25 July 2010

"Rape By Deception"...

You have to give it to the Israeli courts, they will be creative in their jurisprudence if it means protecting some absurd sanctity of Jewishness and purity. If you tell lies and mistruths or you misrepresent something, like who you are for example, you might be guilty of deception. But to say you are someone you are not, or to lead someone to believe you are someone you are not, seemingly gets you in a position where you can be guilty of rape by deception.

In essence, if you embellish your personal story to get laid, then you get laid and the other person finds out that you are not who or what you say you are, then you are guilty of raping that other person because they would not have willingly engaged in sexual relations with you if they had known the truth.

This brings us to the case of Saber Kushour. It is a story I came across as I plough through the news online. I found this story at The Guardian here. The article is based solely on the account of Kushour.

The story is a sad tale because Kushour is a married father of two, and irrespective of the outcome of the case he acknowledges that his stupidity has harmed his family.

Kushour is an Arab Israeli who speaks fluent Hebrew without an Arab accent, and obviously passes for a Jew in some circumstances. Perhaps he now wishes that he did not in hindsight. Kushour has been sentenced to eighteen months in jail for the rape by deception of a Jewish woman.

The sex was consensual at the time and lasted a mere 15 minutes. Kushour's case is on appeal and attracting considerable attention in Israel for the underlying racist nature of the sentence and what this says about justice in Israel, and perhaps what is morally acceptable to Israelis in general.

Why has Kushour been sentenced to prison? This is a crude tale, an adulterous tale, where a single Jewish woman propositions a married Arab Israeli man and then has sex with him on a rooftop. To be fair the Jewish woman does not know that Kushour is married. But, Kushour is married and seemingly figured it was a good idea to avail himself of an opportunity to have a casual sexual encounter that his wife would never find out about. Unfortunately for Kushour, the Jewish woman when she found out that Kushour was really an Arab Israeli and not a Jew she lodged a police complaint claiming that she never would have had sex with him if she had known he was an Arab Israeli and not a Jew.

So, what was the legal reasoning of the judge, Zvi Segal, in this case that would allow a decision like this to be reached:

'Judge Segal conceded that it was not "a classical rape by force". He added: "If she hadn't thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated. 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."' (from the Guardian).

The problem with this reasoning is that the woman was clearly not thinking about the sanctity of her body or soul when she engaged in the consensual sexual activity. The reality is she picked a man up off the street and then had sex with him on a rooftop. The judge has seemingly gone above an beyond in constructing his decision based on the need to protect the public interest from smooth talking criminals.

It would seem that Kushour's crime is that he suggested to the Jewish woman that he was a bachelor interested in a long-term relationship. In addition to the failure to be explicit in saying to the Jewish woman. "before we have sex you should know that I am an Arab Israeli, are you still interested in proceeding with our sexual encounter?" However, it must be pointed out that the Jewish woman did not ask about Kushour's lineage either.

The judge has then decided that the Jewish woman would not have 'co-operated' if she had known that Kushour was not a bachelor, and presumably she definitely would not have proceeded had she known he was an Arab Israeli. Yet, I would argue that the simple fact that she picked this man up while he was out buying cigarettes and then had sex with him on a nearby roof suggests that she was not all that interested in a period of courtship, marriage, and then sexual relations.

Kushour might be an adulterer but he is not a rapist.

If I can find what the appeal court decides in this case I will add a postscript to this post. If the appeal court upholds this decision it will be interesting to see if anyone tries to argue and introduce it in other jurisdictions.


H. Nizam said...

Hi Rob,
I agree that the man is not a rapist because he did not force the woman to have sex with him.

Rob Baiton said...

@ Harry...

Ahhhh, but he currently is under the interpretation being used in Israel at the moment.

Just goes to show you how creative minds can manipulate the law to get outrageous results if they try hard enough!

pj said...

There has been an interesting development in this case. You might want to check out Lisa goldmans blog or Yaacov Lozowicks Ruminations. Apparently the conviction was a plea bargain.

Rob Baiton said...

@ PJ...

Thanks! Thanks for forcing me to come back to this case. I always planned to, but perhaps had been using the excuse of too many assessment tasks to avoid a speedy return.

It is interesting how one (in this case me) can rush to judgment. However, it would seem that I was not the only one! Nevertheless, in my own defense I rushed to judgment on the facts available at the time, and now take the opportunity of any implied sense of being able to redress my view in light of new facts becoming available.

I have read Lisa Goldman's take on the case. I have also read the translation of the Haaretz article over at a blog called "Mideast Youth".

I am about to write an updated post on this sorry affair. If you feel so inclined, comment on that as well. Your links and insights are always appreciated.