Max Fisher at The Atlantic with a round-up.
Jo Adetunji and Harriet Sherwood at The Guardian:
A Palestinian man has been convicted of rape after having consensual sex with a woman who had believed him to be a fellow Jew.
Sabbar Kashur, 30, was sentenced to 18 months in prison on Monday after the court ruled that he was guilty of rape by deception. According to the complaint filed by the woman with the Jerusalem district court, the two met in downtown Jerusalem in September 2008 where Kashur, an Arab from East Jerusalem, introduced himself as a Jewish bachelor seeking a serious relationship. The two then had consensual sex in a nearby building before Kashur left.
When she later found out that he was not Jewish but an Arab, she filed a criminal complaint for rape and indecent assault.
Although Kashur was initially charged with rape and indecent assault, this was changed to a charge of rape by deception as part of a plea bargain arrangement.
Handing down the verdict, Tzvi Segal, one of three judges on the case, acknowledged that sex had been consensual but said that although not “a classical rape by force,” the woman would not have consented if she had not believed Kashur was Jewish.
The sex therefore was obtained under false pretences, the judges said. “If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” they added.
The court ruled that Kashur should receive a jail term and rejected the option of a six-month community service order. He was said to be seeking to appeal.
Segal said: “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.”
The Israeli criminal code mentions “deceit” as a possible aggravating factor in sexual assault cases and the verdict in Kashur’s case is not the first time an Israeli court has sentenced a man for “rape by deception,” according to several Israeli lawyers.
The most notable case was in 2008, when Israel’s high court of justice upheld the conviction of Zvi Sleiman, a man who impersonated a housing ministry official and promised women apartments and benefits in exchange for sex.
A rape conviction sentence could be upheld, the court ruled, when “a person lies does not tell the truth regarding critical matters to a reasonable woman”.
Several other men have been convicted of “rape by deception” since that ruling.
But the Kashur case appears to be the first time a person’s race has been used as the determining factor.
“In this case, the ruling seems to say that if a ‘reasonable’ Jewish woman knew a man was an Arab, then she would not make love to him,” Abeer Baker, an attorney with Adalah, an organisation that advocates for Arab rights in Israel, said.
Baker called it a “dangerous precedent,” saying it would allow the Israeli government to interfere in the private lives of citizens.
“It’s interfering in a very intimate, personal decision,” she said. “That should be made between two people. The court should not interfere.”
Similar laws have been controversial in other countries, as well. A man in the United States was convicted in 2007 of impersonating his brother in order to have sex with his girlfriend. That conviction was overturned on appeal, though, after an appellate court ruled that rape laws apply only to non-consensual sex.
Kashur’s case also highlights the open hostility with which many Israeli Jews view mixed relationships with Arabs, who make up one-fifth of the population of Israel.
A poll conducted in 2007 by Israel’s Geocartography Institute found that more than 50 per cent of Israeli Jews thought marrying an Arab was “equal to national treason”. Jews are legally forbidden to intermarry in Israel.
The Sunday Times reported in 2009 on a squad of “vigilantes” in the Jewish settlement of Pisgat Zeev. The group has patrolled the streets for more than a decade looking for mixed couples.
And in 2009, the town of Petah Tikva established a team of counsellors and psychologists to “rescue” Jewish women from relationships with Arab men.
The Israeli daily Maariv reported in February that Tel Aviv had launched a similar programme.
Such “fraud in the inducement” would not suffice for a rape conviction under the law of most American states (see, e.g., this case), though it’s an interesting question why it’s a crime to get money by fraud but not to get sex by fraud. There are good answers to that question, I think, but they’re not so obviously right as to keep the question from being interesting.
For some thoughts from last year on a proposal in Massachusetts that might have allowed liability in such a situation, see here. Also, it appears that a few American rape statutes might already criminalize sex procured through false statements. State v. Tizard, 897 S.W.2d 732 (Tenn. Ct. Crim. App. 1994) holds that Tennessee law rejects the distinction between “fraud in the inducement” and “fraud in the fact,” which is what has prevented rape prosecutions in cases such as the Israeli one; the facts of Tizard, though, are rather different — the defendant was lying about the supposed medical reason of the sexual act (there, the defendant’s masturbation of the victim, though the analysis would be the same for intercourse) rather than about the defendant’s identity. And some states generally provide that “assent does not constitute consent if … [i]t is induced by force, duress, or deception” (to quote Colo. Rev. Stats. Ann. § 18–1-505), which would in principle apply to rape cases as well.
If anyone can point me to the written opinion in the case, I’d be much obliged, both so I can blog about it and so I can use it in my Criminal Law class this Fall (I have a unit on fraud in the section on the law of rape). Thanks to Mike Sheridan for the pointer.
UPDATE: Several commenters raise a point that was also made by one of the source cited in the article: “Gideon Levy, a liberal Israeli commentator, was quoted as saying: ‘I would like to raise only one question with the judge. What if this guy had been a Jew who pretended to be a Muslim and had sex with a Muslim woman? Would he have been convicted of rape? The answer is: of course not.’”
It’s certainly possible that a court would have — and still would in the future, even given this decision — acquit this hypothetical Jew-pretending-to-be-a-Muslim defendant. But I’m just not sure that one can categorically assume this, especially in light of the judges’ rhetoric. It seems to me that Jewish judges might well think the lying Jew’s behavior is as deceptive, manipulative, and injurious to “the sanctity of [victims’] bodies and souls” as a lying Muslim’s, and that the deceived Muslim woman should be as protected as a deceived Jewish woman. And this is so even given the undoubted psychological reality that judges, like other people, generally tend to empathize more with people who are like themselves. Despite this reality, judges may still empathize enough with people who are less like themselves.
Now I’m certainly not an expert on Israeli judges’ attitudes, and I’d be happy to hear the views of people who have lived in Israel and have a sense of how the Israeli legal system would deal with this situation. But I’m reluctant to accept the assumptions of the one Israeli commentator who was quoted, at least unless I hear a broader range of people confirming his judgment.
That reads uncomfortably close to old miscegenation cases where judges sought to protect women from “smooth-taking” black men.
Even in cases where women have been falsely told that a lover does not carry an STD, the matter is addressed in the United States as a matter of civil not criminal battery. Does this mean that any false fact used in a one-night stand is now a criminal matter deserving of jail or it is only Arab status that gets that level of punishment? For example, if a Israeli man says he is unmarried and looking for a lasting relationship, can he be jailed? If so, the Israeli jail would be stuffed to over-capacity.
We have been following a crackdown on Israeli women dating Arab men recently.
Richard Lawson at Gawker
Frankly, one has to wonder about this case. I suspect it’s somewhat common for a man to tell a woman lies while trying to bed her.
In fact I heard about one case where a woman sued a man for lying because he said he would take her to Florida if she went to bed with him. The case was thrown out after the man explained that he never said he was going to take her to Florida, rather he said he was going to tamper with her.
Obtaining sex “under false pretences” is a crime in Israel? It’s against the law in Israel to get sex by feigning interest in “a serious romantic relationship”? OK, you bachelors out there, let’s have a show of hands: How many of you guys have ever lied to get some nookie?
Everybody? I thought so.
Just don’t try that in Jerusalem, buddy. And let this be a lesson to you Israeli ladies: Just because a goyim tells you it’s kosher . . .
UPDATE: Tracy Clark-Flory at Salon