Conduct”) for raping her.

59. Command told Cpl. Albertson that she was not allowed to discuss the rape with anyone else, but was required by law to report it to them.

60. Command also ordered Cpl. Albertson to “respect” her assailant and follow his orders because he outranked her.

61. After Cpl. Albertson reported the assault to Command, her superiors, acting openly with the knowledge, support and approval of Command, ostracized and harassed Cpl. Albertson.

62. Command ignored the professional advice provided by the military counselor assigned to the matter, and forced Cpl. Albertson to interact with her rapist repeatedly for two full years. When Cpl. Albertson suffered from a panic attack brought on by being forced to be in the same office as the rapist, Command reprimanded Cpl. Albertson.

63. Command ignored the professional advice provided by the military counselor assigned to the matter, and refused Cpl. Albertson's requests for leave to handle the trauma of being raped by a fellow Marine.

64. Command refused Cpl. Albertson's request to change housing, and instead forced Cpl. Albertson to live one floor below her rapist for two years.

65. Command required Cpl. Albertson to disclose the medications she had been prescribed to counter the trauma of being forced to live and work with her rapist. After Command reviewed the list, they suspended Cpl. Albertson's security clearance and downgraded her work assignments.

66. Command placed Cpl. Albertson in a Body Composition Program, and then promoted the rapist to head up that program. Command forced Cpl. Albertson to report to her rapist on a daily basis.

67. Although the Navy Criminal Investigative Service (“NCIS”) investigated the matter, Cpl. Albertson's Command failed to permit the matter to be adjudicated within the military system of justice. As a result, Cpl. Albertson's rapist was never prosecuted or otherwise brought to justice in any way.

68. Cpl. Albertson has been diagnosed with post-traumatic stress disorder.


69. Plaintiff Greg Jeloudov resides in New York. He is a citizen of the United States.

70. Private (“PVT”) Jeloudov served in the Army from February 2009 until June 2009.

71. During basic training, PVT Jeloudov was verbally harassed by his fellow soldiers. One two different occasions, PVT Jeloudov's colleagues said “We'll send you back to Russia split in half, you commie faggot”, and “Now you champagne socialist faggot from New York gonna get what you deserve.”

72. On May 17, 2009, PVT Jeloudov was raped in his barracks.

73. PVT Jeloudov reported the rape to Command. His Command laughed at him. His drill sergeant turned to another sergeant present, stating “Can you believe this shit?”

74. Rather than properly investigate the matter, Command instead forced PVT Jeloudov to sign a typed statement on May 19, 2009, stating - falsely -- that he was a “practicing homosexual.” Command then used the statement to discharge PVT Jeloudov under the “Don't Ask, Don't Tell” policy.

75. PVT Jeloudov suffers from post-traumatic stress disorder.


76. Plaintiff Amber De Roche resides in Washington. She is a citizen of the United States.

77. Petty Officer De Roche served in the Navy from December 2000 to December 2005.

78. In August of 2001, Petty Officer De Roche was raped by two shipmates in a hotel room while on port of call in Thailand. One assailant ripped off Petty Officer De Roche's clothes and held her down while the other assailant raped her. Then, the first rapist held Petty Officer De Roche down while the second assailant raped her. This sequence was repeated several times. Thereafter, one of the rapists placed Petty Officer De Roche in the shower, and washed her. They then removed her from the hotel room, and put her out on the streets of Thailand.

79. Petty Officer De Roche found her way back to her hotel. The next day, Petty Officer De Roche told a female friend about being repeatedly raped. The friend took Petty Officer De Roche to the military police on duty. The military police brought Petty Officer De Roche to a sexual assault coordinator, who took her for a medical exam. Petty Officer De Roche was bruised and injured to such a degree during the assault that the physician stopped the exam and began to cry because he was so distraught about the extent of her injuries.

80. After Petty Officer De Roche reported the rapes, she became a target of harassment. She was imprisoned on the medical ward, and denied food. While this was occurring, her Command refused to let her leave the ship and forced her to be on call for 24 hours per day without receiving any counseling to assist her in recovering from the rapes.

81. Petty Officer De Roche sought out the ship's chaplain, and told him she was suicidal as a result of the rapes and her subsequent mistreatment. As a result, Petty Officer De Roche was finally permitted to leave that ship, and serve out the remainder of her duty on another ship.

82. Command did not court martial the perpetrators, but instead handled the matter with so-called “non-judicial punishment.” Command docked the two rapists' pay for six months, and reduced the rank of one of the rapists. Both were permitted to remain on active duty.

83. Command advised Petty Officer De Roche of this outcome, told her she should “accept the situation,” and refrain from speaking out against the lack of punishment or accountability.

84. Petty Officer De Roche suffers from post-traumatic stress disorder.


85. Plaintiff Panayiota Bertzikis resides in Massachusetts. She is a citizen of the United States and served in the Coast Guard from November 2005 until May 2007.

86. On May 30, 2006, Seaman (“SN”) Bertzikis was raped by a shipmate when she was stationed in Burlington, Vermont. During a hike, her rapist threw SN Bertzikis on the ground, punched her in the face, and raped her.

87. SN Bertzikis reported the rape to her Command who told SN Bertzikis to cease speaking of the rape or be charged with a military crime equivalent to slander. SN Bertzikis later obtained photographs and admissions made by her rapist through the Freedom of Information Act.

88. However, Command failed to take any substantial steps to investigate the matter or have it adjudicated within the military system of justice. As a result, SN Bertzikis' rapist was never prosecuted or otherwise brought to justice in any way.

89. Instead, Command forced SN Bertzikis to live on the same floor as her rapist in barracks where he would remain a constant threat, day and night. Command also forced SN Bertzikis to work with her rapist, and was told that they should use the time to “work out their differences.”

90. Command was well aware of, but did not stop, further assaults and harassment of SN Bertzikis. When SN Bertzikis was transferred to Boston, Massachusetts, Command permitted Coast Guard personnel to call SN Bertzikis a “liar” and a “whore.” While she was on base performing her work duties, a group of Coast Guard personnel cornered SN Bertzikis and tried to rip off her uniform. They called SN Bertzikis a “crazy lying whore” and said she would “pay for snitching” on their friend. They threatened to rape her again.

91. When SN Bertzikis reported this assault to the “victim advocate” assigned by the Coast Guard, she was advised that she should not report this assault and other harassment because she would be seen as “difficult” and would not receive any assistance in bringing her rapist to justice. In addition, SN Bertzikis' appointed attorney told her that “If [her rapist] did not have a history of sexual assault, why would he assault anyone now?”

92. SN Bertzikis was denied rank despite the fact that she had met all the necessary requirements because of the “pending investigation.”

93. As a result of her experience, SN Bertzikis founded the Military Rape Crisis Center. In that role, she has spoken with thousands of women who were raped, but who, like her, were told not to report the rape because doing so would get them (but not the rapists) in trouble.

94. SN Bertzikis was diagnosed with post-traumatic stress disorder.


95. Plaintiff Katelyn Boatman resides in Oklahoma. She is a citizen of the United States.

96. Ms. Boatman joined the Navy after graduating from high school in 2007. She is a citizen of the United States and presently is on active duty.

97. Ms. Boatman graduated from the Survival, Evasion, Resistance, and Escape (“SERE”) school, and was assigned to Tinker Air Force Base in Oklahoma.

98. During Ms. Boatman's tenure as an aviator at Tinker, she was subjected to severe harassment by her Command. On one occasion, her commander asked her in front of other naval aviators if she “liked it in the ass.” When Ms. Boatman refused to respond, he called her a “prude cunt.”

99. Ms. Boatman responded to the constant and pervasive sexual harassment by remaining in her living quarters when not on duty, and by avoiding social occasions attended by work colleagues. However, Command viewed Ms. Boatman's efforts to avoid the debilitating harassment as “an attitude problem” and ordered her to socialize or risk demotion or career stagnation.

100. On December 2, 2010, as a result of Command's directive, Ms. Boatman attended a holiday party and socialized with her fellow naval aviators. After the holiday party ended, Ms. Boatman joined her work colleagues in socializing at a nearby bar. There, two of her work colleagues drugged Ms. Boatman, and brought her to their apartment. Although Ms. Boatman lacks any memory as a result of being drugged, physical evidence establishes that one or more persons raped her.

101. Ms. Boatman reported the rape to Command. Although the military's criminal investigative service began an investigation, Command intervened and closed the matter, citing a lack of evidence. Ms. Boatman's rapist or rapists have not been prosecuted or otherwise brought to justice within the military system of justice in any way.

102. Ms. Boatman is being forced by these circumstances to relinquish her planned career in the U.S. military serving this nation.


103. Plaintiff Andrew Schmidt resides in California. He is a citizen of the United States.

104. Mr. Schmidt served in the Navy from 1999 until 2001 as a Corpsman.

105. In spring 2001, Corpsman Schmidt was assigned to the 2nd Battalion, 8th Marines, at Camp Lejeune. His lieutenant ordered the unit to line up to receive some gear, including fins, masks and a dive knife. As he was lining up, a Marine corporal shoved his fingers up Corpsman Schmidt's anus until they penetrated him. Corpsman Schmidt protested to his attacker, who apologized. Corpsman Schmidt did not report this incident, as he thought it was highly unusual, and would not happen again.

106. However, this same individual assaulted Corpsman Schmidt in a similar manner later in the year. This time, Corpsman Schmidt protested loudly and a Sergeant came over to them. The Sergeant made the assailant apologize, but no further action was taken.

107. Soon after, his Command ordered Corpsman Schmidt to remove a mole on his assailant's leg. This forced touching of his assailant caused Corpsman Schmidt distress, and he complained to his Command.

108. Corpsman Schmidt transferred to the USS Shreveport. There, several different Marines assaulted him by holding him against the wall while his testicles were fondled, squeezed, or tickled. On one occasion when he was being assaulted, Corpsman Schmidt turned around and punched his assailant. A Corporal who had seen both the assault and the punch intervened, berated Corpsman for striking a superior. However, the Corporal backed down when Corpsman Schmidt complained that he was defending himself from sexual assault.

109. Corpsman Schmidt's attackers held a higher rank than he did, which made it difficult for him to achieve justice. When he reported the frequent incidents of sexual abuse to his Command, they encouraged him to avoid “reporting against one of your own.” Later, Command bluntly advised Corpsman Schmidt that reporting the sexual abuse would ruin his career because “bad things happen to those who rock the boat.”

110. When Corpsman Schmidt pressed forward with reporting the abuse, his Command physically threatened him, and told him “Don't make us deal with you in a physical way,” and that “the Marine Corps know where your mother is” because she was listed as his emergency contact. Thereafter, Corpsman Schmidt was cornered several times and told that he was going to be beaten.

111. In April 2002, Corpsman Schmidt contacted the office of Senator Dodd in search of help. His office sent the matter to Marine Headquarters, but Headquarters merely told the battalion to investigate themselves and send back a report. The battalion report claimed that Corpsman Schmidt was a liar, and that all his accusations were unfounded.

112. In September of 2002, Corpsman Schmidt was reassigned, but his former Command told his new location that he was a “snitch.” This led to continued physical and verbal abuse.

113. Corpsman Schmidt persisted in trying to report the abuse, contacting the Naval Criminal Investigative Service (NCIS) on two occasions while stationed in Camp Lejeune, North Carolina. No one from NCIS would meet with him.

114. After two years of trying, Corpsman Schmidt was finally allowed to meet with the Commanding General of Fort Lejeune. This General admitted that physical abuses described by Corpsman Schmidt were occurring, but claimed that such conduct did not rise to the level of sexual harassment or assault.

115. In April 2003, Corpsman Schmidt left the military. After leaving the military, Corpsman Schmidt learned that many of his assailants had been promoted.

116. Corpsman Schmidt has continued to contact military and civilian officials at NCIS, the FBI, and Defense Criminal Investigative Service (DCIS). Nothing has been done.

117. Corpsman Schmidt suffers from extreme emotional distress.


118. Plaintiff Nicole Curdt resides in Wyoming. She is a citizen of the United States.

119. Damage Control Firearm Apprentice (“DCFA”) Curdt served in the Navy from 2000 until 2003.

120. DCFA Curdt was assigned to serve on a ship. When DCFA Curdt was working on watch, member of her Command cornered her in a passageway in an engine room in noisy and isolated area. He told her that he had heard what a “good piece of ass” DCFA Curdt was, and that she would not be permitted to go free until she had engaged in oral sex. He told her that screaming would not help, as the machinery was too loud for anyone to hear (which DCFA Curdt knew to be true.). He then sexually assaulted DCFA Curdt.

121. On July 21, 2002, DCFA Curdt sought out the naval Chaplain who had just been brought aboard the ship. DCFA Curdt asked the Chaplain if she could seek his help on a confidential basis, and was assured that she could. DCFA Curdt told the Chaplain about the sexual assault in the ship engine room. The Chaplain asked for but did not directly obtain DCFA Curdt's permission to make an anonymous report to Command.

122. The very next day, the man who had assaulted DCFA Curdt in the ship engine room told DCFA Curdt that “everyone on the ship was looking for” DCFA Curdt because Command had ordered the Chaplain to produce the source of the complaints.

123. Command interviewed DCFA Curdt, and directed her to cooperate with the military's criminal investigative service. She did so, but objected when the investigating agent asked her to sign a summary of her remarks that was riddled with inaccuracies and omissions. The agent told DCFA Curdt that she would be court-martialed if she did not sign the statement as drafted. As a result, DCFA Curdt signed the statement.

124. In August of 2002, Command told DCFA Curdt that she was not permitted to speak to the media or to anyone else about the events on the ship. Command gave DCFA Curdt a document described as a “direct gag order.”

125. Command retaliated against DCFA Curdt for reporting the sexual assault and the sexual harassment by demoting her from an E-3 to an E-2, fining her approximately half month's pay times two and restricted her to quarters for sixty days.

126. Command discharged DCFA Curdt in June 2003 with an “Other Than Honorable” discharge for “Serious Misconduct.” It took DCFA Curdt six years of effort to eliminate that unjust ranking from her service record. In contrast, Command permitted the perpetrator to remain on active duty after serving a very short term of imprisonment.

127. DCFA Curdt suffers from post-traumatic stress disorder.


128. Plaintiff Jessica Kenyon resides in Pennsylvania. She is a citizen of the United States.

129. Private (“PVT”) Kenyon joined the Army in from August 2005 to August 2006.

130. During advanced and individual training at Fort Eustis, PVT Kenyon's teaching sergeant began to harass her. He constantly touched her, and made sexual jokes and comments to her. PVT Kenyon did not believe it would be effective to report the teaching sergeant because the commander of the unit was openly misogynistic, stating “this unit never had any problems until females came into it.”

131. In December 2005, while PVT Kenyon was home for the holidays, she was raped by a member of the Army National Guard. At that point, PVT Kenyon reported both the sexual harassment by the drill instructor and the rape to an Army sexual assault response coordinator. This Army official advised PVT Kenyon to put the rape “on the back burner” and focus on the sexual harassment. PVT Kenyon then discussed the rape with command, who advised that the rape would be used against PVT Kenyon during promotional reviews if she sought to prosecute the rapist.

132. After PVT Kenyon reported the harassment and rape, she was ostracized and retaliated against by her fellow soldiers. This retaliation followed PVT Kenyon to her next assignment, Camp Humphreys, Korea. When she arrived, the sergeant advised her that he had received calls warning him about her. The sergeant then made a unit-wide announcement cautioning everyone that they now “should be careful who you talk to because they might report you.” The sergeant and others soldiers engaged in going sexual harassment of PVT Kenyon.

133. In spring of 2006, one soldier, a specialist and squad leader, sexually assaulted PVT Kenyon. He put his hand under her shirt on her breasts, and tried to make PVT Kenyon touch his penis. PVT Kenyon fought him off.

134. PVT Kenyon reported the assault to her Command. When required to make a statement under oath to CID, the assailant denied the sexual assault had occurred. CID administered a lie detector test, which the assailant failed. The assailant then recanted his sworn testimony and admitted that he had tried to force PVT Kenyon to have sex with him.

135. Command charged the assailant with “lying on a sworn statement” and imposed only a non-judicial punishment. The assailant was demoted two ranks, and given forty-five days of extra duty. He remained on active duty.

136. PVT Kenyon suffers from post-traumatic stress disorder.


137. Plaintiff Andrea Neutzling resides in Ohio. She is a citizen of the United States.

138. Specialist Neutzling served in the Army from 2000 until 2004, and then served in the Army reserves from August 2004 until April 2010.

139. In 2002, while serving in Korea, Specialist Neutzling was sexually assaulted by an intoxicated work colleague outside the latrine. Although Specialist Neutlzing reported the assault to Command, her assailant was sentenced to only five days of base restriction.

140. In June 2005, Specialist Neutzling deployed to Iraq and was assigned to a new Military Police unit for training. One of her fellow soldiers sexually assaulted Specialist Neutzling, but she did not report it as a result of her prior experience in reporting sexual assault to Command.

141. In August of 2005, Specialist Neutzling deployed again to Iraq. After being in country for two weeks, Specialist Neutzling was raped by two soldiers from the unit that was scheduled to depart Iraq as their unit was being replaced by Specialist Neutzling's unit. The soldiers were drunk when they raped her, and they threatened to beat her if she struggled. Specialist Neutzling suffered seriously bodily injury from the rapes, including bruises from her shoulders to her elbows from being held down. Specialist Neutzling did not report the rapes as a result of her past experience in reporting sexual assault.

142. However, when Specialist Neutzling learned that the rapists were circulating a video of the rape, Specialist Neutzling reported the rapes to Command. Command told Specialist Neutzling that they did not believe she had been raped because she “did not act like a rape victim” and “did not struggle enough.”

143. Command told Specialist Neutzling that Command from both units agreed to refrain from disclosing Specialist Neutzling's allegations of rape to the investigative services because they wanted to make sure the departing unit was permitted to go home on time. Additionally, Specialist Neutzling's Command downgraded the complaint for sexual assault to sexual harassment. Command advised Specialist Neutzling that her rapists would have had to stay in Kuwait until the investigation was complete if Command disclosed the rape outside the unit, and Command did not want to make them do so.

144. Specialist Neutzling suffers from post traumatic stress disorder.


145. Plaintiff Kristen Reuss resides in Ohio. She is a citizen of the United States.

146. Ms. Reuss served in the Ohio Army National Guard, 135th Military Police Company, from July of 1998 until July of 2004.

147. In July 2001, Ms. Reuss' commander sexually assaulted her on three occasions. The final assault occurred during an annual training session convened in Alpena, Michigan. On July 21, 2001, Ms. Reuss confided in a female lieutenant about the sexual assaults, but was reluctant to disclose the identity of her attacker. The female lieutenant implied to Ms. Reuss that she already knew who it was, and implied that he had assaulted others in the past.

148. Within hours of reporting the assault, Command arrive in Alpena, and began questioning Ms. Reuss and her colleagues. During the questioning, another female came forward admitting that the commander also sexually assaulted her. The local police jailed the commander after he failed a lie detector test.

149. Ms. Reuss' unit returned to Ohio, but Ms. Reuss was told that two charges of criminal sexual assault were filed. Shortly thereafter, she learned that the charges had been dropped. Instead, Command forced the commander to resign from the Guard.

150. Two years later, in 2003, Ms. Reuss deployed to Baghdad. She discovered that her assailant is now a Major in the Army Reserves. She also learned that he had previously been charged with domestic violence and theft.

151. Ms. Reuss suffers from depression.


152. Plaintiff Jessica Nicole Hinves resides in Virginia. She is a citizen of the United States.

153. A1C Hinves (then Day) joined the Air Force in November, 2007. She is scheduled to medically retire on April 23, 2011.

154. In January 2009, an Air Force co-worker raped her when she was serving temporary duty at Nellis Air Force base. He broke into her room through the bathroom at approximately 3am in the morning.

155. A1C Hinves reported the rape, and went to the hospital for medical care.

156. Friends of the rapist learned of the report, and began to harass A1C Hinves.

157. A1C Hinves pursued the matter through the military's judicial system, and understood that the rapist was scheduled to stand trial in his court martial on a date certain.

158. However, a few days before the court martial date, A1C Hinves' rapists' new commander dismissed the prosecution, as he is permitted to do under the military system of deference to the commanders. A1C Hinves' rapists' commander had no legal training, and had only been in his job for four days. Nonetheless, he ordered that the court martial process be abandoned.

159. A1C Hinves' rapist was given an award for “Airman of the Quarter” and A1C Hinves was transferred to another base.

160. A1C Hinves suffers from panic attacks and anxiety.


161. Plaintiff Stephanie B. Schroeder resides in Illinois. She is a citizen of the United States.

162. Private Schroeder served in the Marine Corps between 2001 and 2003.

163. On April 20, 2002, Private Schroeder was raped by a fellow Marine. She was socializing with some work colleagues, and left them to go to the restroom. The rapist followed Private Schroeder into the women's restroom, shoved her down, and started punching and hitting her until he forced her onto her back. He then ripped Private Schroeder's pants down and raped her, ejaculating on her inner left thigh. After he had raped her, he verbally berated her and spit on her.

164. When Private Schroeder got back to her base, she reported the rape to Command. Command laughed at her and said, “Don't come bitching to me because you had sex and changed your mind.”

165. Command's only “investigation” was to ask Private Schroeder's rapist if he had raped her. When he denied raping her, Command accused Private Schroeder of lying and placed her on restriction. Command told Private Schroeder that, “Shitbags like you aren't allowed to have liberty.” Command instructed Private Schroeder to remain in her room, and did not permit her to seek medical help or any type of counseling.

166. Private Schroeder shared the fact of the rape, and Command's treatment of her, with a fellow Marine. Command learned of this discussion, and accused Private Schroeder of lying and issued her a non-judicial punishment under Article 92 for “Conduct Unbecoming.” Because of this punishment she could not be promoted, and had to forfeit her pay and allowance. She was also put on restriction for two weeks.

167. Command failed to investigate or punish Private Schroeder's rapist in any way. Instead, Command forced Private Schroeder to continue to work with her rapist.

168. When Private Schroeder was transferred to a new duty location, Command called and told her new supervisors that she was a “troublemaker.”

169. Two weeks after the transfer, Private Schroeder's superior attempted to sleep with Private Schroeder. When she refused, he began to humiliate her at work. For example, when Private Schroeder contracted pink eye, he asked her in front of the entire formation if she had “Let a guy jizz in her eye.” He then permitted the formation to laugh at and mock Private Schroeder.

170. Private Schroeder reported the sexual harassment, but Command failed to investigate or punish her superiors. A month after Private Schroeder reported the sexual harassment to Command, the superior entered Private Schroeder's room without her consent while she was sleeping. He assaulted her.

171. The following morning, Command disciplined Private Schroeder for having a male in her room. She was ordered to perform menial labor throughout the night, and then work her normal duties during the day.

172. Private Schroeder moved off base because she feared for her safety. Yet a week later, Command again sought to discipline her falsely for having males in her room. When she demonstrated the impossibility of the accusation, Command reprimanded her for moving off base without permission.

173. In November of 2002, Private Schroeder was ordered to help a male Marine move some equipment to a new warehouse. She and the male Marine drove together alone in his truck. On the way there, he made a detour into the woods and attempted to have sex with Private Schroeder. When she refused, he began to masturbate in front of her. When she tried to exit the vehicle, he locked the doors. While he masturbated he said obscene things like, “Show me your tits”, “Help me masturbate” and “You masturbate for me.”

174. Private Schroeder did not report this assault because she believed it would be more detrimental to her career.

175. Private Schroder suffers from depression and anxiety.


176. Defendants Donald Rumsfeld is the former Secretary of the United States Department of Defense. His business address is 1718 M Street NW #366, Washington DC 20036.

177. Defendants Rumsfeld served as Secretary from 1975 to 1977, and again from 2001 until December 18, 2006. Defendant Rumsfeld's acts and omissions that led to this lawsuit occurred in this district.

178. Defendant Robert M. Gates is the Secretary of the United States Department of Defense. His business address is Pentagon, Arlington VA. Defendant Gates began serving as the Secretary on December 18, 2006, and continues to serve to date. Defendant Gates' acts and omissions that led to this lawsuit occurred in this district.


179. Rape and sexual assault is widespread in the military. The chart portrays the rising number of rapes and other sexual assaults:









* Change from calendar year to fiscal year reporting methods

180. Rapes and sexual assaults are widespread at the academies, which are the training grounds for the military leaders. According to the 2009 Annual Report on Sexual Assaults in the Military, there were 41 reports of sexual assault in the academies in fiscal year 2009. The Department of Defense estimated that this reported number represents less than ten percent of the actual unwanted sexual contacts. 2009 Annual Report on Sexual Assaults in the Military.

181. The Department of Defense has admitted that rape and sexual assault harms the military's readiness. As stated in the 2009 Annual Report on Sexual Assaults in the Military: “In the armed forces sexual assaults not only degrades individual resilience but also erodes unit integrity. Service members risk their lives for each other to keep fellow service members out of harm's way. Sexual assault breaks this important bond and tears apart military units. An effective fighting force cannot tolerate sexual assault within its ranks. Sexual assault is incompatible with military culture, and the costs and consequences for mission accomplishments are unbearable.” (Emphasis added.)

182. Yet as evidenced by the Plaintiffs' experiences described above, the actual rapes and sexual assaults are only the beginning. Plaintiffs suffered greatly by reporting the rapes and assaults.

183. After Plaintiffs and other victims reported the crimes against them, they were retaliated against, drummed out of the services, or, in some tragic cases, killed. For example, in 2007, Marine Lance Corporal Lauterbach was raped by a fellow Marine. When she reported the rape, “she was met with skepticism, if not outright disbelief, by her superiors and met with harassment and ostracism by her male fellow Marines....That six-month nightmare ended when she was murdered and buried in a shallow fire pit in the backyard of fellow Marine Cpl. Cesar Laurean.” See Written Statement of Merle F. Wilberding, February 24, 2010, House Committee on Oversight and Government Reform. Mr. Wilberding's Statement describes the experiences of other victims.

184. After Plaintiffs and other victims reported the crimes, they were branded “troublemakers” and deprived of any opportunities for career advancement. Many lost their security clearances as a result of seeking assistance from the military medical system to handle the emotional aftereffects of being raped and assaulted.

185. Even more importantly, Plaintiffs and other victims confronted an environment in which the perpetrators were not prosecuted. In 2007, only eight percent of those accused of rape or sexual assault were court martialed. The remainder confronted only “non-judicial punishment” or no consequences whatsoever. Commanders are permitted to make judicial decisions.

186. As a result of this hostile environment, the Department of Defense estimates that only 20 percent of servicemembers who experience “unwanted sexual contact” report the matter to a military authority. See 2009 Annual Report on Sexual Assaults in the Military. Thus, the true numbers of rape and sexual assaults are likely to be as follows:









187. After Plaintiffs and other victims reported the crimes, Command forced them to salute and otherwise show “respect” for their rapists. Plaintiffs were forced to live and work alongside their rapists, and some were put under their direct command. Plaintiffs lacked any legal right to simply quit the military or walk away from their rapists in a workplace setting.

188. The Department of Defense fails to report conviction rates from courts martial, which is critical data needed by Congress to assess whether reforms are being implemented. See February 24, 2010, Statement for the Record by the Honorable Louise M. Slaughter (D-N.Y.), submitted to the Committee on Oversight and Government Reform, Subcommittee on National Security and Foreign Affairs, for Hearing -- Sexual Assault in the Military Part IV: Are We Making Progress?

189. The Department of Defense destroys evidence gathered during forensic examination after only one year from its collection date if the victim has chosen to use the restricted reporting system. 2009 Annual Report on Sexual Assaults in the Military at 5.

190. The Department of Defense established that “restricted reporting system” in an effort to provide health care on a confidential basis to those rape and assault victims not willing to report the crimes against them, but the restricted reporting does not remain confidential. Instead, the Command learns that a report has been made, and is often able to ascertain by the description of the circumstances who made the report. 2009 Annual Report on Sexual Assaults in the Military at 11. As a result, even those who chose the restricted route because they were fearful of retaliation are subjected to retaliation. Additionally, restricted reporting limits disclosure to anyone, and denies rape and assault victims a support system.

191. Rapes and sexual assaults continue to occur at increasing rates because the top leadership - namely, the Defendants - failed to challenge the misogynistic military culture that prevented the various programs from being fully implemented. Instead, Defendants delegated the entire problem to a single small office called the Sexual Assault and Prevention and Response Office.

192. Defendants selected Dr. Kaye Whitley to head up the office. Dr. Whitley described herself in Congressional testimony as follows: “For 26 years, I was an Army wife... I worked with other spouses to build support systems, organize community events, and develop scholarship funds for military family members. I went on to get my Doctorate in Counseling and Human Development... I have since served in a variety of positions inside and outside the Department... Today I stand before you... as a woman who is passionate about the cause of caring for the victims of this crime.” But although the office director, Dr. Kaye Whitley, may be making genuine efforts to assist Plaintiffs and other crime victims grappling with after-effects of being raped, she is ill-equipped to lead an effort to eradicate a well-entrenched misogynistic military culture that permits Command to scoff at rape allegations, threaten victims with courts martial, and exercise unfettered discretion to decide to use “nonjudicial punishment” to penalize rape and sexual assault. She lacks any military rank. She lacks any law enforcement or investigatory background or authority. Neither she nor her small staff have the necessary power to force any substantial changes in the military culture.

193. The Defendants alone enjoyed the power to ensure that Plaintiffs' Constitutional rights were respected and to eliminate quickly the glaring dysfunctions in the military system of responding to reports of rape and sexual assault. As stated in the General Accounting Office's report on February 24, 2010, the Department of Defense and the Coast Guard's “successful program implementation will require the personal involvement of top DOD and Coast Guard leadership in order to maintain the long-term focus on and accountability for program objectives. Without such support, DOD's and the Coast Guard's programs will not be able to maximize the benefits of their respective prevent and respond initiatives, and they may not be able to effect the change in military culture to ensure that their programs are institutionalized.” See GAO Report entitled “DOJ's and the Coast Guard's “Sexual Assault Prevention and Response Programs Need To Be Further Strengthened.”

194. Only Defendants had and have the power and position to change the military culture that permits widespread rape and sexual assaults. Neither Defendant used their power and position to do so. By repeatedly failing to do so, they violated Plaintiffs' Constitutional rights.

195. Defendants know that servicemembers were being forced to work daily side-by-side with their rapists. Defendants know that servicemembers cannot move to another apartment or another city, but can be and are forced to live in the same quarters as their rapists. Defendants know that servicemembers cannot take any personal action that civilians might take to protect themselves from an ongoing threat - call the police, go to a shelter, change housing or jobs, or even get out of town. Defendants know that servicemembers were being ordered to keep quiet. Thus, Defendants were well aware that their personal failures to tackle the systemic issues were leading directly to Constitutional deprivations of life, liberty, due process, equal protection and the right to free speech.


196. Defendant Rumsfeld violated Plaintiffs' constitutional rights by failing to take reasonable steps to prevent Plaintiffs from being repeatedly raped, sexually assaulted and sexually harassed by federal military personnel, and by impeding Plaintiffs' exercise of their First Amendment rights.

197. In 2002, Defendant Rumsfeld was advised by the Veterans Administration that twenty percent of female veterans had been subjected to sexual assaults inflicted by their fellow soldiers.

198. In 2004, Congress passed Public Law 105-85, which required the Secretary of Defense to establish a commission to investigation policies and procedures with respect to the military investigation of reports of sexual misconduct. Defendant Rumsfeld ignored this Congressional directive and failed to appoint any members of the commission. Defendant Rumsfeld resigned without having appointed any members of the task force, and without directing the task force to begin its work.

199. On March 31, 2004, Members of Congress wrote to Defendant Rumsfeld expressing concern that then-Secretary of Defense Rumsfeld had ignored the recommendations made in 18 reports issued over the previous 16 years. The Members stated, “[w]e are concerned that the problem of sexual misconduct in the military is repeatedly investigated, but recommendations for substantive change in the reports are often ignored.” Reasonable discovery will show that Defendant Rumsfeld expressed scorn and derision towards Congressional efforts to eradicate sexual assault in the military. Defendant Rumsfeld's inaction sent a message that the military was resisting efforts Congressional oversight efforts designed to change a military culture where rape, sexual assault and sexual harassment were not prosecuted or otherwise deterred.

200. Defendant Rumsfeld repeatedly permitted military Command to rely on the Article 15 (nonjudicial punishment) process for allegations involving rapes, sexual assaults, and sexual harassment.

201. Defendant Rumsfeld repeatedly permitted military Command to interfere with the impartiality of criminal investigations.

202. Defendant Rumsfeld repeatedly permitted the military Command to charge those alleged to have raped or sexually assaulted a co-worked under UCMJ Article 134 (adultery) rather than under Article 120 (rape).

203. Defendant Rumsfeld repeatedly ensured that the military, not the civilian authorities, investigated and prosecuted charges of rape and sexual assault. Defendant Rumsfeld did so knowing that the military judicial system prosecutes only eight percent of those alleged to have engaged in rape or sexual assault, as compared to the civilian system, which prosecutes forty percent of those alleged to be such perpetrators.

204. Defendant Rumsfeld permitted eighty percent of those military personnel convicted of sex crimes to be honorably discharged from the military and receive their full retirement benefits.

205. Defendant Rumsfeld repeatedly permitted military Command to retaliate against those service members who reported being raped, assaulted and harassed. Reasonable discovery will show that Defendant Rumsfeld did not make any efforts to eliminate retaliation against servicemembers who reported being raped, assaulted and harassed.

206. Defendant Rumsfeld authorized acceptance of recruits who have been arrested or convicted of domestic violence and sexual violence through a process of “moral waivers,” because such recruits could not have enlisted under the minimum requirements without such a waiver. The Lautenberg Amendment to the Gun Control Act makes it a felony for anyone convicted of a crime of domestic violence to ship, receive or possess firearms or ammunition. The Amendment does not provide any exception that permits the military or law enforcement to ignore its prohibitions. Yet Defendant Rumsfeld knowingly granted “waivers” that permitted individuals convicted of domestic violence-related charges to join the services and carry weapons. See Department of Defense Task Force on Domestic Violence: Initial Report 53 (2001). Defendant Rumsfeld intentionally permitted such felons to serve in the military, which sent a clear message to his subordinates that preventing sexual violence was not a high priority.

207. Reasonable discovery will show that Defendant Rumsfeld permitted military personnel on duty to ridicule both male and female subordinates by using sexually-charged and offensive terms such as slut, fucking whore, cunt, pussy, bitch, dyke, faggot and fairy.

208. Defendant Rumsfeld's acts and failures to act during his tenure as Secretary of Defense led to a dramatic increase in the number of rapes and sexual assaults among active duty servicemembers.

209. By the year of his resignation (2006), Defendant Rumsfeld's acts and failures to act had led to a twenty-four percent increase in the rate of rapes and sexual assaults when compared to the prior year (2005).


210. Defendant Gates violated Plaintiffs' constitutional rights by failing to take reasonable steps to prevent Plaintiffs from being repeatedly raped, sexually assaulted and sexually harassed by federal military personnel, and by impeding Plaintiffs' exercise of their First Amendment rights.

211. Defendant Gates repeatedly permitted military Command to use nonjudicial punishment for rapes, sexual assaults, and sexual harassment, and to otherwise interfere in impartial investigations. Reasonable discovery will show that Defendant Gates did not make any efforts to eliminate the use of nonjudicial punishment and Command interference into investigations.

212. Defendant Gates repeatedly permitted military Command to retaliate against those servicemembers who reported being raped, assaulted and harassed. Reasonable discovery will show that Defendant Gates did not take reasonable steps that should have been taken to eliminate retaliation against servicemembers who reported being raped, assaulted and harassed.

213. Defendant Gates interfered with and opposed Congressional directives designed to eliminate rape and sexual assault in the military. In July 2008, the Congressional House Oversight Committee on National Security and Foreign Affairs subpoenaed Dr. Kaye Whitley to testify on July 31, 2008, about her office's efforts to eradicate sexual assault. Defendant Gates and his subordinates directed Dr. Whitley to ignore the subpoena, which she did. As stated by the Chair of the Committee at the subsequent hearing, “But what kind of a message does her and the Department's unwillingness until now to allow testimony send to our men and women in uniform? Do they take Dr. Whitley's office seriously? Is she being muzzled, or is the Department hiding something?” See Hearing on Sexual Assault in the Military - Part II, Subcommittee on National Security and Foreign Affairs, Serial No. 110-188 (September 10, 2008).

214. Defendant Gates failed to ensure that the Department met its statutorily-mandated deadline of January 2010 for implementing the database prescribed by the National Defense Authorization Act for Fiscal Year 2009. The Department was required to develop a database that would centralize all reports of rapes and sexual assaults. To date, the database still does not exist. There is no legal justification for Defendant Gates' failure to abide by the law.

215. As reported on by the Washington Post on November 26, 2010, Defendant Gates and his subordinates ignored the competitive procurement process for contracting, and instead selected an inexperienced and tiny firm known as US2 to receive the $250 million contract designed to implement the Army's obligations to prevent sexual assault and harassment. Prior to being selected without any competition for the sexual assault work, US2 had only three employees and several small contracts for janitorial work.

216. Defendant Gates' failures to act during his ongoing tenure as Secretary of Defense led to a steady and dramatic increase in the number of rapes and sexual assaults among active duty servicemembers. In 2008, the rate of rapes and sexual assaults within the active duty military increased by nine percent compared to the rate in 2007. In addition, the 2008 rate of rapes and sexual assaults against servicemen and servicewomen serving in combat areas (primarily Iraq and Afghanistan) rose by twenty-five percent compared to the rate in 2007. In 2009, the rate of rapes and sexual assaults within the active duty military increased by eleven percent compared to the rate in 2008, with a sixteen percent increase in the rates of rape and sexual assault among those deployed to combat areas.

217. Defendant Gates is well aware that the military continues to retaliate against those who report rape, sexual assault and sexual harassment. The annual report published on August 24, 2010, admitted that military personnel refrain from reporting rape and sexual assault because doing so is perceived as having “lasting career and security clearance repercussions.”


218. The preceding paragraphs are hereby incorporated in full by reference.

219. Plaintiffs possess a right to bodily integrity under the Fourteenth Amendment.

220. Defendants condoned a culture which allowed sexual harassment, sexual assault and rape.

221. Defendants' actions and failures to act violated Plaintiffs' substantive due process rights.


222. The preceding paragraphs are hereby incorporated in full by reference.

223. Defendants failed to implement military and federal regulations regarding sexual harassment, rape and sexual assault.

224. Plaintiffs were denied justice, unfairly terminated and otherwise mistreated merely because they were victims of sexual assault, rape or sexual harassment.

225. Plaintiffs were deprived of an individual liberty interest that is encompassed within the Fourteenth Amendment's protection of life, liberty and property.

226. Defendants' failure to implement military and federal regulations regarding sexual harassment, rape and sexual assault violated Plaintiffs' procedural due process rights.


227. The preceding paragraphs are hereby incorporated in full by reference.

228. Plaintiffs have a right to be free from rape, sexual assault and sexual harassment under the Fourteenth Amendment.

229. Defendants subjected Plaintiffs to a pattern of sexual harassment, rape and sexual assault, failed to protect servicewomen and servicemen from rape, sexual assault, and sexual harassment; failed to conduct proper investigations and prosecute offenders; retaliated against servicemembers who reported being raped, harassed or sexually assaulted; discriminated on the basis of gender; and encouraged a culture of sexism and misogyny.

230. Defendants violated Plaintiffs' right to equal protection under the Fourteenth Amendment.


231. The preceding paragraphs are hereby incorporated in full by reference.

232. Plaintiffs possess a right under the First Amendment to report sexual assault, sexual harassment and rapes without suffering retaliation, including adverse employment actions

233. Defendants harmed Plaintiffs by retaliating against them when they exercised their First Amendment rights to speak about being raped, sexually assaulted or sexually harassed.


Plaintiffs request a Jury Trial.


Defendants repeatedly and systemically violated Plaintiffs' Constitutional rights. Plaintiffs seek compensation for their injuries, attorney's fees and costs, and such other relief as the Court and Jury deem just and proper.

/s/Susan L. Burke

Susan L. Burke (VA Bar No. 27769)

Counsel for Plaintiffs


1000 Potomac Street, N.W.

Washington, DC 20007-1105

Telephone: (202) 386-9622

Facsimile: (202) 232-5513

Date: February 15, 2011

A new publication about international education and student mobility from IIE

Dear Colleagues,
The Institute of International Education (IIE) is pleased to announce the
release of a major new publication:
Student Mobility and the Internationalization of Higher Education: National
Policies and Strategies from Six World Regions.
The book, available for purchase at IIEBooks, provides an extensive look at
what 17 countries are doing at the national, institutional and university
level to attract more international students to their higher education
institutions and to send more of their students abroad.

According to OECD, over 3.3 million students are currently studying outside
of their own country, a 65 percent increase since 2000. While international
mobility among students and scholars is not a new phenomenon, new trends
have emerged in the last decade and continue to shape a rapidly changing
landscape in international higher education. To assess these dynamic trends,
Student Mobility and the Internationalization of Higher Education draws upon
the members of Project Atlas, a unique global community of host country
partner organizations and research affiliates organized by IIE ten years ago
with funding from the Ford Foundation.
Today Project Atlas represents 21 national-level governmental,
non-governmental, and international organizations engaged in international
education research and exchange, sharing harmonized and current data on
student mobility. The project is currently supported by the Bureau of
Educational and Cultural Affairs of the U.S. Department of State and each
member organization.
Student Mobility and the Internationalization of Higher Education is divided
into six sections by world region: Sub-Saharan Africa, The Americas, Asia,
Europe, Oceania and the Middle East/North Africa. Each of the country
reports is authored by a Project Atlas partner, reflecting their in-depth
knowledge of that country's internationalization strategies: the chapters
include reviews of current polices and the most recent student mobility
Some regional trends highlighted and expanded upon in the book include:

- Africa: The number of students studying in Africa from outside of the
region is much smaller than the number of outbound African students. Among
African countries, South Africa is the leading host destination.
- The Americas: After Europe, the Americas host the largest number of
international students, but have a low outbound mobility ratio compared to
other world regions.

- Asia: While many countries in the region have experienced "brain drain" in
the past, a number of Asian countries have recently emerged as important
higher education destinations, attracting large numbers of students from
within the region and from Europe and North America.
- Europe: Some European countries are prioritizing the retention of local
talent, while others aim to continue to internationalize universities by
recruiting students from Europe and other regions.

- Oceania: In Australia and New Zealand, the largest host countries in the
region, the enrollment of international students as a percentage of total
higher education enrollments is the highest in the world.

- Middle East/North Africa: Today, the Middle East is the leading host
region of branch campuses of foreign universities, and has seen the opening
of new world-class institutions.

For more information or to purchase the book, please visit:

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This message is a service of IIE Network

Sunday, February 27, 2011

Muslim comedian asks...

...what if Loughner were a Muslim?

Ann Coulter says the presidency is beneath Sarah Palin

“She is so huge right now, she has so much power, she sends out a Twitter on death panels and she shuts down the healthcare debate. It would be a step down for Sarah Palin to run for President…It’s like saying should Rush Limbaugh run for President. No, I think Rush should keep doing what he’s doing, I think you should keep doing what you’re doing. I think Sarah Palin should keep doing what she’s doing. I don’t think she’s going to run." --- Ann Coulter

Coulter should know. She pumps out books like a flock of honking geese pump poop.

Of course, like Palin, Coulter has her critics:

Assange apparently will be shipped off to Sweden

This from Fox News:

LONDON -- Julian Assange can be extradited to Sweden in a sex crimes inquiry, a British judge ruled Thursday, rejecting claims by the WikiLeaks founder that he would not face a fair trial there. Assange's lawyer said he would appeal.

Read more:

© 2011 Sweet & Maxwell

Article - Newspaper

Assange should be extradited over sex charges, says judge
Alexi Mostrous
Times, February 25, 2011, 15. Also reported in Financial Times, February 25, 2011, 4; Independent, February 25, 2011, 7; Guardian, February 25, 2011, 3; Daily Telegraph, February 25, 2011, 12
Subject: Criminal Justice - Extradition
Keywords: Extradition; Extradition requests; Sexual offences; Sweden

Abstract: Judge Howard Riddle has ruled WikiLeaks founder Julian Assange can be extradited to Sweden to face allegation of sex offences. Lawyers for Mr Assange, who immediately announced he would appeal the decision, said the case raised a number of points susceptible to Supreme Court discussion.

Julian Assange must face rape charges in Sweden, rules court
February 24, 2011 by Adam Wagner

Julian Assange, the founder of the whistle-blowing website Wikileaks, must face charges of sexual assault and rape in Sweden, the chief magistrate Howard Riddle has ruled.

The case will almost certainly be appealed, so in reality there may not be a final decision for many months. Assange has a right of appeal on law or fact to the High Court under section 26 of the Extradition Act 2003. Assange has 7 days to appeal, but otherwise the extradition would usually take 10 days to execute.
The Law of Extradition in the UK

City of Westminster Magistrates’ Court

(Sitting at Belmarsh Magistrates’ Court)

The judicial authority in Sweden

Julian Paul Assange

Findings of facts and reasons

Mr Assange has been arrested on an EAW issued by Ms Marianne Ny, a judicial authority in Sweden
(represented by Miss Clare Montgomery QC and Miss Gemma Lindfield) for the surrender of Mr Julian Assange
(represented by Mr Geoffrey Robertson QC and Mr John Jones). Sweden is a category 1 territory for the
purposes of the 2003 Extradition Act and this hearing is considered under Part 1 of the Act. The extradition is

Procedural background

The initial hearing was before me on 7th December 2010. Preliminary issues including service of the warrant and
identity were not in dispute. This extradition hearing was opened by me at the City of Westminster on 7th
December 2010 and adjourned after one further hearing to 7th and 8th February 2011 for a full hearing. The
hearing was transferred to Belmarsh where there are better facilities to accommodate the press interest in the
case. Although the evidence concluded on 8th February, there was insufficient time for final submissions. A
further half day was set aside for those submissions on Friday 11th February. On that occasion there was an
application by the defence for more time to provide evidence about events in Sweden that had occurred since 8th
February. For reasons I gave at the time, that application was refused and the hearing concluded. I adjourned to
consider and to prepare these reasons.

The evidence

Most of the evidence was in written form in a large ring binder that eventually included over 20 tabs. This was
supplemented by live evidence from four witnesses who all took the trouble to attend from Sweden. I was very
grateful to them for coming. Unusually, and because we were at Belmarsh, it was possible to record and then
transcribe their evidence. That transcript is available from WordWave International Ltd. In the circumstances I
can summarise the evidence more briefly than might otherwise be the case.

I heard live evidence on 7th February 2011 from Brita Sundberg-Weitman. She is a Swedish lawyer, a former
judge, and a distinguished jurist. At one time she served on the Svea Court of Appeal (a court that features in
these proceedings). She gave evidence in commendably fluent English with the occasional assistance of the
interpreter. She adopted her Expert Report. She is of the opinion that proper procedures, according to Swedish
law and stated policy, have not been followed in this case. She says that the use of the EAW under European
law is disproportionate. She says the handling of the case has been improper in a number of respects. Those
defects are set out in detail in her report, and I will not repeat them in full here. In short, the complaints in the
report and in live evidence are:

. The first prosecutor confirmed details of the allegations to a tabloid newspaper, which breaches
confidentiality but is not unlawful.

. Ms Ny allowed an appeal against the initial decision not to prosecute (which is permissible in
Swedish law but unfair as Mr Assange was not allowed to make submissions).

. The complainant’s lawyer, Mr Borgstorm, has been critical of Mr Assange in the press saying
he is a coward for not returning to Sweden.

. The prosecutor Ms Ny is “biased against men and takes for granted that everyone prosecuted is
guilty... She is so preoccupied with the situation of battered and raped women that she has lost
her balance”. Ms Ny is in favour of locking up innocent men.

. Ms Ny did not arrange for questioning to take place in a more appropriate way, for example by
Mutual Legal Assistance: “It looks malicious.”

. There is an improper motive behind the issue of the EAW. The real motive is that Mr Assange
is outside Sweden and Ms Ny wants to arrest him immediately after he is interviewed,
regardless or what he says. “That may be her approach. Let him suffer for a bit so he can be a
bit softer.” “Everything is peculiar. The case is not proceeding normally.”

. Using the EAW is disproportionate.

. The EAW has not been issued for prosecution, but for the purposes of enforcing the order for
detention referred to at box (b) of the EAW. The prosecutor has repeatedly stated that she has
obtained the warrant to question Mr Assange. This is simply a Preliminary Investigation which
is defined in the code and ends before a decision to prosecute is taken.

. Ms Ny is not the proper issuing judicial authority.

. There are political considerations behind this prosecution. The issue of sexual offences is very
political in Sweden.

. The rape trial will take place behind closed doors. The trial will include lay members who have
been politically selected.

In cross-examination the witness told me she is not an expert in Mutual Legal Assistance. She confirmed that
she had no direct personal knowledge of what happened in this investigation before Mr Assange left Sweden.
Her evidence is based upon the facts supplied to her by the defence lawyers. [In her proof she said Ms Ny had
made no effort to interview him before he left with her permission and knowledge on 27th September.] She
confirmed that if the defence lawyer had told the prosecutor that he was unable to contact the defendant for
interview, then the position would be different. “It would be a different case. However it didn’t happen like
that”. When what Ms Ny told the Svea Court of Appeal was put to the expert she said she did not know that.

She agreed that before a Swedish court can issue a domestic warrant it must be satisfied that there is a “probable
cause” but she can’t imagine how the court reached that view in this case. After some difficulty understanding
the questions the witness accepted that the Svea court did not think issuing the warrant was disproportionate.
She said that most Swedish lawyers believe the question as to whether something is disproportionate is simply a
matter of intuition, which it is not. “It is obvious that they [the court] are wrong”. “I can’t believe they have
examined the case on the principle of proportionality”. She then accepted that the Court of Appeal would have
heard from Ms Ny and Mr Hurtig, the lawyer for Mr Assange. Again there was some confusion as to the
questions and answers and the witness at first appeared to say the defence were not represented but later she
said, after being referred to the decision of the court, that this document says Mr Hurtig was present, but she
doesn’t think he was. Overall the witness appeared unclear as to whether Mr Hurtig and the Court of Appeal
had access to the evidence in the case. She suggested that the prosecution might have been economic with
information. She was asked direct questions as to whether the court would decide whether this defendant
should be on bail, if returned to Sweden. At first she appeared to avoid the question but did say that this is a
matter for the court, with a right to appeal if bail is refused. However she has little confidence in the Swedish
system which “has decayed since the mid-1970s. The judges are totally different types now. If I was prosecuted
I would not choose a chief judge.” She suggested that judges have less independence now that their salary is
decided by the chief judge. She then added that: “almost all Swedish lawyers think we have the best system in
the world”, but they are wrong. The decision as to whether the trial would take place in private would be made
by the court. However she knows of no case where a rape trial has taken place in public. Article 6 has been
incorporated into Swedish law. She agreed that after the case the judge decides whether evidence will be
published, but suggested that only the court’s conclusion must be published.

The witness was further cross-examined about the authority to issue the EAW. Again she had difficulty directly
answering the question. However she did eventually say that if the decision to prosecute has been made then Ms
Ny is entitled to issue the EAW. She then referred to the decision to prosecute, for which the Swedish is
“Atalsbeslut”. When pressed as to the decision to issue an arrest warrant and what it involves she said: “I may
be wrong”. When further matters about the EAW and the framework decision were put to her she said “I am
clueless. I don’t know. I have no firm opinion. [as to the points that must be reached before a prosecutor issues
an EAW for the purpose of prosecution].”

She was then asked about her strong criticism of Ms Ny. She doesn’t know her personally but it is the witness’s
view that the prosecutor is malicious. That is based on what she has said. She was then referred to the one
example that she had exhibited to demonstrate that malice. This is from an article entitled “Securing evidence
quickly is important for prosecutors” at page 13 behind tab 9. She was taken through the early paragraphs and
accepted that there was nothing really wrong with what was said there. She was then taken to the main passage
of which complaint was made, where it says: “Marianne Ny is of the opinion that such proceedings (criminal
prosecutions) have a beneficial effect in protecting women, even in cases where perpetrators are prosecuted but
not convicted”. She appeared to understand this passage as saying that everyone who is prosecuted is guilty and
had difficulty in accepting that another interpretation is simply that there are occasions when a man is prosecuted
and, for whatever reason, acquitted even though he may have been guilty. She did not appear to accept that
there is a public interest in prosecuting, where the evidence justifies prosecution, even if the case results in an
acquittal. It appears that the witness’s main objection to the paragraph quoted was a reference to “perpetrators”
on the basis that the word is objectionable and biased.

She was then asked what material she has to justify the conclusion that Ms Ny “is a well-known radical feminist”.
She did not produce any further evidence to substantiate that conclusion and thought it was well known. It was
suggested to her that the nature of Ms Ny’s job, child protection and prosecution of sex crimes against women,
justified her taking a stand on crimes against women. It was not clear whether she accepted this proposition

She was then re-examined and confirmed, in effect, the evidence she had given in chief, for example about the
appropriateness of arranging interviews abroad. She said she is not an expert on extradition. The prosecution in
this case was entitled to apply for an arrest warrant under Swedish law. The defendant can ask for a public trial.
The judge decides. However it is rarely, if ever, that such a trial takes place in public. She was asked about press
cuttings relating to Ms Ny, which are in the bundle. She had read them.

There is no doubt in my mind that Brita Sundberg-Weitman has had a very distinguished career as a judge and as
a jurist. In her time she was no doubt a highly respected expert on many aspects of Swedish criminal law. She
had taken a particular interest in European law, and in civil rights. She clearly now finds herself out of sympathy
with the Swedish judicial system. She believes it to be unfair. It is perhaps unfortunate that in her report she did
not mention that her opinions are not universally accepted. Similarly, one might have expected a clearer
statement in her report that some of her evidence was based on what she had been told by defence lawyers, as
opposed to independent sources, although she readily revealed that in cross-examination. Nevertheless I was
very grateful to her for attending court to give evidence.

Also on 7th February 2011 I heard live evidence from Mr Goran Rudling. Again he adopted his proof and
confirmed it in live evidence. I need not repeat his evidence in detail here. He promotes law reform in relation
to sexual offences. Swedish law does not offer sufficient protection for rape victims. He has followed this case
and discovered that one of the complainants has deleted Tweets that are inconsistent with her allegations. He
passed this on to the police but became increasingly concerned that nothing was being done about his reports.
Later he was in direct contact with the complainant, who has now removed most of her post about revenge.
The police interviews with the complainants do not follow good practice. The complainants and the
interviewing officer are all active members of the Social Democrat Party. He also explained the difficulty in
Sweden demonstrating the difference between consenting to something and wanting something. He told me
that the police file in this case had been publicly available on the Internet. It was suggested to him that the
material he saw on 31st January was a copy of the material sent to Mr Assange, but leaked after it reached the
office of his London lawyer, and he appeared to agree.

Sven-Eric Alhem gave evidence the next day, 8th February. He too adopted his expert report and his evidence
has been transcribed and need not be repeated in detail here. Mr Alhem retired in July 2008 after a legal career
as a prosecutor, including serving as the Chief District Prosecutor in Stockholm and later as Director for the
Regional Prosecution Authority in Stockholm. Since 2008 he has seen himself primarily as a social commentator
on legal matters. He was concerned that the proper procedures had not been followed in Mr Assange’s case in
Sweden. The prosecution should not have confirmed to the media that Mr Asange was considered a likely
suspect of rape. That disclosure was unlawful. He was surprised that this defendant had not been detained in
custody pending the investigation into the rape allegation. In his view good prosecution practice requires a very
early interview with the suspect. It is an imperative for the accused to have the opportunity to respond to the
accusations at the earliest possible time when he still remembers the intimate details. Thus it was quite wrong, in
his view, for the prosecutor Ms Ny to decline the opportunity to interview Mr Assange. He believed that to
issue the European Arrest Warrant without having first tried to arrange an interrogation in England at the
earliest possible time via a request for Mutual Assistance offended against the principle of proportionality. A
prosecutor should not seek to arrest and extradite Mr Assange simply for the purposes of questioning as long as
other means have not been tried, or have been tried and failed. The defendant is not accused: he is a suspect.
He has not been indicted. He was taken to section 18 of the Swedish Appeal Code (page 58). The golden rule is
that a party should be heard. Until then he should not be prosecuted. The last thing that happens in a
preliminary investigation is that the suspect has the right to see all material and the opportunity to comment.
He said that rape trials in Sweden are normally heard privately. He believes it is necessary to balance the integrity
of the injured party against the principle of openness. Both parties might think it is a good thing that the whole
trial is heard behind closed doors.

In cross-examination he said his understanding of the steps taken to interview Mr Assange comes from what he
was told by Mr Hurtig, the Swedish defence lawyer, and what he has read. [In his proof Mr Alhem said that
“according to the information given to me, Prosecutor Ny declined the opportunity to interview Mr Assange
after she took over the case on 1st September, despite the fact he remained in Sweden until 27th September 2010
… I understand that the prosecutor declined the offer to meet for an interview simply because the police officer
at the time was sick … it is catastrophic that so much time has passed without a very detailed interrogation
having taken place.”] He had not read the documentation put before the Stockholm District Court and the
Court of Appeal. He had not seen the statements of Mr Hurtig or Ms Ny. The account given by Ms Ny as to
the factual steps taken to interview Mr Assange were put to him. “I make no judgement between Mr Hurtig and
Ms Ny.” He added that he saw his role as giving a judgement on the ECHR, the legal issues and fairness. There
is nothing wrong with the EAW issued for Mr Assange. If it was the case that it was not possible to hold the
interrogation hearing with the suspect earlier then he too, when he was a prosecutor, would have issued the
EAW. However he would have first tried to arrange the interrogation hearing in another way. He agreed that
the evidential question as to the steps taken to interview Mr Assange is relevant and that he should have seen the
relevant documentation before expressing his view. However even if Ms Ny’s account, which he heard in court
today for the first time, is correct then that does not change his view that an interrogation should have taken
place in England. He made it clear that the statement of Ms Ny does not correspond with the information he
had been given by Mr Hurtig. Ms Ny “is allowed to seek an EAW – there is no doubt about that”. On the
account given by Ms Ny it would have been a reasonable reaction to apply for an EAW. “Certainly, I would have
done the same myself”.

It is a decision for the Swedish court whether a defendant is held in custody and if so whether it should be
incommunicado. The failure to hold public hearings has not led to appeals to the court of appeal or to
Strasbourg, as far as he can remember. Nevertheless it has caused debate.

He was then asked about extradition from Sweden to the United States. He is not an expert on what happens
but had brought a Guide and had considered the specialty principle. His reading was that normally there could
not be a further surrender to a country outside the European Union but there are exceptions. It would be
“completely impossible to extradite Mr Assange to the USA without a media storm”. It is quite right to say that
he would not be extradited to the USA.

Overall I was left with the impression of a sincere witness doing his best to help the court. He relied on Mr
Hurtig for his information as to the attempts made to interview Mr Assange. His strongest criticism was based
on the information that no attempt had been made to interview the suspect while he was still in Sweden.
However, even on Ms Ny’s account he was critical of the decision not to arrange an interview in the UK.

Mr Bjorn Hurtig gave evidence from before lunch until the end of the day. Again I need not set out his evidence
in full. He is an experienced Swedish criminal trial lawyer and the defence counsel for Mr Julian Assange in
relation to the criminal investigation against him in Sweden.

His proof of evidence states that the manner in which Ms Ny has handled the case thus far is not in compliance
with the concept of a fair trial. Any trial will be behind closed doors. The trial will be heard by a judge and three
lay judges. The lay judges are appointed by political parties. There is significant prejudice because of trial by

His main complaint is levelled at the investigation conducted by Marianne Ny. “It is well known, and is in fact
stated in the Prosecution Manual and the received wisdom of prosecutors, that rape cases must be investigated
quickly, among other things because the defendant is almost always put into custody in this kind of case.
Sensibly, a new statement was taken from the rape complainant at Ms Ny’s direction on 2nd September.
However, astonishingly she made no effort to interview him on the rape charge to get his side of the story”. Mr
Hurtig gives a detailed account in his proof about his involvement in the case and the attempts he made to
persuade the prosecutor to question Mr Assange as soon as possible. The lawyer was left with the impression
that the rape case may be closed “without even bothering to interview him. On 27th September 2010, Mr
Assange left Sweden”. While the defendant was abroad the defence offered him for interview in the week of 11th
October, but the prosecutor vetoed the suggestion because “it was too far ahead”. “I found it astonishing that
Ms Ny, having allowed five weeks to elapse before she sought an interview with Mr Assange should now decide
that it would be too late to hear his story if a further week elapsed”. He then describes the fairly continuous
dialogue with the prosecutors’ office voluntarily offering to undergo interrogation in a number of ways from
London, all of which were refused.

The lawyer also complained that it is now difficult for his client to receive a fair trial as he had not been provided
with all the evidence against him, including important exculpatory evidence. He gives as an example the witness
Goran Rudling, from whom the court had heard the previous day. He only knows this evidence because Mr
Rudling has contacted the defence. Such evidence as he has seen has not been translated into English. He also
gave evidence that the European Arrest Warrant is for “lagforing” which means legal process and does not
properly translate into English as “for the purposes of conducting a criminal prosecution”. He says that the
prosecutor has consistently and repeatedly said that she has not yet decided whether to prosecute. They only
want to hear his side of the story. He went on to give evidence about the law in Sweden as it relates to sexual
crimes. Under Swedish law a prosecutor may investigate the case and even bring it to trial, where there is no, or
no sufficient, evidence of lack of consent.

The lawyer gave live evidence covering in some detail the attempts made to secure an interview with his client.
On 15th September Ms Ny told him there were no “force measures” preventing Julian leaving the country, i.e. he
was allowed to leave. He asked when his client would be interrogated but was told the officer she needed for the
investigation was sick. He phoned his client to say he was free to leave the country to continue his work. His
client was worried that he may be difficult to get hold of, so they agreed that when he had found a stable place
he would contact his lawyer. On 22nd September he received a text message from Marianne Ny saying that she
wanted to interrogate Julian Assange on 28th September. “I could not get hold of Julian, which I told Marianne
on 27th September.” He was able to speak to his client on 29th September and Mr Assange offered to return on
Saturday 9th October for interrogation. Eventually this proposal was not accepted as the dates were too far away.
He gives details about a proposal to hold an interrogation on 6th October, which he believes was because the
police thought his client would be in Sweden then giving a lecture. That information was leaked to him. On 8th
October Mr Hurtig suggested a telephone interrogation, but this was refused. He provided further detail about
the evidence he had seen on 17th November and on 18th November before the detention hearing which was
decided on 24th November. However there was nothing in English. He was allowed to read text messages but
not allowed to make notes or copy them. The text messages were “not good for the claimants and spoke of
revenge”. They also spoke of gaining money from Julian Assange. The complainant’s statement is confidential.
Therefore Mr Hurtig sought the advice of the prosecutor and then the Bar Council before disclosing it. He was
advised that he could. In the statement the alleged victim of the rape allegation said she was half-asleep at the
time. That is very different from the allegation in the EAW.

In cross-examination the Swedish lawyer confirmed that paragraph 13 of his proof of evidence is wrong. The last
five lines of paragraph 13 of his proof read: “in the following days [after 15th September] I telephoned [Ms Ny] a
number of times to ask whether we could arrange a time for Mr Assange’s interview but was never given an
answer, leaving me with the impression that they may close the rape case without even bothering to interview
him. On 27th September 2010, Mr Assange left Sweden.” He agreed that this was wrong. Ms Ny did contact
him. A specific suggestion was put to him that on 22nd September he sent a text to the prosecutors saying “I
have not talked to my client since I talked to you”. He checked his mobile phone and at first said he did not
have the message as he does not keep them that far back. He was encouraged to check his inbox, and there was
an adjournment for that purpose. He then confirmed that on 22nd September 2010 at 16.46 he has a message
from Ms Ny saying: “Hello – it is possible to have an interview Tuesday”. Next there was a message saying:
“Thanks for letting me know. We will pursue Tuesday 28th at 1700”. He then accepted that there must have
been a text from him. “You can interpret these text messages as saying that we had a phone call, but I can’t say
if it was on 21st or 22nd”. He conceded that it is possible that Ms Ny told him on the 21st that she wanted to
interview his client. She requested a date as soon as possible. He agrees that the following day, 22nd, she
contacted him at least twice.

Then he was then cross-examined about his attempts to contact his client. To have the full flavour it may be
necessary to consider the transcript in full. In summary the lawyer was unable to tell me what attempts he made
to contact his client, and whether he definitely left a message. It was put that he had a professional duty to tell
his client of the risk of detention. He did not appear to accept that the risk was substantial or the need to
contact his client was urgent. He said “I don’t think I left a message warning him” (about the possibility of
arrest). He referred to receiving a text from Ms Ny at 09.11 on 27th September, the day his client left Sweden.
He had earlier said he had seen a baggage ticket that Mr Assange had taken a plane that day, but was unable to
help me with the time of the flight.

Mr Hurtig was asked why he told Brita Sundberg-Wietman that Ms Ny had made no effort to interview his
client. He denied saying that and said he has never met her. He agrees that he gave information to Mr Alhem.
He agrees that where he had said in his statement (paragraph 51) that “I found it astonishing that Ms Ny, having
allowed five weeks to elapse before she sought out interview”, then that is wrong. He had forgotten the
messages referred to above. They must have slipped his mind. There were then questions about DNA. It was
suggested to him that a reason for the interrogation taking place in Sweden was that a DNA sample may be
required. He seemed to me to at first agree and then prevaricate. He then accepted that in his submissions to
the Swedish court he had said that the absence of DNA is a weakness in the prosecution case. He added “I can’t
say if I told Ms Ny that Julian Assange had no intention of coming back to Sweden”. He agrees that at least at
first he was giving the impression that Mr Assange was willing to come back. He was asked if Julian Assange
went back to Sweden and replied: “Not as far as I am aware”.

In re-examination he confirmed that he did not know Mr Assange was leaving Sweden on 27th September and
first learned he was abroad on 29th. He agreed that the mistakes he had made in his proof were embarrassing
and that shouldn’t have happened. He also agreed that it is important that what he says is right and important
for his client that his evidence is credible.

The witness had to leave to catch a flight. Miss Montgomery said that there were further challenges she could
make to his evidence, but thought it unnecessary in the circumstances. That was accepted by the court after no
point was taken by Mr Robertson. The witness was clearly uncomfortable and anxious to leave.

Summary of facts found

I make the following findings of fact from the evidence I have heard:

1. The proceedings in Sweden are at the preliminary investigation stage. The preliminary
investigation does not come to an end until evidence is served on Mr Assange or his lawyer and
there is an interrogation of Mr Assange with the opportunity for further enquiries. Thereafter
there is a decision as to charge. If charged the trial is likely to take place shortly thereafter.

2. In Sweden, a person interrogated for rape is normally detained and held incommunicado during
the process. These decisions are taken by a court.

3. The original decision by a prosecutor not to proceed with sexual assault allegations against Mr
Assange was overruled by a more senior prosecutor, Ms Ny. This process is provided for in the
Swedish system, but is thought by some to be unfair, especially as Mr Assange would not be
entitled to make representations before the review decision was made.

4. Mr Assange had been interviewed about the sexual assault allegations before Ms Ny took over
the case. The fact that he was being treated as a suspect was leaked to the press, probably by
the first prosecutor (not Ms Ny) and the police (see Mr Hurtig’s evidence, p.68). This is a
breach of confidentiality, but apparently not actionable in Sweden. There may be a remedy for
breach of privacy in the European Court (see Mr Hurtig’s transcript p.69).

5. After taking over the case Ms Ny “sensibly” [Mr Hurtig] decided to interview the complainant
(on 2nd September). Mr Hurtig was instructed by Mr Assange on 8th September and entered
into communication with Ms Ny shortly thereafter. On 14th September he asked the prosecutor
for documents with a view to an interrogation, but they were not forthcoming.

6. The complainants were interviewed several times (submissions to Svea Court of Appeal).

7. The Swedish system emphasises the importance of early interrogation (Mr Alhem). Ms Ny
contacted Mr Hurtig and asked to interrogate his client. Mr Hurtig cannot say for certain
whether that was on 21st (as Ms Ny says in her written information) or 22nd September. The 28th
September was suggested as a date for interrogation.

8. No interrogation has taken place.

9. Mr Hurtig says he was unable to make direct contact with his client between Ms Ny asking for
a interview on 21st or 22nd September and 29th September. By this time he says he client was no
longer in Sweden. An interview was offered by the defence on 10th October onwards, but that
was said by Ms Ny to be too far away

10. Mr Hurtig in an unreliable witness as to what efforts he made to contact his client between 21st,
22nd and 29th September (see transcript pages 122-132). He has no record of those attempts.
They were by mobile phone, but he has no record. He cannot recall whether he sent texts or
simply left answer-phone messages.

11. There is no direct evidence as to when Mr Assange left Sweden. Mr Hurtig says he was told it
was on 27th September, and he has seen a baggage ticket bearing that date. He cannot say
whether it was a morning or an afternoon flight.

12. On 27th September, the day Mr Assange is said to have left Sweden, Mr Hurtig heard from Ms
Ny at 0911 that she would get back to him about how the prosecution intended to proceed as he
had been unable to contact his client. He does not agree that he was informed that she had
made a decision to arrest Mr Assange, and believes he was not told until 30th September.
cannot be sure when he was informed of the arrest in absentia.

13. I have not heard from Mr Assange and do not know whether he had been told, by any source,
that he was wanted for interrogation before he left Sweden. I do not know whether he was
uncontactable from 21st – 29th September and if that was the case I do not know why. It would
have been a reasonable assumption from the facts (albeit not necessarily an accurate one) that
Mr Assange was deliberately avoiding interrogation in the period before he left Sweden. Some
witnesses suggest that there were other reasons why he was out of contact. I have heard no
evidence that he was readily contactable.

14. I am sure that constant attempts were made by the prosecuting authorities to arrange
interrogation in the period 21st – 30th September, but those attempts failed. It appears likely
(transcript p.107) that enquiries were made by the authorities independent of his lawyer. The
authorities believed Mr Assange would be in Sweden to give a lecture in early October. They
asked Mr Hurtig to be available on the evening of 6th October. It appears that either the
rumours were false, or Mr Assange changed his mind. In any event he was not apprehended or
interrogated then.

15. Mr Hurtig said in his statement that it was astonishing that Ms Ny made no effort to interview
his client. In fact this is untrue. He says he realised the mistake the night before giving
evidence. He did correct the statement in his evidence in chief (transcript p.83 and p.97).
However, this was very low key and not done in a way that I, at least, immediately grasped as
significant. It was only in cross-examination that the extent of the mistake became clear. Mr
Hurtig must have realised the significance of paragraph 13 of his proof when he submitted it. I
do not accept that this was a genuine mistake. It cannot have slipped his mind. For over a
week he was attempting (he says without success) to contact a very important client about a
very important matter. The statement was a deliberate attempt to mislead the court. It did in
fact mislead Ms Brita Sundberg-Weitman and Mr Alhem . Had they been given the true facts
then that would have changed their opinion on a key fact in a material way.

16. Nevertheless, even on the true facts some important conclusions of Brita Sundberg-Weitman
and Mr Alhem (for example that Mutual Legal Assistance was a more proportionate response
than issuing an EAW) remain.

17. Through Mr Hurtig, Mr Assange offered to be interviewed in Sweden after 9th/10th October
(p.86), rejected as “too far away”, and later in a variety of ways from outside Sweden. All those
offers were rejected by Ms Ny, who made it clear that the interview should take place in
Sweden. A number of reasons have been speculated as to why she took that view. I am not in a
position to say what the reason was.

18. On 24th November the Court of Appeal ruled on detention and the degree of rape, after hearing
written submissions from Ms Ny and Mr Hurtig. Ms Ny’s submissions outlined the steps she
said she had taken to interrogate Mr Assange.

19. Sweden is a signatory to the European Convention on Human Rights. Any trial in this case
would be heard by four judges, one professional and three lay. The lay judges are chosen by
political parties. The decision as to whether the evidence at any trial would be taken in public
or private is taken by the court. However, the evidence will almost certainly be heard privately.
There has been considerable adverse publicity in Sweden for Mr Assange, in the popular press,
the television and in parliament (by the Swedish Prime Minster).

The other material

There were two lever arch files of authorities. Some passages of those authorities were highlighted for me in the
course of submissions. Otherwise they were not physically highlighted, as far as I can tell. I have not thought it
necessary to consider in full all the judgments provided.

There was also, as I have said, a lever arch file filled to overflowing with other documents. Some of those were
statements. Others were exhibits to statements. Some appeared to have been taken from the Internet. Some
were news reports. Some were in Swedish. Some were letters. Generally the material was hearsay. I have
reminded myself of the dangers of hearsay. The maker of the statement has not been cross-examined. Some
comments may have been misunderstood, misreported or mistranslated. In some cases the maker of the
document may not even have intended to state the literal truth. Often it is not possible to assess the reliability or
even the identity of the maker of the statement.

The evidential value of the documents provided was directly raised in connection with the statement of
Professor Ashworth and the document provided by Marianne Ny dated 4th February 2011. The opinion of
Professor Ashworth is contained at tab 8 in the bundle. There can be no greater academic expert on the English
criminal law than the Vinerian Professor of English Law in the University of Oxford. However it was agreed
that this court cannot receive expert opinion on English law. Instead Mr Robertson adopted the professor’s
opinions as his own submissions.

The admissibility of the document provided by Marianne Ny was directly disputed by the defence. They
specifically objected that their experts had travelled from Sweden to London for the hearing, and had been
cross-examined, whereas Ms Ny had not made herself available for cross-examination. The document was
described as a “self-serving statement”. The argument against reception of, or placing any reliance upon, Ms
Ny’s statement is set out by counsel in a document dated 7th February 2011, and the argument can be
summarised briefly here.

. As the statement is clearly directed at disputed evidence, she should make herself available for
cross-examination. It is essential to the fairness of the proceedings that she do so. Equality of
arms demands it.

. Section 202 of the Extradition Act 2003 deals only with “receivability”, not “admissibility”. The
two concepts are separate and distinct.

. The decided cases referred to by the requesting authority are not on point. In addition they
appear to show only that the judicial authority is permitted to provide additional information.

. The information she provides is undermined by other information and evidence.

. In other cases representatives of judicial authorities or the requesting state have attended to
give evidence, and on at least two such occasions the evidence was not accepted by the court.

It is far from unusual for the requesting authority to provide further information, sometimes at the request of the
court itself. In this case it was surprising that the information was not supplied earlier. By section 202(1) a part
1 warrant may be received in evidence in proceedings under the Extradition Act 2003. Section 202(2) provides
that any other document issued in a category 1 territory may be received in evidence in proceedings under the
Act if it is duly authenticated. It is not disputed that Ms Ny’s statement is duly authenticated.

Miss Montgomery has argued that Parliament’s intention was that any further information submitted by a
requesting Judicial Authority should be received by the court as admissible evidence if duly authenticated. She
asked me to compare the provisions relating to Part 1 cases with section 84 of the Extradition Act 2003 which
allows the judge to treat documentary statements which would be admissible if given in oral evidence admissible
evidence of fact if the statement has been made to a police officer or investigator.

As Miss Montgomery points out, section 84 of the Act governs part 2 warrants, and it cannot be the case that it
is easier to admit material for part 2 warrants under section 84 than for a part 1 warrant. I am satisfied that the
information is receivable under section 202 and admissible. It is admissible under the Extradition Act, as
potentially is all information. I bear in mind that it is hearsay. I bear in mind that the defence has not had the
opportunity to cross-examine the witness. All these are matters that go to weight.

The validity of the warrant

The defence says that the warrant does not comply with section 2 of the Extradition Act 2003. Unless I am sure
the warrant is valid I must discharge.

The attack is threefold. Firstly Ms Ny is not eligible to issue the EAW. Secondly she is not “a judicial
authority”. Thirdly the warrant is not “issued … for the purpose of being prosecuted for the offence” as
required by subsections 2 and 3. The argument is set out in the skeleton argument prepared by counsel for the
defendant on 4th February 2011, and is further developed in the skeleton dated 7th February 2011.

Ms Ny does not have authority to issue the warrant and is not “a judicial authority”.

The main points made about Ms Ny’s lack of authority to issue the EAW are:

. Ms Ny is not “the Director of Public Prosecutions” as referred to by the prosecution.

. Whether she has authority to issue the warrant is a fundamental question going to the heart of
the court’s jurisdiction in this case.

. There is lack of clarity as to who is the judicial authority in this case.

The authority to issue an EAW is indeed a fundamental question. That question has already been determined by
the Serious Organised Crime Agency. The certificate issued by SOCA on 6th December 2010 says “On behalf of
the Serious Organised Crime Agency I hereby certify that the part 1 warrant issued by Director of Public
Prosecution Marianne Ny, Swedish Prosecution Authority, Sweden, on 2nd December 2010 … was issued by a
judicial authority of a category one territory which has the function of issuing warrants”. There is an important
reason why the EAW must be certified in this way in each case. It is an important protection for the citizen.
Unless the authority is checked by SOCA a person is at risk of being arrested and detained improperly. Further,
SOCA is better placed than the court to consider who is the appropriate judicial authority for any particular
country. If this task were not undertaken by SOCA then the court would be required to undertake a technical
enquiry in each case. Many defendants are unrepresented and unlikely to be able to take the point. The court
has a special responsibility to unrepresented defendants. In such cases the court checks the key elements of the
warrant to satisfy itself that it is valid on the face of it. Neither the court nor the individual has the capacity
easily to verify the authenticity of the person or organisation who issued the warrant. SOCA does.

Having said that, the court cannot and should not close its eyes to the possibility of a mistake. If there is clear
reason to doubt the authority to issue the EAW then the court is on enquiry and should check that there has not
been a mistake. Here there is simply no reason to believe there has been a mistake. I heard live evidence from a
recently retired Swedish prosecutor. Mr Alhem told me in there is nothing wrong with the EAW in this case.
Similarly Brita Sundberg-Weitman said that Ms Ny is entitled to issue an EAW, although not on the facts as she
understood them to be. Mr Hurtig is a Swedish lawyer. He may not be an expert on extradition but nevertheless
he must have been well placed to discover whether Ms Ny had the appropriate authority, and he has not
suggested otherwise. Ms Ny herself has made a statement saying she has the appropriate authority. Counsel for
the defence took me to various documents to suggest that there is no such office as Director of Public
Prosecutions in Sweden. I was also taken to original documents, including the Swedish Code of Statutes.
Section 3 says, with reference to the EAW: “A Swedish arrest warrant for the purpose of criminal prosecution is
issued by a prosecutor. The Prosecutor-General decides which prosecutors are competent to issue a Swedish
arrest warrant”. Whether or not Ms Ny can properly be described as the Director of Public Prosecutions is
surely a matter for Swedish law and custom. There can be no sensible suggestion she is not a prosecutor. Here,
as throughout the preparation of this case the defence has been meticulous and has left no stone unturned.
Nevertheless I am unpersuaded that any of those documents raise a doubt about Ms Ny’s authority to issue an
EAW. Nor do I think there is anything in the point that there is lack of clarity as to whether Ms Ny or the
Swedish Prosecution Authority issued the warrant. Ms Ny’s details are provided and she signed the warrant.
Even without the SOCA certification I have no doubt that Marianne Ny issued the warrant and is a “judicial
authority which has the function of issuing arrest warrants”. Of course the position may be different if the
warrant is issued for a purpose other than criminal prosecution.

The warrant has not been issued “for the purpose of being prosecuted … for an offence”

It is a central contention of the defence that the warrant was issued for questioning rather than prosecution.
This is a foundation for the abuse of process argument as well as for the argument that the EAW is not valid.

The argument will be found in the skeleton argument on behalf of Mr Assange dated 4th February 2011 and the
further argument dated 7th February 2011. It was also dealt with in the opening and closing address.

Under section 2(2) and (3) Extradition Act 2003 an arrest warrant must contain a statement that the Part 1
warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being
prosecuted for the offence. (Alternatively under subsection 5 the statement should be one that the warrant is
issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for
the offence or of serving a sentence of imprisonment … it is common ground that subsection 5 does not apply

What is required by section 2 of the Act is an arrest warrant which contains a statement that the warrant is issued
for the purpose of being prosecuted. The question has been considered in a number of earlier cases, including
Trenk, Vey, Mighall, Patel and Azstaslos. The defence argue that the EAW nowhere states unequivocally and
without ambiguity that Mr Assange is sought for prosecution. The EAW was translated from Swedish into
English by a translator appointed by the Swedish National Police Board. It begins “This warrant has been issued
by a competent authority. I request that the person mentioned below be arrested and surrendered for the
purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”.

The English word “prosecution” is a translation from the Swedish “lagforing”. This is, says the defence, a fatal
ambiguity. A qualified and experienced linguist and translator, Christopher Brunski said this in a statement:
“The translation of the word “lagforing” as criminal prosecution in the EAW of 2nd December 2010 is too
narrow. It is a general term which relates to the entire legal process and can be used in either civil or criminal
context. It is something of an umbrella term that encompasses other stages and legal procedures that are more
strictly defined in and of themselves. There are more precise terms for prosecution in Swedish, namely atala or
aklaga, both meaning to prosecute or indict”.

So, says the defence, the warrant has not been issued specifically for prosecution. It has simply been issued for
the purposes of legal proceedings. Nowhere in the warrant is the requested person referred to as an “accused”.
Similarly there is no reference to him ever having been charged or indicted. Because the warrant is equivocal, the
court is entitled to examine extrinsic evidence. Moreover this is an exceptional case because the prosecutor
herself had made clear unequivocal public statements that no decision has been taken yet as to whether to
prosecute Mr Assange and that the EAW has been issued for the purpose. Merely for questioning him further.
However the defence did not accept that it is necessary to find that this is an exceptional case in order for the
court to consider the evidence bearing on the subject.

I am satisfied that there is no equivocal statement or ambiguity in the warrant. The English version of the
warrant states that it is for the purposes of conducting a criminal prosecution or executing a custodial sentence
or detention order. The warrant refers to offences, indicates the relevant provisions of Swedish criminal law;
and identifies specific conduct against Mr Assange. There is simply nothing equivocal about the English version
of the warrant. As for the Swedish language version, “lagforing” is the term used in the official Swedish
language version of the Framework Decision. Mr Robertson says this is not to the point: it simply indicates that
all Swedish EAWs that use this formula are ambiguous. I cannot accept that. When the Framework Decision
was agreed the Swedish authorities would undoubtedly have considered it and understood its meaning. A
request for the purposes of “lagforing” is a lawful request for the purpose of the Framework Decision and the
Extradition Act 2003.

In these circumstances I am required to look to the warrant alone, and not to extrinsic evidence. It follows that
the evidence I have heard and read on this question is not relevant to the decision I must make as to the validity
of the warrant. I am sure the warrant is valid on the face of it.

However, the fact remains that much of the material I have read and the evidence I have heard deal with this
question. It was a central plank of the defence case. Moreover it is raised not merely in the context of section 2,
but also as relevant to the abuse of process argument. For those reasons it would be unhelpful if I were not to
make a finding of fact on whether Mr Assange is wanted for prosecution.
The defence says that in the hearings on 7th and 8th February 2011, clear evidence emerged that Mr Assange was
not wanted for prosecution in Sweden.

1. The Svea Court of Appeal document contains an assertion by Ms Ny that: “at this time (8th
October 2010) (Ms Ny’s deputy) also informed attorney Hurtig that Julian Assange was not
being searched for (not wanted) and that he thus scarcely risked being taken into custody if he
landed at Arlanda (airport). It was possible for him to come in to an interrogation more
discreetly”. Mr Hurtig gave unchallenged evidence about this conversation. The prosecution
has not pointed to anything which has changed since that discussion.
2. Moreover, in a submission to the Svea Court of Appeal, Ms Ny refers to: “Requesting the arrest
of Assange is in order to enable implementation of the preliminary investigation and possible
prosecution”. Possible prosecution is not the same as prosecution. It is not enough to take the
case beyond the Ismail threshold of being an accused person.
3. The use by Ms Ny of the word “accused” three times in her communication of 4th February 2011
is inaccurate. Mr Assange has not been charged or indicted in Sweden. The Svea court of
Appeal only refers to him as being “suspected” of the offences which now appear in the EAW.
4. Mr Alhem’s evidence was that “accused” is the wrong word for Ms Ny to use in her statement.
His evidence is that it is not possible for a decision to prosecute to have been taken at this,
preliminary investigation, stage of the proceedings. Chapter 23, section 20 of the Swedish Code
of Criminal Procedure reads: “Upon the conclusion of the preliminary investigation, a decision
on whether to institute a prosecution shall be issued”. As the preliminary investigation in this
case has not yet concluded, no decision to prosecute has yet been taken.
5. Ms Ny confirmed to the Australian ambassador in December 2010, after the EAW had been
issued, that if a decision is made to charge Mr Assange, he and his lawyers will be granted
access to all documents related to the case (no such decision has been made at this stage).
6. Ms Ny cannot take a decision on prosecution, as a matter of Swedish law, because she has not
yet asked Mr Assange to nominate witnesses, as she is required to do under section 18 chapter
23 before closing her investigation.

7. Ms Ny has not decided to prosecute Mr Assange because she has not yet disclosed the file to

8. The defence says the importance of the test as set out in Ismail cannot be over-emphasised.
The test, as set out by Lord Steyn in that case, is: “For my part I am satisfied that the Divisional
Court in this case posed the right test by addressing the broad question whether the competent
authorities in the foreign jurisdiction had taken a step which can fairly be described as the
commencement of the prosecution”. Here the prosecution cannot point to anything that can
fairly be described as the commencement of a prosecution. On the contrary such a step has not
been taken because preliminary investigation is “ring-fenced against a prosecution decision by
virtue of section 20 of chapter 23 of the Criminal Procedure Code”.

9. In any event the issuance of the EAW was disproportionate.

In the defence skeleton argument, and opening, their position was that their client was sought simply in order to
facilitate his questioning and without having yet reached a decision as to whether or not to prosecute him. They
said that Ms Ny’s claim that all the “normal procedures for getting an interrogation” had been “exhausted” is
highly inaccurate. It was said that Mr Hurtig had repeatedly sought to make Mr Assange available to Ms Ny for
questioning, but all these efforts were rebuffed. They quoted from Mr Hurtig: “I can confirm on behalf of Mr
Assange I have been trying for many weeks to arrange for him to be questioned by Ms Ny, including by Mr
Assange returning to Sweden for questioning. All these attempts have been rebuffed by her”. A number of
media clippings were relied on to show that Ms Ny’s repeated position is that she is seeking extradition merely to
conduct an interview with Mr Assange with no decision having been taken on whether to charge or prosecute
him. Reference is also made to Brita Sundberg-Weitman and her opinion, based on her experience and on the
facts set out in the warrant and facts described by Mr Hurtig. These are that the application for an EAW was
manifestly disproportionate and her opinion is that the application was an attempt to bring Mr Assange to
Sweden for questioning rather than prosecution.

Against that, Ms Ny explains her position in her information dated 4th February 2011. She says:

B. The aim of the EAW

5. Julian Assange’s surrender is sought in order that he may be subject to criminal proceedings.

6. A domestic warrant for the respondent’s arrest was upheld on 24th November 2010 by the Court
of Appeal, Sweden. An arrest warrant was issued on the basis that Julian Assange is accused
with probable cause of the offences outlined on the EAW.

7. According to Swedish law, a formal decision to indict may not be taken at the stage that the
criminal process is currently at. Julian Assange’s case is currently at the stage of “preliminary
investigation”. It will only be concluded when Julian Assange is surrendered to Sweden and
has been interrogated.

8. The purpose of a preliminary investigation is to investigate the crime, provide underlying
material on which to base a decision concerning prosecution and prepare the case so that all
evidence can be presented at trial. Once the decision to indict has been made, an indictment is
filed with the court. In the case of a person in pre-trial detention, the trial must commence
within two weeks. Once started, the trial may not be adjourned. It can therefore be seen that
the formal decision to indict is made at an advanced stage of the criminal proceedings. There
is no easy analogy to be drawn with the English criminal procedure. I issued the EAW because
I was satisfied that there was substantial and probable cause to accuse Julian Assange of the

9. It is submitted on Julian Assange’s behalf that it would be possible for me to interview him by
way of Mutual Legal Assistance. This is not an appropriate course in Assange’s case. The
preliminary investigation is at an advanced stage and I consider that it is necessary to
interrogate Assange, in person, regarding the evidence in respect of the serious allegations
made against him.

10. Once the interrogation is complete it may be that further questions need to be put to witnesses
or the forensic scientists. Subject to any matters said by him, which undermine my present
view that he should be indicted, an indictment will be launched with the court thereafter. It can
therefore be seen that Assange is sought for the purpose of conducting criminal proceedings
and that he is not sought merely to assist with our enquiries.

11. It is not correct to assert that Assange has made repeated offers to be interviewed. In
September and October 2010 I was in constant contact with counsel Bjorn Hurtig. It was not
possible to arrange an interview because Assange did not come back to Sweden, despite my
request that he did. Frequently, Hurtig was not able to contact Assange to arrange the details
for him to attend for interview. An offer of an interview by telephone was made by Hurtig. I
declined this offer for the reasons outlined above. It was because his failure to attend Sweden
for interview and so that criminal proceedings could continue, that it was necessary for me to
request from the court an order for his arrest.

The person who knows whether she wants the defendant for the purpose of being prosecuted is the Swedish
prosecutor Ms Ny. The defence says it is unfair that she has not been called to give live evidence, so that her
account can be properly explored and if appropriate challenged. They point to other cases where this has
happened, and where the domestic court has not ordered extradition. I have already determined that Ms Ny’s
statement is admissible. It is hearsay. It has not been exposed to cross-examination. On the other hand we
know the source of the information. The defence have had the opportunity to attack the credibility of the
witness, and have taken that opportunity. In fact the attack on credibility amounts to very little. The main
criticism comes from the Swedish judge, Brita Sundberg-Weitman. She does not know Ms Ny. She bases her
opinion on what she has been told by this defendant’s lawyers and articles she had read in the press. In fact she
produced comparatively little evidence to support her strong criticism of Ms Ny. I refer briefly to that part of
her evidence at page 3 above. Moreover she confirmed that she had no direct personal knowledge of what had
happened in the investigation. Her evidence is based upon facts supplied to her by the defence lawyers. Mr
Hurtig denied telling her that Ms Ny had made no effort to interview his client. He has never met her. There is
therefore no clear evidence as to the source of the information on which Brita Sundberg-Weitman formed her
opinion. One probable explanation is that Mr Assange’s London lawyers provided her with material they had in
turn received from Mr Hurtig. However there are other explanations and the evidence is simply unclear on this
point. Mr Alhem expressly made no judgement on Ms Ny. Mr Hurtig clearly does know the prosecutor
personally. He has not directly accused her of lying, or of malicious intent, but has strongly criticised her
judgement. However, insofar as there were significant differences between his evidence and her evidence on
facts known to them both, he conceded in cross-examination that her evidence is substantially correct.

Against such criticism as remains of the Swedish prosecutor there is the mutual respect and confidence that this
court has in the appropriate authorities of our European counterparts. This mutual respect underpins the whole
framework of the European Arrest Warrant. Where there are ambiguities, and where there is a need for further
information, this court almost always looks first to the judicial authority of the requesting state for clarification.
That clarification is, in my experience, always accepted by the parties and the court. I recognise that others may
have had different experiences, but that is undoubtedly rare. The starting point is that this court can rely on
information supplied by the judicial authority, particularly in a European Union country. So I start with a strong
presumption that Ms Ny is the best person to know why extradition is requested, and that she will provide the
best and most reliable explanation. However, it seems to me that potentially such an explanation can be rebutted
by other evidence. What is the other evidence here?

Ms Ny is conducting a Preliminary Investigation which must end before a decision to prosecute is taken. Brita
Sundberg-Weitman says that the EAW has not been issued for prosecution, but for the purposes of enforcing
the order for detention. However her evidence is based on facts that are wrong. She confirmed that if the
defence lawyer had told the prosecutor that he was unable to contact the defendant for interview, then the
position would be different. When she gave her evidence she did not concede that it had happened like that.
However we subsequently learned that she had been misled, or at the very least mistaken, about the factual
position. This witness also said that in her view the real motive is that Ms Ny wants to arrest Mr Assange
immediately after he is interviewed in Sweden, regardless of what he says. That sounds as if the motive is for
prosecution, even in the form is irregular. She confirmed that she is not an expert on extradition.

Sven-Eric Alhem emphasised the imperative for an early interview with the suspect of a rape allegation. He said
that if it was not possible to hold an early interrogation hearing than he too would have issued an EAW. Again
his expert opinion is based on facts that in the event were wrongly stated. He had not been told of the efforts
made by Ms Ny to arrange an interview in September. He told me that on the account given by Ms Ny it would
have been a reasonable reaction to apply for EAW. He too is not an expert on extradition, but it appears he has
direct experience of the role of a prosecutor in Sweden.

I am not helped by comments Ms Ny may have made before the warrant was issued. Her position may have
changed over time, for example after Mr Assange did not present himself in Sweden for interview.

It is clear that Ns Ny confirmed to the Australian ambassador in December 2010, after the EAW had been
issued, that if a decision is made to charge Mr Assange, he and his lawyers will be granted access to all
documents related to the case (no such decision has been made at this stage.) The decision to charge is not
necessarily the same as a decision to prosecute. It is common ground that mere suspicion that an individual has
committed offences is insufficient to place him the category of an “accused” person. There is no statutory
definition of accused person, nor for this purpose is there any statutory definition of “prosecution”. Given the
diverging systems of law involved, that is not surprising. It is a question of fact in each case whether the person
passes the threshold of being an “accused” person who is wanted for prosecution. It is accepted by all parties in
this case that it is wrong to approach this question solely from the perspective of English criminal procedure. In
our jurisdiction prosecution will normally be started by the laying of an information, or a decision to charge. In
many, perhaps most, other European countries the position is different. It is necessary to adopt a cosmopolitan
approach to the question of whether as a matter of substance rather than form Mr Assange is wanted for
prosecution. The fact that Sweden requires a person to be interrogated, before a formal decision to charge is
made, is not determinative. Each country has its own procedures for prosecuting offences. The fact that the
defendant would be interviewed upon his return is no clear indication that this is a criminal investigation rather
than a criminal prosecution. This point was made recently in Asztaslov v Szekszard City Court, Hungary
[2011] 1 WLR at para 46.

Two Swedish witnesses have given evidence that in their opinion Mr Assange is not wanted for prosecution.
However their opinion is fatally undermined by having been based on an incorrect assumption as to the facts.
They had been told that Ms Ny made no effort to interview Mr Assange before he left Sweden with her
permission and knowledge on 27th September 2010. In fact it is overwhelmingly clear that Ms Ny had contacted
Mr Hurtig to arrange an interview significantly before 27th September. Having left Sweden Mr Assange has not
returned. She did not know he was planning to leave Sweden on 27th September – even his own lawyer
apparently only discovered that later. The most that had happened was that she had confirmed at an earlier stage
that there was no legal constraint, at that time, on Mr Assange leaving the country. It is not necessary for me to
determine for current purposes whether Mr Assange deliberately fled the country to avoid further proceedings.
That has not been specifically alleged. What is clear however is that he has not made himself available for
interview in Sweden. It is said that an interview could have occurred in another way, for example by telephone
or by way of Mutual Legal Assistance. Perhaps another prosecution lawyer would have taken that step. I don’t
know. Similarly I heard no submissions that English law would allow Mutual Legal Assistance in these
circumstances. On the information I have, it does not seem unreasonable for a prosecutor in a serious matter
such as this to expect and indeed require the presence of Mr Assange in Sweden for questioning, and if necessary
to take a DNA sample. Such unanswered questions that remain are unanswered because this defendant has not
complied with the request made to be interrogated in Sweden. There is then the fact that these proceedings are
at the preliminary investigation stage. The decision to charge can be taken only after this stage is complete. It is
not complete until interrogation has taken place and other important procedures, such as providing the evidence
to the defence or nominating witnesses, have occurred. Upon the conclusion of the preliminary investigation a
decision on whether to charge will be taken. There are obviously differences across Europe in systems and terms
such as prosecution. This is well recognised. The court must take a purposeful approach. Someone who, say,
commits a murder in Stockholm, immediately flees the country, and then avoids detection and interrogation, may
well be wanted for prosecution (defined in a purposeful sense) in Sweden. It cannot be said, sensibly, that
because he has not been interviewed then he is not wanted for prosecution and therefore no EAW can be issue.
That is not the factual situation here, of course. It simply illustrates that the fact that no interrogation has taken
place and therefore the preliminary investigation has not concluded is not determinative of whether a person is
wanted for prosecution.

Here is it necessary to focus clearly on the facts of the case. Clear and specific serious allegations have been
made against Mr Assange in Sweden. Attempts have been made by the Swedish prosecutor as long ago as
September to interview him. He has not been interviewed. The Swedish system anticipates detention and early
questioning in allegations of this type, but this has not taken place. Mr Assange is not known to have returned to
Sweden since September. I have no doubt that this defendant is wanted for prosecution in Sweden. On the
information before me I cannot say when or what step was taken that can fairly be described as the
commencement of a prosecution. What I can say is that the boundary between suspicion and preliminary
enquiries on the one hand, and prosecution on the other, has been crossed. It may be that after interrogation
and further enquiries the matter will not be pursued. As Ms Ny says, a formal decision to charge is taken at a
later stage in Sweden than it is here. In this jurisdiction a person can be charged with rape or sexual assault by a
custody sergeant and may then wait many months before the case is discontinued. In Sweden the decision to
formally charge is followed very shortly by the trial itself, if the defendant is in custody.

It is said that the issuance of an EAW was disproportionate. This is not a free-standing bar to extradition. The
witnesses’ evidence on the availability of other methods for interview, such as mutual assistance, was to some
extent based on an assumption that other methods had not been tried while Mr Assange was still in Sweden. To
the extent that the witnesses disagreed with the prosecutor on the facts as they turned out to be, this is a matter
of legitimate differences of approach.

In summary:

1. There is an unequivocal statement that the purpose of the warrant is for prosecution.

2. I am satisfied, looking at the warrant as a whole, that the requested person is an “accused”
within section 2(3)(a) of the Extradition Act and is wanted for prosecution under Section 2(3)(b)
of the Act.

3. The court must construe the words in the Act in a cosmopolitan sense and not just in terms of
the stages of English criminal procedure.

4. As this warrant uses the phrases that are used in the English language version (and indeed the
Swedish language version) of the EAW annexed to the Framework Decision, there is no (or very
little) scope for argument on the purpose of the warrant.

5. In those circumstances the introduction of extrinsic factual and expert evidence should be

6. However, having looked at the extrinsic evidence (perhaps wrongly) the fact that some further
pre-trial evidential investigation could result in no trial taking place does not mean this
defendant is suspected as opposed to accused.

7. The information provided by Ms Ny proves strong, if not irrebuttable, evidence that the
purpose of the warrant is for prosecution.

8. The evidence provided by the defence does not in any way undermine Ms Ny.

9. As a matter of fact, looking at all the circumstances in the round, this person passes the
threshold of being an “accused” person and is wanted for prosecution.

Extradition Offences

The defence argues that the offences in the EAW are not extradition offences and the court should therefore
order the person’s discharge under section 10 Extradition Act. Argument is set out in the skeleton dated 4th
February 2010, issues 6 and 7; and further argument in the closing submissions. The defence adopts the opinion
of Professor Ashworth, although it appears that Professor Ashworth was not specifically asked to comment on
extradition cases on this point, such as Zak, Ulatowski and Norris, nor does he refer to section 75 SOA 2003,
see below.

There are four allegations as set out in box (e) of the warrant:

1. On 13th – 14th August 2010, in the home of the injured party [name given] in Stockholm,
Assange, by using violence, forced the injured party to endure his restricting her freedom of
movement. The violence consisted in a firm hold of the injured party’s arms and a forceful
spreading of her legs whilst lying on top of her and with his body weight preventing her from
moving or shifting.

2. On 13th – 14th August 2010, in the home of the injured party [name given] in Stockholm, Assange
deliberately molested the injured party by acting in a manner designed to violate her sexual
integrity. Assange, who was aware that it was the expressed wish of the injured party and a
prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual
intercourse with her without her knowledge.

3. On 18th August 2010 or on any of the days before or after that date, in the home of the injured
party [name given] in Stockholm, Assange deliberately molested the injured party by acting in a
manner designed to violate her sexual integrity i.e. lying next to her and pressing his naked,
erect penis to her body.

4. On 17th August 2010, in the home of the injured party [name given] in Enkoping, Assange
deliberately consummated sexual intercourse with her by improperly exploiting that she, due to
sleep, was in a helpless state.

It is an aggravating circumstance that Assange, who was aware that it was the expressed wish
of the injured party and a prerequisite of sexual intercourse that a condom be used, still
consummated unprotected sexual intercourse with her. The sexual act was designed to violate
the injured party’s sexual integrity.

The framework list is ticked for “Rape”. This is a reference to an allegation 4. The other three allegations are
described in box (e) II using the same wording as set out above.

As far as offences, 1,2, and 3 are concerned it is argued that these do not constitute extradition offences because
the conduct alleged would not amount to an offence against English law. The court must apply the “conduct
test” of double criminality. That means the court must consider whether the conduct alleged would amount to
an offence under English law as if it had occurred in this jurisdiction. The applicant must establish this
proposition to the criminal standard of proof. What must be proved is that the conduct, if it were established,
would constitute the extradition offence relied on here. Although detailed separate argument has been made
about each of the three offences, it amounts in essence to this: the description provided does not permit an
inference that there was a lack of consent by the complainant, nor that the respondent did not reasonably believe
the complainant to be consenting.

Mr Hurtig tells me that in Sweden the prosecution does not have to prove consent for these offences to be made
out. Mr Rudling explained to me the difficulties of expressing the notion of consent in Swedish. However, this
is not the issue for me. As was said by Auld LJ in Norris: “It is immaterial whether dishonesty was a necessary
constituent of the offence in the United States constituted by the conduct there, if the conduct alleged included
acts or omissions capable of amounting to dishonesty here”. In cases where a dual criminality must be shown,
there is no requirement to identify or specify in terms the relevant mens rea. It is sufficient if it can be inferred
by the court from the conduct that is spelt out in the warrant, and further information where appropriate.

For each of the three offences to be made out in this jurisdiction the Crown must prove that the complainant did
not consent to the touching and the defendant did not reasonably believe that the complainant consented.
These essential elements of the offence are not stated explicitly in terms in the warrant

Section 75 of the Sexual Offences Act 2003 lists the circumstances in which the complainant is taken not to have
consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether the
complainant consented. Also the accused is taken not to have reasonably believed that the complainant
consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it. Where
a section 75 evidential presumption arises there is no question of the issue being removed from the jury. The
circumstances in which evidential presumptions about concerned apply include:

2(a) any person was, at the time of the relevant act or immediately before it began, using violence
against the complainant or causing the complainant to fear that immediate violence would be
used against him;

(d) the complainant was asleep or otherwise unconscious at the time of the relevant act.

(There are other circumstances that are not relevant in this case.)

Offence 1, set out in full above, specifically alleges that Mr Assange “by using violence, forced the injured party
to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party’s
arms and a forceful spreading of her legs whilst lying on top of her and with his body weight prevented her
from moving or shifting”. This brings into play section 75(2)(a) above. These are circumstances in which the
complainant is taken not to have consented and the accused is taken not to have reasonably believed that the
complainant consented. This is an extradition offence pursuant to section 64(3) in that:

(a) the conduct occurred in Sweden

(b) If the conduct had occurred in England and Wales it would amount to sexual assault

(c) The maximum penalty that may be imposed in Sweden for the offence is 2 years

Offence 2, set out in full above, says that M a “deliberately molested the injured party by acting in a manner
designed to violate her sexual integrity. Mr Assange, who was aware that it was the expressed wish of the injured
party and a pre-requisite of sexual intercourse that a condom be used, consummated unprotected sexual
intercourse with her without her knowledge”. The obvious and straightforward way of reading that allegation is
that the complainant had made it clear that she would not consent to unprotected sex, and yet it occurred
without her knowledge and therefore without her consent. Mr Assange was aware of this. Unprotected sex is
wholly different from protected sex in that its potential repercussions are not confined to disease and include
pregnancy. Again this meets the criteria for section 64(3) set out above. In addition the terms “molested” and
“violated” are inconsistent with consent (see below).

Offence 3, also set out in full above, alleges that Mr Assange “deliberately molested the injured party by acting
in a manner designed to violate her sexual integrity, by lying next to her and pressing his naked, erect penis to her
body”. Deliberately molesting someone so as to violate their sexual integrity is not language that is consistent
with consent or belief in consent. Molest means to cause trouble to; to vex, annoy, to inconvenience. A
secondary meaning is to meddle with (a person) injuriously or with hostile intent. (Shorter Oxford English
Dictionary: Third Edition.) Among the various meanings attributed to “violate” in the OED is to ravish or
outrage a woman; to do violence to; to treat irreverently; to desecrate, dishonour, profane or defile. A secondary
meaning is to destroy a person’s chastity by force. There are other definitions, many of which have at their core
the use of violence. If this conduct is attributed its ordinary meaning, then if proved it would amount to sexual
assault in this country. Again section 64(3) applies.

The position with offence 4 is different. This is an allegation of rape. The framework list is ticked for rape.
The defence accepts that normally the ticking of a framework list offence box on an EAW would require very
little analysis by the court. However they then developed a sophisticated argument that the conduct alleged here
would not amount to rape in most European countries. However, what is alleged here is that Mr Assange
“deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a
helpless state”. In this country that would amount to rape.

I have not thought it necessary or desirable to consider extraneous material. I have looked only at the language
used in the warrant. The parties have taken me to some further information in the bundle. This appears to
consist of an interview with the complainants. I am not sure if this information provides the full extent of the
allegation. Even if it does, however, it is unnecessary to consider this material in this context. Section 64(2)

As I am satisfied that the specified offences are extradition offences I must go on to consider whether any of the
bars to extradition specified in section 11 are applicable. No bars are raised and none is found.

It is convenient here to consider the abuse of process allegation.

Abuse of Process

An allegation of abuse of process is made by the defendant. The conduct alleged to constitute the abuse was
identified initially as Ms Ny seeking extradition in circumstances where:

1 She has not yet decided whether to prosecute;

2 She is seeking extradition for the purposes of questioning in order to further her investigation;

3 Arrest for the purpose of questioning would have been, and remains, unnecessary given that
repeated offers have been made on the defendant’s behalf to be questioned by her, which she
has rebuffed;

4 The proper, proportionate and legal means of requesting a person’s questioning in the UK in
these circumstances is though Mutual Legal Assistance.

In the closing submissions an abuse of process was identified as the EAW being issued for a collateral purpose,
namely for questioning, without any decision having been taken to prosecute Mr Assange. It was restated as:

(1) has there been an abuse, namely in issuing the warrant for a collateral purpose?

(2) have there been abuses in Sweden which cannot be remedied in Sweden?

I must consider whether this conduct, if established, is capable of amounting to an abuse of process. If it is, I
must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If
there are, then I should not accede to the request for extradition unless I am satisfied t hat such abuse has not
occurred. If the conduct alleged is established, it is in some circumstances capable of amounting to an abuse of

I have already determined the key question. Ms Ny has decided to prosecute and so the warrant has not been
issued for a collateral purpose. The facts relied on by the defence to establish their original argument have not

The abuses in Sweden which cannot the remedied are identified as follows in the closing submissions:

1 There was an unlawful prosecution disclosure to the media on 20th August 2010 that Mr
Assange was the suspect in a rape investigation.

2 The defendant was excluded from the appeal process whereby Ms Ny overruled the decision of
the Swedish prosecutor to drop the case.

3 The failure to offer to interrogate Mr Assange on the rape charge until 28th September 2010
(more than five weeks after the alleged rape).

4 The prosecutor supplied documents to the media before they were supplied to Mr Hurtig.

5 Crucial exculpatory evidence in the form of SMS messages between the complainants was not
disclosed to the defence by the prosecution.

The wholly improper intervention by the Swedish Prime Minster whipping up further
vilification of Mr Assange as an enemy of the Swedish State.

Points 1, 4 and 6 relate essentially to the same issue – disclosure of information inappropriately and publicly in
an unfair way. It has also been suggested that the complainant’s lawyer in Sweden has made inappropriate
remarks. Miss Montgomery suggested that any comments from the Swedish Prime Minister may have been a
response to comments made publicly on the steps of this court by the defence team here. I have heard no
evidence that the defence team has publicly commented to the media, and so cannot say that that has happened.
Certainly the conventional wisdom is that prosecutors, lawyers and politicians are best advised not to comment
on a case until it is over. Sometimes public comment damages the cause more than it helps. However the reality
is that such comments do occur. In this country police officers do comment on an investigation. Confidential
information is sometimes leaked. Politicians may speak inappropriately. Defence lawyers do sometimes brief
the press. It is not possible for me to measure the impact of any such disclosures in this case. However I think
it highly unlikely that any comment has been made with a view to interfere with the course of public justice. It is
more likely that comments have been made with the intention of protecting reputations, including the reputation
of the Swedish justice system. Moreover, I am absolutely satisfied that no such comments will have any impact
on the decisions of the courts, either here or in Sweden. I know that there will be three lay judges in any trial in
Sweden. Despite the suggestion that they are selected because of their political allegiances, there is simply no
reason to believe that they will not deal with the case on the evidence before them. Any earlier impression of the
merits of the case, whether favourable or unfavourable to this defendant, will play no part. In this jurisdiction
we have ample experience of defendants who have been vilified and yet acquitted. The jury system (and if I may
say so the summary system) is robust. The defence has referred me to one case (McCann, Cullen and
Shanahan) where a politician made comments that were later considered by the Court of Appeal to have had
such a potentially prejudicial effect that the verdict of guilty recorded in the trial had to be overturned. However
that was in relation to a comment about the right to silence made during final speeches of a trial where the
defendants elected not to give evidence at the trial itself. I am not in a position to say whether any comments
made by the police and a prosecutor are unlawful in Sweden. One of the witnesses said they were unfair but not
illegal. They would not necessarily be illegal here. The position may be different once a prosecution has actually
commenced, as opposed to during the investigation.

As for point 2, there is nothing in that. As I understand it, there is a similar process in this country whereby
aggrieved complainants can ask the CPS to reconsider a decision not to prosecute. Such a process does not
demand the participation of a suspect. Complainants can also instigate a private prosecution. In Sweden it is
clear that a suspect also has an opportunity to give an explanation in interrogation before a charge is preferred.

As for point 3, the evidence is that Ms Ny contacted the defence on 21st September requesting an early interview.
The date suggested for interview was 28th September. It is a matter of some surprise that the defendant was not
contactable during the relevant time by his lawyer. However the prosecution cannot be blamed for that. In any
event Swedish procedure is far from universal. Our own process does not envisage that any such questioning
will take place within a matter of weeks. Perhaps the Swedish system is superior to ours in that way, but failing
to comply falls far short of amounting to an abuse of process. The same applies to point 5. The Swedish system
is to be commended for providing information to the defence before prosecution commences. However our
own system certainly would not require disclosure at that stage. It is interesting to note that Mr Hurtig has
clearly had access to some material casting doubt on the prosecution case provided, albeit not in written form, by
the prosecuting authorities. In any event, the preliminary investigation has not concluded because Mr Assange
has not returned to Sweden.

If there have been any irregularities within the Swedish system, then the right place for these to be examined and
remedied is the Swedish trial process. Sweden is a member of the European Union and has undertaken to abide
by ECHR obligations. None of these points raised by the defence establishes an abuse of process.

Some other points were referred to in argument or evidence but not pursued in final submissions (for example
that the allegations set out in the warrant do not accurately reflect the complainants’ interviews, which
demonstrates bad faith by the prosecutor). For the sake of completeness, I add that none of the accusations
made against the conduct of Ms Ny comes close to establishing impropriety on her behalf.

Extraneous considerations

A person’s extradition to a Category 1 territory is barred by reason of extraneous considerations if (and only if) it
appears that:

(a) the Part 1 warrant issued in respect of him (though purporting to be issued on account of the
extradition offence) is in fact issued for the purpose of prosecuting or punishing him on
account of his race, religion, nationality, gender, sexual orientation or political opinions, or

(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his
personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political

This has been hinted at, but no evidence has been provided and the bar is neither argued nor found.

Section 21 Human Rights

As the issues arising above have been decided adversely to the defendant, I must decide whether extradition
would be compatible with the defendant’s Convention rights within the meaning of the Human Rights Act 1998.
If it would not be so compatible, the defendant must be discharged.

The defence closing submissions refer to an alleged denigration of the defendant by the Swedish Prime Minister
which is “plainly calculated to encourage the Swedish media and legal officials to pursue Mr Assange’s guilt and
to regard him as a public enemy”. For this and other reasons it is said that Mr Assange will not receive a fair
trial. I have referred to this earlier. I do not accept this was the purpose of the comment, or the effect.

Perhaps the most significant of the human rights points is the submission that rape trials in Sweden are held
behind closed doors. This court is being asked, it is said, to surrender a man for a secret trial, contrary to article
47 of the Charter, article 6 of the ECHR and to the UK’s fundamental constitutional principles.

Article 6 ECHR reads, in part:

(1) In the determination of … any criminal charge against him, everyone is entitled to a fair and
public hearing by an independent and impartial tribunal established by law. Judgement shall
be pronounced publicly but the press and public may be excluded from all or part of the trial in
the interests of morals, public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice.

Evidence was heard on this point. It does indeed appear to be the case that in almost all rape trials the evidence
at least is heard privately. The judgment is pronoucned publicly. Any final decision as to public or private trial is
taken by the court. It may very well be that in most cases all parties are content with this process. However
there have been some cases where the defendant asked for a public trial and this was refused. The notion of a
trial that is not heard in public is certainly alien as far as our system is concerned, at the least for adults. In the
youth court, trials (including trials on allegations of rape) are heard without access for the general public. The
press is permitted to attend but with significant restrictions on what can be published. Less significantly, it is not
unknown in our trial process for there to be reporting restrictions at least until the trial concludes.

Mr Robertson says that: “Any sense of fair play – that justice must be seen to be done – revolts at this Swedish
practice”. The question for me is whether it offends against article 6 and other fundamental rights. I have been
referred to Fedje v Sweden. However I have not been referred to any significant body of European Court
cases that show that the Swedish practice in rape cases offends against article 6. Article 6 specifically envisages
circumstances where the press and public may be excluded from all or part of the hearing. Apparently the
practice in Sweden is long-standing. One assumes that rape allegations are not that uncommon. If the Swedish
practice was in fundamental and flagrant breach of human rights I would expect there to be a body of cases
against Sweden confirming that. In fact I think the position is more subtle and less stark than Mr Robertson
suggests. His own witness, Mr Alhem, who is clearly a thoughtful man and much attached to the principle of
fairness, was in two minds about the issue.

It is fair to say that there has been an argument in other jurisdictions, including our own, that some cases should
not be publicised or evidence reported. There can be no doubt that Sweden incorporates article 6 principles into
its judicial system. Because that country has reached a different conclusion on the appropriate balance between
privacy and open justice does not mean that their practice offends against article 6. I am satisfied that the
appropriate test is applied in Sweden and that if a decision is taken to hold a trial in private then that will be after
the necessary balancing has been undertaken, and will not breach article 6 or any other fundamental human right.

There was at one stage a suggestion that Mr Assange could be extradited to the USA (possibly to Guantanamo
Bay or to execution as a traitor). The only live evidence on the point came from the defence witness Mr Alhem
who said it couldn’t happen. In the absence of any evidence that Mr Assange risks torture or execution Mr
Robertson was right not to pursue this point in closing. It may be worth adding that I do not know if Sweden
has an extradition treaty with the United States of America. There has been no evidence regarding this. I would
expect that there is such a treaty. If Mr Assange is surrendered to Sweden and a request is made to Sweden for
his extradition to the United States of America, then article 28 of the framework decision applies. In such an
event the consent of the Secretary of State in this country will be required, in accordance with section 58 of the
Extradition Act 2003, before Sweden can order Mr Assange’s extradition to a third State. The Secretary of State
is required to give notice to Mr Assange unless it is impracticable to do so. Mr Assange would have the
protection of the courts in Sweden and, as the Secretary of State’s decision can be reviewed, he would have the
protection of the English courts also. But none of this was argued.

I have specifically considered whether the physical or mental condition of the defendant is such that it would be
unjust or oppressive to extradite him.

In fact as I am satisfied that extradition is compatible with the defendant’s Convention rights, I must order that
Mr Assange be extradited to Sweden.

Howard Riddle
Senior District Judge (Chief Magistrate)
Appropriate Judge

24th February 2011
On Crime, Punishment, and Psychiatric Care: An Introduction to Swedish Philosophy of Criminal Law and Forensic Psychiatry
The Swedish Penal Code, 1986: The translation is that of the wording of the Penal Code as at April 1, 1986 (Report)Penal Code of Sweden (The American series of foreign penal codes)