In this article, first published on the Halsbury's law Exchange blog, Felicity Gerry looks at common misconceptions about rape and the legal furore surrounding Julian Assange

Last week the heat of the rape debate reached boiling point when, here in the UK, MP George Galloway made a videocast commenting on sexual allegations made against Julian Assange.

Despite clear legal authority, Galloway suggested that sex with a sleeping woman is not rape. Across the pond, President Barack Obama came out with reassurance that "rape is rape" after Republican candidate Todd Akin referred to "legitimate rape" and suggested that women could not get pregnant from forcible rape. You don't need me to tell you how babies are made, but certainly my favourite response to Mr Akin came from the Renegade Raging Grannies, whose lyrics about the stork only coming if you say yes are priceless.

Sadly, it seems it still takes a lawyer to explain to some people what rape is. Aside from statutory rape of a girl under 13, rape in this country is the penetration of the mouth, anus or vagina with a penis when there is no consent and no reasonable belief in consent. The victim can be male or female. There is no stereotypical rapist and no stereotypical rape victim. It all depends on what the evidence is when someone complains and, where consent is in issue, what steps are taken to ensure the other person is consenting. Evidence of a lack of consent can range from fighting back to someone lying helpless and crying. Consent is usually demonstrated by active participation. As you can see, the law follows common sense.

Julian Assange continues to make legal history. It has long been a principle of extradition that a person should only be extradited where the conduct is not only an offence under the law of the State requesting extradition, but also under the law of the State from which the person's extradition is sought. In Sweden, as in many countries, the act of having sex with a sleeping woman or unprotected sex with a woman who asks a man to use contraception is an offence.

In Germany and some US states, the label is not rape as it is not considered "forcible" but is labelled sex with a woman who lacks capacity which somehow puts the focus on the conduct of the victim rather than the perpetrator (see the BBC summary here). I suspect any victim of non-consensual penetration would agree that our terminology is correct.

In the UK the law on rape was properly debated in Parliament before the implementation of the 2003 Sexual Offences Act, during the time that Galloway was MP for Glasgow Klein.

It is a common misconception that of itself sex without consent constitutes rape. A person who is penetrated without consent suffers appalling trauma but, the law also requires proof of a lack of belief in consent for it to be a provable crime. If someone genuinely and reasonably believes they are participating in a consensual act then they should not be convicted. If what Galloway was trying to say was "how is a man supposed to know", then the law merely requires reasonable steps to be taken.

The allegations against Mr Assange are sadly quite commonplace. Our courts deal with such cases every day of the week. These cases are never straightforward and can result in acquittal either because the jury cannot be sure that the receiver was in fact asleep, but also where there are issues about the credibility and reliability of all parties involved. Sometimes, in relation to private sexual activity, where the participants disagree, it is impossible to be sure what went on. All of these issues should be considered before someone is charged with such a serious offence and then by a jury if the evidence is sufficient and it is in the public interest to prosecute (click here for a more detailed article on "sleep rape").

Julian Assange may be the victim of a setup, he may not. Unfortunately, at present, the issues are unlikely to be litigated. Plainly, if the allegations are untruthful or he genuinely and reasonably believed there was consent, then he should not be convicted, but the fact that he denies the allegations does not mean we should be concluding that the allegation is not an allegation of rape.

Logically that would mean that those who use date rape drugs would be able to argue that they should not be prosecuted either because the other party was asleep. The law applies regardless of who you are or who you have sex with – unless you have the sort of relationship where your partner says: "feel free to get on with it when I'm asleep".

There is no opportunity to consent and no reasonable steps have been taken to establish if consent exists. One person took to Twitter over the weekend to give graphic details of how his wife likes it when she is awoken by being penetrated. However hard this is to believe and however fearful you may be for those wives at bedtime, logically it cannot be a defence to say that she consents just because she is his wife. That would be to suggest that a husband has conjugal rights, a concept removed by case law in 1992 and subsequently by statute, albeit only in 1995.

The other allegation against Mr Assange was summarised by the Queen's Bench Division (Julian Assange v Sweden [2011] EWHC 2849 (Admin)) as follows:

"The complainant 'AA' said in her statement that Mr Assange ripped off her clothes and at the same time broke her necklace. She tried to put her clothes on again, but Mr Assange had immediately removed them again. She had thought that she did not really want to continue, but it was too late to tell Mr Assange to stop as she had consented so far. Accordingly she let Mr Assange take off all her clothes. Thereafter they laid down on the bed naked with AA on her back and Mr Assange on top. Mr Assange wanted to insert his penis into her vagina, but she did not want him to do that as he was not using a condom. She therefore squeezed her legs together in order to avoid him penetrating her. She tried to reach several times for a condom which Mr Assange had stopped her from doing by holding her arms and bending her legs open and trying to penetrate her with his penis without a condom. Mr Assange must have known it was a condom AA was reaching for and he had held her arms to stop her. After a while Mr Assange had asked AA what she was doing and why she was squeezing her legs together; AA told him she wanted him to put on a condom before he entered her. Mr Assange let go of AA's arms and put on a condom which AA found for him. AA felt a strong sense of unexpressed resistance on Mr Assange' s part against using a condom."

The court rejected the submission that no offence was committed in England if consent to sexual intercourse was on condition that Mr Assange wore a condom stating:

"The question of consent in the present case is to be determined by reference to s 74. The allegation is clear and covers the alternatives; it not an allegation that the condom came off accidentally or was damaged accidentally. It would plainly be open to a jury to hold that, if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent. His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003."

Thus it is that modern law in relation to sexual offences make strides in a direction most ordinary people would consider sensible and somewhat obvious. Whether alleged offences are actually proved will be a matter for a court but "not unless you use a condom" in this country now has some legal authority which follows logic.

Julian Assange has denied the allegations against him and has been granted political asylum by Ecuador. His claims of political persecution have been taken seriously; the sexual claims by his accusers have not. The disparity is glaring: one rule for a man leading the charge on freedom of expression and another for women who complain. It shouldn't take renegade grannies to spell it out to Mr Akin and Mr Galloway (or anyone else for that matter).

Felicity Gerry is a criminal barrister and a contributor to the Halsbury's Law Exchange blog. Click here to follow the Halsbury's Law Exchange on Twitter and click here to follow Felicity.