The Rape (Of Justice) By Deception

But it's the visceral emotional core of this that is so offensive. It's about racism, religion and the risk of miscegenation. It's about the deep disgust of some Israeli Jews toward Arabs, upheld by the courts. It's a variant of the racial sexual panics of the Jim Crow South.
Andrew Sullivan, blogger, author and former editor of The New Republic

Sullivan is talking about the case reported in July about an Arab man who told a woman he was Jewish. After having intercourse and discovering the man had lied, charges were filed for "rape by deception." The details of the case were late getting out, which did not stop the media from reporting unquestioningly that it was consensual.

In Israeli Rape-By-Deception Case, Now With More Rape, Less Deception, Victor Shikhman gives examples of how the media ran with the story, and never looked back, as they defended the man.


Neither did the media, or bloggers like Andrew Sullivan, hesitate to claim that the charges against the man were indicative of the racism of the Jewish state of Israel towards Arabs.

Now the full facts are out, and although the Haaretz article is in Hebrew, there is a translation by Elizabeth that appears on Mideast Youth--“Rape by deception” turns out to be brutal rape of a vulnerable and abused woman.

Elizabeth notes that those who reported the story cannot deny culpability, as there were basic questions that they never bothered to ask:

The accusations of racism were flung forcefully at the woman and the Israeli judiciary, despite the focus of the verdict on the marital status of the man and not his race. “All men should be jailed if lying is a crime”, commentators chirped. The media didn’t bother asking why Kashur was initially charged with non-consensual rape, and why he agreed to the plea bargain.

Here is the background Elizabeth gives to the article, and serves as a summary:

Last week, Haaretz daily published a long expose on the matter (my full translation below), revealing what was behind the plea agreement. The report shows, that the victim, B., was raped by her father since she was six-years-old, and was later forced into prostitution by him. At the time of the rape, B. was staying in a women’s shelter after another sexual assault by her father. According to B.’s testimony, first revealed in the Haaretz report, after Kashur claimed that he was a Jewish bachelor, he enticed her to come into a stairwell in a Jerusalem building, where he brutally raped her. B. was left bleeding, beaten up and half naked by Kashur.

Following the rape, B. was hospitalized in a mental institution, where she was investigated by the police. The Prosecutor’s office decided to charge Kashur with rape and sexual assault based on B.’s testimony and other evidence. When B. later appeared in Court to give her testimony, which was confused and contradictory at times, she was confronted by the Defense attorney with her past occupation as a prostitute and her father’s abuse and rape from an early age. The court appearance left B. severely traumatized. When the Defense learned that B. previously filed 14 complaints against her father and other men for sexual assault, it asked to cross-examine B. once again about the past complaints, while focusing on a number of them that didn’t result in an indictment and convictions due to contradictions in her story. The Defense planned to use B.’s past complaints to shatter her credibility. Wanting to avoid another traumatizing event, the Prosecution formulated a plea bargain with the Defense that reduced the charges to “rape by deception”. Essentially, using the threat of once again subjecting a vulnerable rape victim to a traumatizing interrogation, the Defense was able to reach a plea agreement with greatly reduced charges, which didn’t correspond with the facts of the incident.

The Israeli media has failed to thoroughly investigate this matter, resulting in widespread victimization of a rapist and mockery of the “gullible” woman. B. was victimized and abused by her surrounding from an early age, and unfortunately, the Israeli and foreign media, pundits and the blogosphere, victimized her once again.

The article is long--here is the account on how the media got the facts so wrong:

The Prosecution wanted to see Kashur serve time in jail, and when asked during the argumentation for punishment on the duration, Wittman replied: “more than six months in jail, but not many years. I don’t want to state an exact number of months.” This is while the Defense argued that any punishment beyond probation would be unjustified. The main arguments of the Defense were the lack of criminal history, the admission and acceptance of responsibility, and then need to integrate Kashur in a rehabilitation program. On top of that, Kashur has already been punished with house arrest for over a year (for about two years until today), wearing an electronic bracelet. But on July 19, 2010, almost a year after the filing of the updated indictment, the three-panel court sentenced Kashur to 18 months in prison.

At this point, the media entered the fray and did so like an elephant entering a china shop. The media, being unaware of the legal complexities of the case, only joined in at the last moment and fumed about what appeared like a grossly disproportionate punishment compared to the counts of the indictment, and the punishment of Kashur for essentially portraying himself as a Jew. As a result, Kashur was turned into a victim of an apparently racist judicial system. “Posed as a Jewish bachelor, had consensual sex – and convicted of rape”, the Haaretz headline read. In a commentary article, the law commentator of the paper, Ze’ev Segal said that: “the application of this offense (rape offense; LG) also on a case where consent was given due to misrepresentation of one of the sides is nothing but contempt of the offense of rape. As merchants praise their merchandise, so do people, at times, present themselves as something they’re truly not.” It should be mentioned that as this point, B.’s testimony remained classified, which made it difficult to get the full picture of the story. Nevertheless, it didn’t seem to interest anyone why Kashur was initially charged with rape without consent and why later he agreed to take a plea bargain.

The importance of these questions grew smaller and smaller with every appearance of Kashur in the media. Absurdly, the verdict, which at first shocked him and his attorneys, played into their hands complexly, by making Kashur a sought-after interviewee, exactly because of the severity of the verdict. In a short time, Kashur presented his version on television, the radio and a newspaper, while of course omitting the details that were problematic for him. Among other things, he told Abramov in the Yediot Aharonot interview that “it was clear that the girl really (ashkara) jumped on me, wrapped herself around me. I don’t remember who was the first to say “let’s have sex” but it was clear that she wanted it.” Yediot Aharonot added insult to injury by attaching to the interview a box with a guide to “the lies everyone tells on the first date”. In an interview to the morning show on 103FM, said the host Gabi Gazith to Kashur: “you probably were aware that many in the media think that the punishment you received was too harsh?” At another point of the interview Kashur said: “I made a small mistake and I’m paying for it tenfold.”. “Everyone makes mistakes”, agreed Gazith at the end of the interview and wanted to clarify: “don’t let anyone think based on this friendly conversation that we support deception, or that we’re for providing false details about yourself. We think people should proudly carry their real identity and their name. But if it’s not asked, it’s not asked”. This friendly chat is just one example of the gap between B.’s testimony and the way the case was portrayed in the media.

It should be said right away that in the limited context in which the details of the events were presented, there was ground for the suspicion of racism. A sentence of 18 months in jail for an Arab who posed as a Jew in order to have sex seemed unreasonable, which is proven by the complexity arising from B.’s testimony. However, until it was revealed, the affair caused significant damage to the judiciary. Most of the fire was directed at the Prosecutor, which when trying to reply had its hands tied since it signed a plea agreement stating that the sex was consensual, and now couldn’t claim otherwise. At some point Wittman was dispatched to the media front, and attempted to explain to Ynet, three days after the publication of the verdict, the development of the case. He did this under the limitation imposed on him while emphasizing slight nuances: “Kashur was tried for forcible rape, but during the hearing of testimonies some difficulties with evidence arose and therefore negotiations were held between the Prosecution and Defense and we reached a plea bargain… according to the plea, even the Defense admitted to rape and deceit.”

But the nuance wasn’t understood and the media kept with its attack, thus providing strong support for the Defense to appeal the verdict to the Supreme Court ten days after its publication. “The Defense states”, the appeal read, “that the facts described in the updated indictment shouldn’t result in charges of rape by deception… in the circumstanced described in the indictment… the Defense thinks that this behavior is within the realms of activities that although immoral, the criminal law in a liberal state is supposed to stay out of.”

For the Prosecution, this was the last straw. On the same day, in an extraordinary move, the spokesman of the Ministry of Justice, Moshe Cohen, issued the following statement: “The Prosecutor’s Office in the Jerusalem Country does not approve of the tone in which the appeal is worded and the strong expression contained in it. The Prosecution was especially surprised by the denial of the Defense of the charge of deceit, demanding to acquit the defendant of the rape by deceit charge… now the Public Defense decided to change its mind and deny these facts – facts that are the basis of the plea agreement it formulated with the Prosecution and signed, after the initial indictment charged the defendant with rape without consent.” But this message, in its legalistic language, and still with the inability to reveal details of B.’s testimony that can shed another light on the story, also passed under the radar of the media.

About a month ago Kashur was released with limiting arrangements from house arrest after two years. This was part of the appeal that his defense attorneys submitted to the Supreme Court to receive a stay in the execution of the sentence until the appeal in his case was to be decided. “I’ve reached the conclusion that in this case the request should be granted”, wrote Supreme Court Justice Asher Gronis, “the circumstances of the case, as they appear in the updated indictment, are extraordinary. We cannot rule out the possibility that the Appeal court will decrease the punishment of the appellant.” A date for Kashur’s appeal in the Supreme Court hasn’t been set yet.

The final chapter has still not been written about the case, but the ease with which an unquestioning media accepted one side of the story indicates that many of those in the foreign media who were so quick to hurl the charge of racism, may have been exhibiting that very thing.

Hat tip: Yaacov Lozowick's Ruminations

Technorati Tag: Sabbar Kashur and Rape By Deception.