The Israeli “Rape by Deception” Case: a Bad Law, a Bad Ruling, and Here We Go Again with Another Round of Misdirected Israel-Bashing
July 23, 2010 1 Comment
A Palestinian man, Sabbar Kashur, was recently sentenced to 18 months in jail for rape. He met a woman in downtown Jerusalem, started talking, they felt a mutual attraction, went to a nearby building, and had sex. Rape? Imprudent, sure; reckless, probably; stupid, works for me — but… rape?
Here’s the kicker. Kashur pretended to be single and Jewish. He was neither. He was married, Palestinian, and the father of two children.
In Israel, it is against the law — and can constitute the crime of rape by deception — to obtain sex by false pretenses. That’s a dumb law. And the ruling in Kashur’s sentencing illustrates it dumbness.
But here we go again. The blogosphere is aflame with denunciation and contempt for Israel — including, not incidentally, in Israel. Kashur, naturally, says the ruling is racist. CNN frames the story as: “Rape by deception, or racist?”
Liberal commentator Gideon Levy fumed in Haaretz, “now the respected judges have to be asked: If the man was really Dudu posing as Sabbar, a Jew pretending to be an Arab so he could sleep with an Arab woman, would he then be convicted of rape? And do the eminent judges understand the social and racist meaning of their florid verdict?”
This is how ABC News began the story: “Sabbar Kashur, a Palestinian from East Jerusalem, has been sentenced by an Israeli court to 18 months in jail for the unprecedented crime of ‘rape by deception.’ It is a case that has raised some very difficult questions about discrimination and the legal system in Israel.” Aljazeera.net blogger, Sherine Tadros, entitles her post, “Is being Arab Israel’s criteria for rape?” Her unsurprising answer is yes. The New York Times declares in a headline, “Israeli Court Calls Lying for Sex Rape,” and explores instances of Israelis objecting to relationships between Jews and Arabs.
These posts, and many more like it, underscore why people who feel strongly about Israel’s right to exist sometimes pause before criticizing Israel — because criticism of Israel, of which there is plenty in Israel, never seems to land in a context, where other nations are judged by similar standards. Instead, criticism of Israel becomes a frenzy, and anyone criticizing Israel is conscripted into the frenzy.
When I first heard about this story, I resolved to criticize the Israeli law and the Israeli ruling. I still will. But I’ll also criticize the frenzy.
The Israeli law confuses fraud and sexual assault. It is a trivialization of rape to say that a woman who freely engaged in sex has been raped. The exception is statutory rape, sex with a minor, because we deem sex with a minor criminal regardless of consent. In no other case do we properly ignore the critical question of consent.
In sentencing Kashur, the Israeli court said: “If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” and added “the court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price — the sanctity of their bodies and souls. When the very basis of trust between human beings drops, especially when the matters at hand are so intimate, sensitive and fateful, the court is required to stand firmly at the side of the victims — actual and potential — to protect their wellbeing. Otherwise, they will be used, manipulated and misled, while paying only a tolerable and symbolic price.”
This is bad judging from so many angles. First, “innocent victim” is not the phrase I would use to describe a woman who freely has sex with a man in a public building some moments after meeting him. Second, “the sanctity of their bodies and souls”? What standard of sanctity applies here? Where is genuine sanctity evident at all in any of this disturbing saga?
Third, “when the very basis of trust between human beings drops… the court is required to stand firmly at the side of the victims”? What does that even mean? And when is the judiciary in the business of intervening in human affairs because “the very basis of trust between human beings drops”? The “basis of trust” between human beings drops multiple hundreds of thousands of times a day. The judiciary is certainly not obliged to intervene in these common drops in human trust.
Fourth, the court justifies its power on the basis of its obligation to “protect the public interest,” which perfectly illustrates why a judiciary that rules on the basis of “protecting the public interest,” and can supply whatever content it wishes to the definition of “public interest,” is a judiciary without adequate mooring or modesty.
Fifth, the court effectively makes lying that yields sex the crime of rape — and that is indeed a dangerous precedent. Let’s agree that lying for sex is bad. It’s not rape. The damage to the concept of rape, the forcible sexual assault of another person, a person who says no or who has no capacity to say yes, is not what any serious person sensitive to the horror of rape, would wish. If “rape” becomes commonly understood to include consensual sex, fraudulently obtained, then rape becomes, in common understanding, a lesser evil than it is.
Is the ruling racist? Good grief. The ruling is based upon a 2008 High Court of Justice ruling, rejecting an appeal of the rape conviction of Zvi Sleiman, who impersonated a senior official in the Housing Ministry whose wife worked in the National Insurance Institute. Sleiman told women he would get them an apartment and higher NII payments if they would sleep with him. Zvi Sleiman was a Jew. Since the 2008 ruling, other Jews in Israel have been convicted under the same law.
Another dumb ruling, but obviously not racist. High Court Justice Elyakim Rubinstein said a conviction of rape should be imposed any time a “person does not tell the truth regarding critical matters to a reasonable woman, and as a result of misrepresentation she has sexual relations with him.” That is a dangerous expansion of the concept of rape, but it’s not racist and it is a High Court precedent, which the lower court was bound to apply in Kashur’s case.
The court in Kashur’s case applied the Sleiman precedent ineptly. It could have distinguished Sleiman on the grounds that the deception was neither protracted nor based upon a promise of a material benefit the defendant was in fact in no position to bestow (although the court noted the defendant’s professed interest in a “serious romantic relationship” as material). The court’s failure to limit the scope of the misconceived Sleiman precedent is not racist. It’s just inept. Bad judging happens.
And finally, let us take as a given that what would have happened to a Jewish man (and the Muslim woman) in a Muslim country, were he even permitted in that country, would have been much worse. Just for context.